author: Mr. Justice Stewart,

text:
    Hughes v. Central Accident Insurance Company, Appellant.

      Insurance — Accident insurance — Immediate notice — Question for jury— Reasonable time.

    In. an action upon a policy of accident insurance requiring immediate notice to be given of an accident, the word “immediate” is to be construed as meaning a reasonable time after the accident under the facts and circumstances of the particular case.
    The court is justified in ruling as a matter of law that notice has not been given in time only where the admitted facts and circumstances disclose nothing by way of extenuation or excuse.
    Where a passenger on a railroad train, struck by a cinder in the eye, experiences no immediate ill results, but five weeks afterwards is informed by a physician that a cataract is forming on his eye as a result of the accident, and notice is thereupon immediately given to an accident insurance company in which the passenger was insured, the question whether the notice was given within a reasonable time under the circumstances, is a question for the jury.
    Where a person insured in an accident insurance company gives a notice, sufficient in form, of an accident to himself, and the company denies all liability on the sole ground that the notice was too late, but subsequently sends the insured a blank form with a letter in which, while denying liability, and not admitting any waiver, it requested the insured to state the facts on the form so that if he had any equity it might be ascertained, the blank filled out by the insured, in form a sufficient proof of loss, is for the consideration of the jury as one of the elements in the case.
    While courts will extend all reasonable protection to insurers, by allowing them to hedge themselves about by conditions intended to guard against fraud, carelessness, want of interest, and the like, they will nevertheless enforce the salutary rule of 'construction, that as the language of the conditions is theirs, and it is therefore in their power to provide for every proper case, it is to be construed most favorably to the insured.
    An unqualified refusal by an insurance company to pay a loss based on facts within the company’s knowledge, and made under such circumstances as- to justify the insured in believing that the rendition of proofs would be a vain act, and that they would not be examined, is equivalent to an express agreement of waiver.
    Where an accident insurance company denies all liability on the sole ground that notice of the accident had not been sent in time, it cannot set up as a defense to the policy that the proofs of loss had not been furnished.
    Argued Oct. 7, 1908.
    Appeal, No. 123, Oct. T., 1908, by defendant, from judgment of C. P. Jefferson Co., Aug. T., 1905, No. 334, on verdict for plaintiff in case of Clifton Hughes v. Central Accident Insurance Company of Pittsburg.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a policy of accident insurance. Before Reed, P.J.
    The facts are stated in the opinion of the Supreme Court.
    Defendant presented, inter alia, these points:
    1. If the plaintiff received the injury he alleges on December 14,1904, the notice received by the company on January 31, 1905, was not a compliance by the plaintiff with the provision of the policy that “ immediate written notice must be given the company at Pittsburg, Pa., of any accident and injury for which a claim is to be made, with full particulars thereof, and full name and address of the insured.” Answer: Refused. [5]
    4. There is no sufficient evidence that the company waived that provision of the policy which has just been referred to. Answer: Refused. If the jury find that the defendant denied all liability under the policy on the ground that the preliminary notice therein provided for had not been given in time, such denial of liability would be evidence of a waiver of proofs of loss, and the sufficiency of the evidence to establish such waiver is for the jury. [6]
    8. Under the undisputed evidence in the case the plaintiff has not shown the irrecoverable loss of the sight of his eye within the provision of the policy entitling him to specific benefits for the irrecoverable loss of the sight of an eye within ninety days from the date of accident. Answer: Refused. [7]
    The court below charged in part as follows:
    [But what is meant by immediate written notice is notice within a reasonable time after the accident, and what is a reasonable time is for the jury to determine under the facts and circumstances of the case.] [8]
    [Under the peculiar circumstances of this case and especially in view of the fact that the plaintiff did not know and had no reasonable grounds for anticipating the result of the injury to his eye until on- or about the time he notified the defendant company of the accident, I do not think the court is warranted in saying as a matter of law that that notice was not given in time, and I therefore submit it as a question of fact to be determined by the jury.] [9]
    Verdict and judgment for plaintiff for $3,974.60. Defendant appealed.

      Errors assigned among others were (5-9) above instructions, quoting'them.

      Stephen Stone, with him William A. Stone, Charles Corbet, Edward A. Carmalt and Nathan L. Strong, for appellant.
    Notice was not given in time: Williams v. Preferred Mut. Accident Assn., 91 Ga. 698 (17 S. E. Repr. 982); Hatch v. U. S. Casualty Co., 83 N. E. Repr. 398; Ry. Pass. Assur. Co. v. Bur-well, 44 Ind. 460; Travelers’ Ins. Co. v. Nax, 35 Ins. Law Journ. 539; Dunshee v. Travelers’ Ins. Co., 25 Pa. Superior Ct. 559; Merrill v. Ins. Co., 91 Wis. 329 (64 N. W. Repr. 1039).

      Cadmus Z. Gordon, with him Jacob L. Fisher, for appellee,
    cited: Humphreys v. Benefit Assn., 139 Pa. 264; Reynolds v. Maryland Casualty Co., 30 Pa. Superior Ct. 456; McFarland v. Mut. Accident Assn., 124 Mo. 204 (27 S. W. Repr. 436); Kentzler v. American Mut. Accident Assn., 88 Wis. 589 (60 N. W. Repr. 1002); Mandell v. Fidelity & Casualty Co., 170 Mass. 173 (49 N. E. Repr. 110); Harnden v. Ins. Co., 164 Mass. 382 (41 N. E. Repr. 658); Home Ins. Co. v. Davis, 98 Pa. 280.
    January 4, 1909:
   Opinion by

Mr. Justice Stewart,

The plaintiff, while a passenger in a railroad car, received a wound in his right eye through external, violent and accidental means, independently of all other causes, which resulted in a total and irrecoverable loss of vision in the injured eye. The jury so found, upon evidence which, if convincing to them, was entirely sufficient to support their verdict. The only questions raised by the assignments which call for consideration, are those which challenge the sufficiency of plaintiff’s compliance with the provisions of the policy under which he was insured, in the matter of notice and proofs. The policy contains the following provision: “Immediate written notice must be given to the company at Pittsburg, Pa., of any accident and injury for which a claim is to be made, with full particulars thereof, and full name and address of the insured.” The accident occurred December 14, 1904; the written notice of the accident was not given to the company until January 27, following. Appellant complains that the delay in notifying the company was so great that the court should have decided it as a matter of law adversely to the plaintiff. It has been repeatedly ruled in actions under policies requiring immediate notice to be given of the accident, that the word “immediate” is to be construed' as meaning a reasonable time after the accident, under the facts and circumstances of the particular case. Cases arise where the delay has been so great that the court is fully justified in ruling it as a matter of law; but this occurs only where the admitted facts and circumstances disclose nothing by way of extenuation or excuse. Where the facts are sufficient to account in some measure for the delay, without reflecting upon the diligence or good faith of the assured, it is for the jury to say whether the delay was reasonable or not under the circumstances. The present case is in some respects exceptional. The finding of the jury refers the plaintiff’s loss of vision in his right eye to the accident which happened in a railroad car, thus described by Dr. Zeigler, an expert witness, called by the plaintiff: “A perforation of the lens by a minute foreign body, or of some anterior portion of the eyeball, which caused an inflammation of the tissues surrounding the lens, thereby disturbing its nutrition, a cataract resulting therefrom.” When a passenger in a railroad car is so unfortunate as to get a cinder in his eye — and that is just what happened to this plaintiff — it is not such an unusual occurrence as to occasion surprise, or create any special anxiety as to results, unless indeed the irritation and pain should long continue. A disappearance or subsidence of the irritation usually denotes, at least to people without technical or scientific knowledge in regard to such matters, that the foreign substance that caused the disturbance has not found lódgment in the eye, and it at once ceases to be a matter of concern. The plaintiff was made painfully aware of the fact that he had been struck in his right eye by a spicula of some sort, supposed by him to be a cinder. He called to his assistance a fellow passenger, who upon examination could find nothing foreign in the eye. The irritation and pain that followed the accident continued during the afternoon and night, but by the next morning both had subsided, and the inconvenience and discomfort, then but slight, soon disappeared entirely. The plaintiff resumed his work as a practicing dentist, and gave the accident no further thought. Several weeks afterwards, however, realizing some impairment of vision in the eye that had been injured, he had the eye examined by a physician who happened in his house on a social call. The examination there made was superficial, but the doctor expressed the opinion that a cataract was forming in the eye. Within a week or two after, either on January 4 or 9, the dimness of vision meanwhile having increased, plaintiff consulted Dr. Walters, a specialist, who found the beginning of a cataract, but no exciting cause for it. Now it may be that had the plaintiff been given to understand at either of these examinations, that the cataract forming in his eye, could be attributed to the injury he had received in the car, it would have been his duty at once to have notified the company of the accident. But it is impossible to derive any such fact from the evidence, at least with that certainty with which it must be made to appear before the court could accept it as a fact. Dr. Walters says that he thought that the cataract might be “traumatic” in its nature, but he does not say that he so told the plaintiff; and it is by no means certain that the latter would have understood its relation to the accident had he been so told. The association between cataract and a spicula of cinder which weeks before had found its way within the eye and irritated it for a day, would not be likely to occur to the unscientific mind. It did not occur to Dr. Walters until his second examination on January 27, the day plaintiff sent his notice to the company; nor did it occur to Dr. Zeigler, another of plaintiff’s expert witnesses, until after his second examination on May 13; and it has not yet occurred to Dr. Robinson, who testifying on behalf of the defendant, says there was no connection whatever between the cataract which blinded plaintiff’s eyé and the cinder accident, and that in all his experience, admittedly large, he has never seen a cataract caused by cinder getting in the eye. When did the plaintiff first have reason to believe that his loss of sight resulted from the accident in the car? The answer to this question would largely determine whether the notice to the company was unreasonably delayed. Like all other questions of fact in the case, it was for the jury; and the court very properly left it with them under very full and fair instructions as to the law. The notice in the case, though it did not indicate specifically the day on which the accident happened, stated the time .approximately, and stated specifically where and under what circumstances it had occurred. Although directed to the agent of the company, and not to the home office, yet it was forwarded at once by the agent to the company and its receipt was acknowledged. In point of substance it fairly met the requirements of the policy.

The policy contained this further provision — “affirmative proof of death by external, violent and accidental means, or of loss of limb or sight, or of duration of disability, must also be furnished to the company within two months from the time of death, or loss of limb, or sight, or of the termination of disability.” Nothing is specified as to the extent or character or mode of the proof required, except that it be affirmative. In its letter to the plaintiff acknowledging the receipt of the notice sent as to the accident, the company in positive and express terms refused to recognize any liability to the plaintiff, on the ground that the notice given, did not follow immediately upon the accident. This letter reads in part as follows: “We hardly feel, Doctor, that we can for a moment consider the claim, the notice of which comes to us at so late a date. If you will kindly refer to your policy you will find that notice of accidental injury must be given to the company immediately. . . . We are extremely sorry that this matter was neglected on your part, but a safe and businesslike conduct of insurance business will not permit us to disregard so vital a provision of the contract.” The week following the receipt of this letter, the plaintiff wrote to the company, stating as the reason of delay in giving notice of the accident, that he had not expected serious results, and that it was only when the doctor advised him fully as to the situation that he traced his present condition — loss of sight in the right eye — to the accident. The reply of the company under date of February 11 was another equally positive and explicit denial of liability, on the ground of delay in giving notice; but it expressed a willingness on the part of the company that the plaintiff submit the facts of his case, not proofs. The letter proceeds: “Now strictly speaking as we have said béfore, we cannot consider ourselves liable under our policy for the injury you suffered. Still we are perfectly willing, if you desire, that you submit the facts of your case. Perhaps there may be an equity in it, and we will look into the matter and allow that equity. Legally we are not liable and cannot bar out the conditions of our policy, but if you desire to fill up the enclosed blanks you may do so. We send them with reservation of all our rights, waiving under the conditions of the policy, but simply that you may present the facts to us, and that you may show under what basis you are asking us to recognize a claim or some equities for your disability and loss.” The blanks furnished the company were filled up and forwarded April 4; the delay in forwarding being due to the absence of Dr. Walters. The blank filled up by Dr. Walters, accompanied by his jurat, may be fairly regarded as the affirmative proof required by the policy. It contained an express averment that plaintiff while riding in the train was struck in the eye'by a foreign body, which lodged in the eye, and that some weeks later in examining the eye he found a cataract practically producing total blindness. If anything more than this was required by the company it should so have appeared in the policy. “While courts will extend all reasonable protection to insurers, by allowing them to hedge themselves about by conditions intended to guard against fraud, carelessness, want of interest, and the like, they will nevertheless enforce the salutary rule of construction, that as the language of the conditions is theirs, and is therefore in their power to provide for every proper case, it is to be construed most favorably to the insured: May on Insurance, sec. 175.

The sworn statement of Dr. Walters was affirmative proof of what was claimed by the plaintiff as to the cause of the accident and the extent of his injury. It was not, as we have seen, submitted as proof of loss; but it nevertheless answered the whole purpose of 'the policy requirements, in sustaining and corroborating the plaintiff’s statement in its material features. It is unimportant what the purpose was in forwarding it, if it met the requirements of the policy. The learned trial judge so held and submitted it to the jury to determine whether it had been forwarded without unreasonable delay.

But apart from this, even though the proofs were defective and were not sent within'the required time, the defendant was not in position to defend on any such ground. It disclaimed liability on the policy immediately upon receipt of notice of the accident, on the ground that the notice came too late. It asserted and reasserted its determination to refuse payment because of the plaintiff’s default in this respect, and only sent the blanks for proofs to the plaintiff because of his importunity, and to the end that it might determine whether there were equitable considerations which should move them, not to pay a legal obligation, but rather to extend charitable relief. It is settled law that an unqualified refusal to pay a loss, based on facts within the company’s knowledge, and made under such circumstances as to justify the insured in believing that the rendition of proofs would be a vain act, and that they would not be examined, is an equivalent of an express agreement of waiver. The rule is thus stated in May on Insurance, sec. 469: “A distinct denial of liability and refusal to pay, on the ground that there is no contract, or that there is no liability, is a waiver of the condition requiring proof of the loss. It is equivalent to a declaration that they will not pay though the proof be furnished; and to require the presentation of proof in such a case, when it can be of no importance to either party, and the conduct of the party in favor of whom the stipulation is made, has rendered it practically superfluous, is but an idle formality, the observance of which the law will not require.” The doctrine here expressed has received repeated recognition by this court. We need only refer to Penna. Fire Ins. Co. v. Dougherty, 102 Pa. 568; Inland Ins., etc., Co. v. Stauffer, 33 Pa. 397; Home Ins. Co. v. Davis, 98 Pa. 280; Lebanon Mutual Ins. Co. v. Erb, 112 Pa. 149.

A review of the whole case has satisfied us that appellant is without cause of complaint. It was fairly submitted on the facts, and the instructions as to the law were correct. Appellant was given a larger latitude in its defense than it was entitled to claim.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Schlemmer, Appellant, v. Buffalo, Rochester & Pittsburg Railway Company.

      Negligence — Railroads—Master and servant — Brakeman—Contributory negligence.

    In an action against a railroad company to recover damages for the death of a brakeman in its service, no recovery can be had where the evidence is indisputable that the decedent not only attempted to make a coupling in a dangerous way when his attention was directly called to a safer way, but also did it with reckless disregard of his personal safety by raising his head- though twice expressly cautioned at the time as to the danger of so doing.
    Any negligence of a party injured which contributed to his injury bars his recovery "of damages without regard to the negligence, either greater or less than his own, of the other party.
    Argued Oct. 8, 1908.
    Appeal, No. 135, Oct. T., 1908, by plaintiff, from judgment of C. P. Jefferson Co., April T., 1901, No. 194, for defendant non obstante veredicto in case of Catherine Schlemmer, now Catherine Craig, v. The Buffalo, Rochester & Pittsburg Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Reed, P. J.
    At the trial it appeared that the action was brought to recover damages for death of plaintiff’s husband employed as a brakeman by the defendant. The accident happened between eight and nine o’clock on the evening of April 5, 1900, while the deceased was attempting to couple a caboose to a steam shovel attached to the rear of a train of seventeen cars. It was shown that the coupler on the steam shovel was somewhat unusual in form, but it also appeared that the deceased was an experienced brakeman. The evidence tended to show that the deceased had knowledge of the character of the coupler, and knew that if he got his head or any part of his body between the ends of the cars, in attempting to make the coupling, it would be crushed. A yard conductor advised the deceased to push the caboose up by hand to the steam shovel, and when the deceased rejected this advice he was told twice to get down and keep down, so as not to get caught in the crush between the cars. In spite of this warning the deceased did not keep his head down, and it was caught between the ends of the cars and crushed. The jury returned a verdict in favor of the plaintiff for $10,000. The court subsequently entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      A. J. Truitt, with him Charles Corbet, for appellant.

      C. Z. Gordon and C. H. M’Cauley, with them John G. Whit-more, for appellee.
    January 4, 1909:
   Per Curiam,

It is the settled law of Pennsylvania that any negligence of a party injured, which contributed to his injury, bars his recovery of damages without regard to the negligence either greater or less than his own, of the other party. The present is a clear case of contributory negligence within this rule. The evidence is indisputable that the unfortunate decedent not only attempted to make the coupling in a dangerous way when his attention was directly called to a safer way, but also did it with reckless disregard of his personal safety by raising his head though twice expressly cautioned at the time as to the danger of so doing.

Judgment affirmed.


text:
    Collins, Appellant, v. Clough.

      Land, law — Warrants—Surveys—Boundaries—Older and younger loot tions.

    When the true division line between two or more adjoining tracts alike claimed under original warrants, is the subject of dispute, and tha line once ascertained is a determining factor, the first thing to do is t ascertain, if possible, which of the two tracts was first located.
    Where in an ejectment the plaintiffs claim under one warrant and th< defendants under three warrants, and it appears that the returns of th< surveys fpr all the warrants were made on the same day and that the locations of the three surveys under which the defendants claimed called for the plaintiffs’ warrant on the northeast, while the location of the plaintiffs’ survey called for vacant land on its southwest boundary, the evidence is conclusive that the plaintiffs’ survey was earlier in time than the defendants’ survey, and there is no question of priority to submit to a jury.
    As the calls in surveys for trees and other objects indicating corners are conclusive with respect to such corners, so calls for adjoiners, as like declarations of the surveyor, that such adjoining tracts had been previously located, are equally conclusive of the facts declared.
    The survey of an independent, separate member of an established block of surveys, is to be located by the work of the surveyor found upon the ground, if it can be traced, that is, by its own marks and monuments, aided if need be by the legal presumption. Where admitted marks and monuments are found answering to the calls of the survey, they establish conclusively the location. If some only of these original marks and monuments can be found, it is entirely competent to show that others answering to the calls did at one time exist and where. If the testimony fails to supply them all, the legal presumption will supply those unaccounted for.
    It is only in the absence of original marks and monuments upon the ground, and thé total failure of evidence to supply them, that recourse can be had to the lines and calls of the block, or the lines and calls of any junior member of that block, or any other. Both these methods cannot be resorted to at the same time.
    Where in an action of ejectment the return of a survey under which the plaintiffs’ claimed shows conclusively that plaintiffs’ location was the older in a block of surveys, and the plaintiffs offer evidence of marks on the ground to establish the line, it is error to submit to the jury both the question of the priority of the location and the question of the existence of the marks, and if the trial results in a verdict and judgment • for the defendants, the judgment will be reversed.

      Land law — Evidence—Declarations of deceased surveyor.

    The rule that declarations of a deceased owner with respect to boundary are competent evidence only when made on the ground,'applies also to declarations of a deceased surveyor. Such declarations are admissible on the principle of res gestse, and not to establish reputation.
    The field notes of a deceased surveyor are admissible as declarations contemporaneous with the work done on the ground, provided they are authenticated in some other way than by the mere declarations of the surveyor himself.
    Argued Oct. 8, 1908.
    Appeal, No. 43, Oct. T., 1908, by plaintiffs, from judgment of C. P. Forest Co., Sept. T., 1905, No. 5, on verdict for defendants in case of T. D. Collins et al. v. L. S. Clough et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Ejectment for 1,200 acres of land in Kingsley and Howe townships. Before Thomas, P. J., specially presiding.
    The opinion of the Supreme Court states the facts.
    At the trial when W. W. Whitekin, a witness for the plaintiff was on the stand, he was asked the following questions:
    “Q. Did you find a line running the official course? A. Yes, sir. Q. From that spruce? A. Which spruce have you reference to? Q. That spruce at the western corner of 5266? A. I didn’t find any original lines, I found a more recent line. Q. Do you know from the appearance of that line, who ran it. A. I would say Richard Irwin. Q. Where did that line lead? A. It led north forty-five degrees east for 595 rods according to my measurement and stopped on the northeastern line of what is shown on the map as No. 5236. Q. Is there any original work on that line? A. There was none. Q. Was there any original corner when you reached the northeast line? A. There was not. Q. Now where is the black oak located with reference to that point of it striking the line? A. I never saw the black oak. Q. Do you know where it is claimed to be? ”
    Objected to as incompetent and irrelevant.
    “Q. Did anybody ever point it out to you, the location of that black oak that would be the northern corner of 5266? A. Not on the ground, no, sir. Q. Did anybody off the ground ever tell you where it was?”
    Objected to.
    “Q. Did anybody ever tell you where that black oak was located? A. Yes, sir.”
    Mr. Cole: 1. We propose to prove by the witness that he knew Mr. Irwin, that he was a surveyor of large experience in this county, that he survyed on the land and lines to which the testimony of the witness refers, that he furnished him field notes and that with the use of these field notes the witness went upon the ground and located the lines, or some of them, to which he has testified, finding the field notes corresponding with the location which he has given. For the purpose of showing that Judge Irwin had actually examined these lines and had knowledge of them.
    2. Also propose to show that Richard Irwin, in the conversation referred to and also by field notes, identified the point marked on the map as the Irwin Beech, as the easterly corner of 5266 and the point marked as the Irwin Black Oak as the northeastern corner thereof. This testimony to be followed by the testimony of other persons including the son of Richard Irwin, who was himself a surveyor, who has had custody of his father’s field notes since his death, to prove that his father identified the Irwin Beech so called and the Irwin Black Oak so called as the original corners at the northeasterly end of 5266'.

      3. Also to prove by that witness that the line dating to 1836 is the line with the peculiar marks of Richard Irwin, his father, and to prove that he did in fact run that line in 1836 from the spruce, the southeasterly corner of 5266 to the Irwin beech so called, the easterly corner thereof, and that he then and subsequently located 5266 by his survey as located by the plaintiffs and on their map and by the witness on the stand.
    This testimony also to be supplemented by a draft made by Richard Irwin in his lifetime showing the location to which this offer refers, as being identical with the location claimed by the plaintiffs and exhibited by the map.
    Objected to as incompetent and irrelevant.
    The Court: We will allow you to show what Richard Irwin said while upon the ground or in the presence of any of the marks on the lines, and we will permit this witness to testify to what he did on the ground in pursuance to anything that Richard Irwin told him, but as to statements that Richard Irwin may have made to this witness not on the ground, the objection is sustained and exception sealed for the plaintiffs.
    To so much of the ruling as allows the witness to tell what he did in pursuance of the conversation he had with Richard Irwin, exception is sealed for defendants. [1]
    S. D. Irwin recalled, examined by Mr. Cole and testified as follows:
    “Q. What was your father’s business? A. He was a'surveyor. Q. State whether or not he held any official position as surveyor? A. He did, for a number of years he was deputy surveyor. Q. That is, deputy surveyor under the state? A. Yes, sir, he signed his papers 'D. S.,’ deputy surveyor for a good many years. Q. How long did that continue? A. Well, it was for quite a number of years, I can’t remember exactly. Q. What would you say as to whether he held that position in 1836?”
    Objected to as incompetent.
    The Court: If he knows, I think it would be competent to show it. Objection overruled and exception sealed for defendants.
    “Q. State whether he was the deputy surveyor in 1836? A. Well, I believe he was. Of course, I wás born in 1835, and I refer to papers entirely that I have seen. I know’ that he surveyed in all counties around, and worked as deputy surveyor a great deal. Q. What counties did he survey in, starting from the time the witness knew? A. Crawford, Clarion, Warren and Mercer. And surveyed in Warren county, north to the state line, in New York. He and his uncle surveyed that along about 1818 or ’20. Of course I know my maps and what he showed me, etc. Q. Did you have a conversation with him concerning the location of 5266, and 5282, and, what is known as the Mead base line or division line?”
    Objected to.
    Mr. Murray: It appearing by the witness that he is the son of Judge Irwin and that he was a surveyor of large experience, and it having also appeared that he surveyed the land in question, it is proposed, to prove by the witness, that in the year 1865 and 1866, when the witness went upon the ground to do surveying himself upon the line and land in dispute, that he had a conversation with his father, Judge Irwin, in which he referred to the beech, the easterly corner of 5266, as alleged by the plaintiffs and as shown on plaintiffs’ map, and the black oak, the northeasterly corner of the same survey, as claimed by the plaintiffs and shown by their map, that his father stated to him that these were the northeasterly boundary of 5266. It is also proposed to follow this testimony with testimony from the witness on the stand, that with this information, he went upon the land and located the comers designated by his father and traced the line made by his father, leading from the beech to the hemlock, being the southeasterly line of 5266, as his father had located it. This for the purpose of showing the declarations of a deceased surveyor, bearing upon the location in dispute, it appearing by the testimony of the witness that his father left in his hands, before his death, his books and papers relating' to the location in dispute as well as other land.
    Objected to as incompetent and irrelevant.
    The Court: The objection is sustained and exception sealed for plaintiffs. [2]

      Verdict and judgment for defendants. Plaintiffs appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (12) in qualification of the affirmance of plaintiff’s third point, quoted in the opinion of the Supreme Court, and (21) that the charge was inadequate.

      Thomas H. Murray and A. L. Cole, with them Ritchie & Carringer and C. Z. Gordon, for appellants.
    We deny that it is a requisite to the admission of deceased surveyor’s declarations that they must have been made on the ground: Potts v. Everhart, 26 Pa. 493; McIldowny v. Williams, 28 Pa. 492; Sheaffer v. Eakman, 56 Pa. 144; Bender v. Pitzer, 27 Pa. 333; Birmingham Borough v. Anderson, 40 Pa. 506; McCausland v. Fleming, 63 Pa. 36.
    The prior location of 5266 was a question of law.
    If the boundary to be ascertained has been returned as here, as a line fixed by then living trees, and the trees be located, they determine that boundary, and that boundary so located cannot be overborne or contradicted by calls or official distances or other lines or monuments not returned as monuments of the survey in question: Bloom v. Ferguson, 128 Pa. 362; Lehigh Valley Coal Co. v. Lumber Co., 203 Pa. 544; Nieman v. Ward, 1 W. & S. 68.
    It is not true that after 113 years the effect of the prior number or date of a warrant for a plotted survey calling for another, located by living corners, can be made a question for the jury, as against the prior location of that other survey: Simpson v. Morris, 3 Yeates, 104.
    This is not a case for block location. Each of the surveys here involved upon both sides have marks and monuments of their own to fix their location. Each party claims to have identified two or more corners of each survey by original work; 5266 is shown clearly by the direct testimony upon both sides to have two original corners in place, besides the testimony as to the two other corners. In such case the survey is to be located by its own work: Bloom v. Ferguson, 128 Pa. 362; Lehigh Valley Coal Co. v. Lumber Co., 203 Pa. 544.

      S. P. Wolverton and D. I. Ball, with them A. C. Brown, W. D. Hinckley, W. E. Bice and J. H. Alexander, for appellees.
    There is no principle of law in Pennsylvania better settled than that where several tracts of land were originally surveyed and returned into the land office in a block, they must be located on the ground in a block, and the inquiry is not where the tract should or might have been located, but where it actually was located, and that every mark on the ground tending to show the location of any tract in a block is evidence of the location of the whole block, and therefore of every tract in the block: Malone v. Sallada, 48 Pa. 419; Pruner v. Brisbin, 98 Pa. 202; Glass v. Gilbert, 58 Pa. 266; Northumberland Coal Co. v. Clement, 95 Pa. 126; Darrah v. Bryant, 56 Pa. 69; Fritz v. Brandon, 78 Pa. 342; Christ v. Thompson, 2 Cent. Repr. 523; Ferguson v. Bloom, 144 Pa. 549; Grier v. Penna. Coal Co., 128 Pa. 79; Morrison v. Seaman, 183 Pa. 74; Knupp v. Barnard, 206 Pa. 280.
    No cases in Pennsylvania have ever gone to the extent in the admission of declarations of deceased surveyors, that counsel for appellants ask the court below to go in these assignments.
    Under the authorities neither the declarations of the deceased surveyor nor his filed notes were evidence: Clement v. Packer, 125 U. S. 309 (8 Sup. Ct. Repr. 907); Kennedy v. Lubold, 88 Pa. 246; Kramer v. Goodlander, 98 Pa. 366; Bender v. Pitzer, 27 Pa. 333; Ellicott v. Pearl, 35 U. S. 412.
    January 4, 1909:
   Opinion by

Mr. Justice Stewart,

When the true division line between two or more adjoining tracts, alike claimed under original warrants, is the subject of dispute, and that line once ascertained is a determining factor, the first thing to do is to ascertain, if possible, which of the two tracts was first located. In an issue such as this, the party holding under the earlier location has certain advantage resulting therefrom; since the prior location limits the call of the junior, however much such limitation may disappoint. To state this case: The plaintiffs claim that the land in controversy is included within the limits of warrant No. 5266, one of a series of warrants issued to George Mead, February 26, 1794, and returned as surveyed and located April 26, 1794. A series of warrants had been issued to Jonathan Mifflin twenty-two days before the Mead warrants were issued. Defendants hold under warrants Nos. 5104 and 5101 of the former series, and No. 5882 of the Mead. These Mifflin warrants though issued earlier than the Mead were returned the same day to the land office, and the return shows that all, both Mifflin and Mead, were surveyed the same day, April 26, 1794. Defendants claim that the land in controversy is properly included within the limits of their three warrants which as located adjoin each other. The plaintiffs’ location is immediately above, that is, to the northeast of defendants’ tracts. Their relative positions are about as here indicated.

5 2 6 6

5104 5101 5182

The actual work required in making these surveys together with the others returned as of the same date, seems to suggest inaccuracy in the statement that all the surveys were made on the same day; yet accepting the statement as correct, some one tract must have had priority of location over all the others, and each excepting the last, priority over some other; for there could be no such thing as simultaneous surveys; and it matters not whether the difference between them be measured by hours or days. If No. 5266 had the earlier location, its boundary lines on the southeast thus established would determine the controversy. If defendants’ tracts were located before No. 5266, then their northeast boundary wherever established would determine it. Which was the earlier, was a preliminary question, provided the evidence warranted a legal conclusion with respect to it; if not, it became a question which the jury could alone decide. The facts were these. The return of the survey of defendants’ opposing warrant for No. 5101, the whole of which lies southwest of No. 5266, calls for George Mead tract No. 5266 as its boundary and adjoiner on the northeast; the opposing warrant'No. 5282 calls in part for the same boundary on the northeast; and that of No. 5104 calls for land of George Mead generally as its boundary; whilst No. 5266 calls for vacant land on its southwest. What other conclusion is possible from this than that No. 5266 must have been located before the others were surveyed? How could its southern line become the northern boundary of the other tracts, except it has been first located. Then, too, the fact that while the return of No. 5266 shows that on three sides it was bounded by specific individual surveys of Mead warrants according to their number, the call is for vacant land on the side where defendants’ land adjoins, clearly indicates that the warrants for defendants’ lands had not then been laid: Gratz v. Hoover, 16 Pa. 232. In Salmon Creek Lumber Co. v. Dusenberry, 110 Pa. 446, Mr. Justice Gordon says, speaking of just such calls as we have here, “They are part and parcel of the survey, and as infallibly indicate adjoiner, and the adoption of the lines of such adjoiner, as do the calls for trees and other objects indicate corners and courses of lines on the ground.” As the calls in surveys for trees and other objects indicating corners are conclusive with respect to such corners, so calls for adjoiners, as like declarations of the surveyor, that such adjoining tracts had previously been located, are equally conclusive of the facts declared. This being the situation, the court should have held as a matter of law that priority of location was with the plaintiffs. With nothing to support a claim for priority in any of the tracts under which defendants hold, except the bare presumption that the surveyor located his warrants in the order in which they were issued, because of his direction so to do, a finding by the jury in their favor on this bare presumption in the face of the positive and unchallenged declarations which, appear on the face of his returns, that he had disregarded these directions, could not be sustained. Plaintiffs’ third request for instructions was as follows: “The question in this case for the jury to determine is the true location of the southwest line of No. 5266,” and this correctly indicated the one governing fact. It should have been unequivocally affirmed; but instead, the affirmance was conditioned on the jury finding that the line had been located prior to the location of the tracts adjoining which are alleged to interfere. This was error, and the eleventh assignment which complains of it is sustained. So to the assignments which complain of those portions of the charge in which the question of priority of location as between these warrants was submitted to the jury. With the question of priority of location settled, it would yet remain with the plaintiffs to show that the original location of the warrants under which they claim, embraces the disputed territory. The law indicates in no uncertain way the kind of evidence required for the purpose, and makes clear distinction between what is best and what but secondary. Involved in the very idea of priority is that of separate individual location. We are then dealing here with a survey actually made of an independent, separate member of an established block. Such a survey is to be located by the work of the surveyor found upon the ground, if it can be traced; in other words, by its own marks and monuments, aided, if need be, by the legal presumption: Ferguson v. Bloom, 144 Pa. 549. Where admitted marks and monuments are found answering to the calls of the survey, they establish conclusively the location. As has been said, these are the official footsteps of the deputy surveyor, and are therefore the highest and best evidence of the true location. If some only of these original marks and monuments can be found, it is entirely competent to show that others answering to the calls did at one time exist, and where. If the testimony fails to supply them all, the legal presumption will supply those unaccounted for. It is only in the absence of such marks upon the ground, and the total failure of the evidence to supply them, that recourse can be had to the lines and calls of the block, or the lines and calls of any junior member of that block or any other. Both these methods cannot be resorted to at the same time: Ferguson v. Bloom, 144 Pa. 549; Grier v. Penna. Coal Company, 128 Pa. 79. The plaintiffs do not contend that the evidence adduced by them establishes all the monuments called for in their survey as p.yist.ing at the present time; but they insist that between such as they have shown to exist and those which their evidence shows once existed, their true southeast line was established in the only legal way that it could be determined. In view of the ruling already made, it is unnecessary to state any more specifically the claim made by the plaintiffs. To do so would require a review of the evidence, and there is nothing in the case that calls for that. It is enough to say that the evidence offered by the plaintiffs was sufficient to carry the case to the jury. If credited by the jury it established a prima facie case entitled to prevail, except as overcome by defendants’ testimony. Now the defendants were under the same limitations with respect to their evidence as the plaintiffs. The way was open to them to refute the plaintiffs’ claim that there were upon the ground monuments answering to the calls of the survey, and to assail the evidence upon which the plaintiffs relied to show that other monuments at one time existed, though now obliterated, answering to the other calls; and this was the only proper line of defense. With priority of location established for tract No. 5266 as a separate member of its block, until it appeared that it was not possible to fix its true location by work of the surveyor on the ground, neither the line of the block of which it was a member, nor the lines of any members of that block or any other, could be appealed to. The defense proceeded on the assumption that it was for the jury to decide which party had established the earlier location; and defendants’ principal effort, instead of being directed to a refutation of the evidence for plaintiffs with respect to the work upon the ground, and its sufficiency for purposes of location, was expended fruitlessly on something which belonged to the court, and not the jury, to decide. It was to this end, the establishment of an earlier survey, that much if not all the evidence adduced by defendants was offered. Could the effort have succeeded, an end to the controversy would at once have been reached, since the northern line of defendants’ survey as laid by the surveyor is not in dispute. If the senior survey, it would halt imperatively No. 5266 as the junior survey. But this could not be. The accuracy of the return to the survey of No. 5266 was not impeached, and the return conclusively established priority in it. The result of it all was, that the case was submitted to the jury on a false issue, in a charge which, had the issue been what the court supposed, would have been unexceptionable. Because the issue was misconceived, the charge must be regarded as inadequate, and the twenty-first assignment of error be sustained. The true and only issue was — did the evidence show marks upon the ground made by the surveyor from which the location of No. 5266 could be determined. If it did, then if such location would include the disputed territory, plaintiffs would be entitled to the verdict. If it did not, then, since it was upon such evidence that plaintiffs’ case wholly rested, the plaintiffs would necessarily fail. A like result would follow of course, if location were established and the disputed territory fell without the plaintiffs’ lines.

Since the case must be again tried, the question' raised in the first and second assignments of error calls for an expression of view. F. F. Whittekin, a witness called by plaintiffs, having testified that in 1882 he ran certain lines upon the ground in dispute, it was proposed to prove by him that Mr. Irwin, a surveyor of large experience, who had surveyed on the land and lines to which the testimony of the witness referred, had furnished him certain field notes, and that with the use of these the witness went upon the ground and located the lines, or some of them, to which he has testified, and found the field notes to correspond with the location he had given. Another offer was to prove by the son of the said Richard Irwin, himself a surveyor, that he had custody of his father’s field notes after the latter’s decease; but that they have since been lost; that his father identified certain monuments he found on the ground as the original course of No. 5266; that the line dating to 1836 is the line with the peculiar marks of Richard Irwin, and that he located No. 5266 by his survey as it is now claimed to be located by the plaintiff. These offers were rejected because the declarations proposed to be proved were not made on the ground.

That declarations of a deceased owner with respect to boundary are competent evidence only when made on the ground is admitted; but it is contended that such limitation ought not to, and does not, apply to the declarations of deceased surveyors. If the rule be as asserted by the learned judge in rejecting the offer, its reasonableness may be safely assumed. We need only concern ourselves to inquire whether the law in Pennsylvania makes the distinction here set up. Boundary is one of the excepted issues wherein reputation and hearsay of deceased persons are received in evidence. The offer here, however, was not to show reputation, but specific statements of one since deceased as to what he actually found when making his survey. The distinction is not unimportant. The rules governing hearsay evidence with respect to reputation, are not the rules which govern where the offer is to prove independent facts by hearsay evidence. Declarations of deceased owners and surveyors are admissible only as they speak to such independent facts, not as establishing reputation, but as tending to establish certain relevant facts which because of the lapse of time are not susceptible of more direct proof. It is true historically that when this exception to the general rule was first allowed, no other limitations were imposed except that it must be first made to appear that the declarant had peculiar means of knowing the facts to which he spoke, and had no interest to misrepresent. But it is equally true that when the exceptions came to be applied in Pennsylvania, it was with quite another limitation, which naturally narrowed its field of operation, viz.: that the declarant must have been on the land at the time the declaration was made, and engaged at the time in pointing out the boundaries of the land. Mr. Wig-more in his valuable treatise on Evidence, sec. 1567, speaking of this additional limitation, says it is purely a Massachusetts variant, “which has since unfortunately been adopted thence by Maine, New Jersey, Pennsylvania, and perhaps in other jurisdictions also.” Our reference here to this text is more especially to show the reason on which the additional limitation or restriction which the author deprecates is based. In the section preceding the one from which we have quoted, the author states that in some jurisdictions individual statements taken solely on the credit of the individual declarant, were justified under what he calls the reputation exception; while in Massachusetts, the res gestas doctrine, whether in the general and loose sense of something done, or in some special relation to an adverse possessor’s declaration, was regarded as covering these statements. Here we have the variance and the reasons for it clearly indicated — in some jurisdictions the declarations are admitted on one principle, and in others on a wholly different one. In the jurisdiction in which the declarations are admitted under the reputation exception, all that is required is that the declarant be shown to have had peculiar means of knowledge of the fact, and without any interest to misrepresent: in the jurisdictions where the declarations are admitted on the principle of res gestas, they must be shown to have been made while in the act of pointing out the boundary or determining the line, which must necessarily have occurred on the ground. If this be the true history of the variance, and it admits of no question, then the additional limitation called the variant would not only seem to be a.necessary and logical deduction, but it so well accords with the established principles of evidence, that it would be far more correct to say of any opposing rule, that it was the variant.

The general rule is thus stated in Best on Evidence, sec. 501. “Allied to these are declarations in the regular course of business, office or employment, by deceased persons who had personal knowledge of the facts, and no interest in stating an untruth. But the rule as to the admission of such evidence, is confined strictly to the particular thing if it was the duty of the person to do: and unlike a statement against interest, does not extend to collateral matters, however closely connected with that being. And it is also a rule with regard to this class of declarations, that they must have been made contemporaneously with the acts of which they relate.” If the admission of declarations of persons deceased can be justified only on the ground of res gestae, something done must be shown; and it must appear that the declarations were made in connection with the doing. In the case of declarations of deceased owners, the thing done would be the pointing out the boundary; in those of deceased surveyors, the professional work in connection with the survey of the land. Both involve being on the ground; and thus we have explained the meaning of the limitation as ordinarily expressed. Now there can be no question but that in Pennsylvania while evidence of reputation is admitted where nothing better is obtainable, declarations of deceased owners and surveyors, are admissible, not to establish reputation, but solely on the ground of their being part of the res gestas. In Kennedy v. Lubold, 88 Pa. 246, Agnew, C. J., says, with reference to the facts of that case, “Herrington in 1837, and Fenton in 1838, were engaged in professional acts, the latter locating the warrant officially under his oath of office. The declarations as to the corners when found, blocked and counted, were a part of res gestae, and so far from being doubtful evidence were competent, and always admitted when the transaction is old and the surveyor dead.” This being the ground of their admissibility, no reason can be suggested why the limitation should not be the same in case of surveyors, as in the case of owners. So much for the principle. Now as to the adjudications. Counsel say that no case can be found in our reports where the declarations of a deceased surveyor have been excluded because not made on the ground. This may be true; but it is more certainly true that no case can be found in which the declarations of a deceased surveyor not made on the ground were admitted. The diligence of counsel has failed to discover any such case. They rely with some confidence on Borough v. Anderson, 40 Pa. 514; but this case gives no support whatever to their contention. The declarations there received were offered in connection with the general plan of lots in which the public generally were interested. The case distinguishes very clearly between declarations in aid of private rights, and those affecting the public at large, and the decision is made to rest on such distinction. “But,” says Reed, J., in the course of his opinion, “the declarations of a deceased surveyor in relation to lines run, or plans made from actual survey, are clearly evidence in an instance like the present, which concerns a matter of general if not public interest.” A careful examination of our cases where declarations of deceased parties have been made the ground of decision or comment, — and they are numerous, — will show conclusively that in this jurisdiction at least it has always been understood that declarations of deceased surveyors, and declarations of deceased owners are alike subject to the same limitation; that is to say, in either case to be admissible, they must be shown to be part of the res gestfe. When the declarations of the surveyor or owner are so far separated from the occurrence to which they relate as not to form a part of a continuous whole they are properly excluded. This ruling would admit the field notes of the deceased surveyor as declarations contemporaneous with the work done on the ground, provided they were authenticated in some other way than by the mere subsequent declaration of the surveyor himself; and in this case we think they were. It would exclude so much of the offer as proposed to prove the later verbal statements of Mr. Irwin to his son as to what he found on the ground when engaged in making his survey.

Judgment reversed, and venire de novo awarded.


author: Mr. Justice Fell,

text:
    Ohio Pail Company v. Cook, Appellant.

      Contract — Sale of timber — Conveyance of land — Equity—Specific performance — Personal act.

    Where a lumber company sells by an agreement in writing, all timber of certain species and of certain sizes, and by a second agreement all timber of a certain species without regard to size, and thereafter by a verbal agreement agrees to cut and haul the timber to the purchaser, and subsequently the lumber company sells the land to another person who has knowledge of the original agreement and the oral agreement, but not of the second written agreement, the vendee cannot be compelled to perform specifically the personal act of cutting and hauling the timber, and cannot be enjoined from converting to its own use the timber on land which the lumber company had acquired after the date of the original agreement, and this is the case although the lumber company had made no distinction between before and after acquired lands in delivering timber to the purchaser thereof.
    Argued Oct. 8, 1908.
    Appeal, No. 200, Oct. T., 1908, by defendant, from decree of C. P. Somerset Co., Equity Docket 1907, No. 2, on bill in equity in case of The Ohio Pail Company v. A. W. Cook & Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Decree modified.

      Bill in equity for an injunction. Before Kooser, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was to decree and to various findings and rulings.

      W. H. Ruppel, with him C. Z. Gordon and Chas. F. Uhl, Jr., for appellant.

      J. A. Berkey, with him Clarence L. Shaver and Wm. G. King, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Fell,

It is averred in the bill filed that in September, 1901, the Droney Lumber Company was the owner of a large tract of timber land, and that it entered into a written agreement with the plaintiff for the sale of the poplar, cucumber, bass and linn timber of certain sizes and agreed to furnish cars at convenient points on the line of its road and haul the timber to the plaintiff's mill without charge. The plaintiff was to erect a mill on the land of the lumber company, to follow its log cutters, cutting over only such land as they had cut over each year, and to load and unload the timber. In December, 1901, a second written agreement was entered into which provided for the sale and delivery at the plaintiff's mill of all the basswood without regard to size. In pursuance of these agreements the plaintiff entered into possession and built a mill at a cost of $10,000, and the contracts were carried out by both parties until February, 1906, when the lumber company sold all its interest in’the land and lumber to A. W. Cook & Company, the defendant, who bought with knowledge of the agreements and carried them out until July, 1906, since which time it has refused to deliver the basswood or permit the plaintiff to cut and take away any timber, and has cut and converted the same to its own use. The prayers of the bill are for a decree restraining the defendant from converting the timber to its own use, requiring the carrying out of the contracts, and for an account for timber taken.

It was found by the court that soon after operations had been commenced under the written agreements of September and December, 1901, a supplemental verbal agreement, revocable at any time by either party, was entered into whereby for an increased price the plaintiff was relieved from all work in the woods and all timber was to be cut and delivered by the lumber company; that the parties operated under this agreement for four years and up to the time of the sale by the lumber company, and that the agreement was carried out by the defendant for some months after its purchase; that at the time of the purchase by the defendant it had actual knowledge of the first written agreement and of the verbal agreement, and of the possession and operations of the plaintiff; but that it had no knowledge of the second written agreement and that in the conveyance of the land and the sale of the personal property there was no reservation of any right in favor of the plaintiff and that the defendant had not agreed with anyone to carry out the contracts which the plaintiff and the lumber company had entered into. The decree enjoins the> defendant from converting to its own use any of the timber mentioned in the written agreements; from interfering with the plaintiff in the exercise of rights conferred by these agreements; and requires the defendant “to perform the covenants, stipulations and conditions which the Droney Lumber Company had agreed and undertaken to perform by virtue of said contracts,” and to pay such damages as may be established on further hearing.

The decree is not limited in its operation to lands owned by the lumber company at the time the agreements of September and December, 1901, were made, but extends to all lands afterwards acquired by the company and conveyed by it to the defendant. The finding of fact on which the enlargement of the decree is based is that it appeared that some tracts were acquired by the lumber company after it had entered into the contracts mentioned, and it did not appear from the evidence what had been cut over at the time of the sale to the defendant, and that the lumber company had made no distinction between, before and after acquired lands in delivering timber to the plaintiff.

The burden of showing what lands were included in the contracts was on the plaintiff and, if as to any tracts its proofs were indefinite or unsatisfactory, it failed as to them. Moreover, the agreements relate only to lands then owned by the lumber company and could not be extended as against it, and much less as against its grantee without knowledge or notice, to lands afterwards acquired. The decree also goes too far in enforcing the rights of the plaintiff secured against the lumber company by the second agreement and in requiring the defendant to furnish cars and haul lumber, as provided by the first. Of the second written agreement the defendant had no knowledge. The operations on the land by the plaintiff were all consistent with its rights under the first agreement and they were not notice of the existence of other rights and gave rise to no duty of inquiry. The agreement to haul lumber was a purely personal one by the lumber company and cannot be specifically enforced against the defendant. The limit of the plaintiff's remedy in the proceeding is to have secured to it the right to cut and remove the timber mentioned in the first agreement, in accordance with the terms thereof, and to an account for timber bought under that agreement that has been appropriated by the defendant. With this modification of the decree it is affirmed.


author: Mr. Justice Mestrezat,

text:
    Pettit, Appellant, v. Jamestown & Franklin Railroad Company.

      Lateral support — Deed—Grant in fee simple — Railroad—Damages.
    The right of the owner to lateral support of his land is a natural right. It is not simply an easement, but an incident to the land, a right of property necessarily and naturally attached to and passing with the soil.
    Where an owner of a tract of land conveys by deed a fee simple title in a strip of land through his tract to an individual described as trustee, and the strip of land is particularly described by reference to the location survey of a railroad, and the deed reserves a railroad crossing over the strip, and the right to lay pipe lines under it, and subsequently the grantee conveys the strip to a railroad company, such company, in the absence of any provision in the deed to the trustee obligating the latter to build a railroad, and in the absence of any release of damages, owes to the land on each side of the strip the duty of lateral support; and if the company in constructing its railroad causes such land to fall, it will be liable in damages to the owner.
    Argued Oct. 9, 1908.
    Appeal, No. 219, Oct. T., 1908, by plaintiff, from judgment of C. P. Venango Co., Aug. T., 1907, No. 72, on verdict for defendant in case of Joseph Pettit v. Jamestown & Franklin Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for injuries to land caused by the removal of lateral support. Before Criswell, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Robert F. Glenn and Peter M. Speer, for appellant.
    The deed in question is not a general grant or release of damages for right of way, but is a deed in fee simple. It is not such an easement as would be acquired by a mere grant of a right of way or by condemnation proceedings, in both of which cases there would be a reversion to the owner when the land ceased to be used for railroad purposes. Here we have a deed in fee simple for a definite piece of land with no reversion to the owner in any event and therefore the grantee is beyond question an abutting owner and bound by the law of lateral support: McCullough v. Ry. Co., 52 Minn. 12 (53 N. W. Repr. 802); Mosier v. Oregon Nav. Co., 39 Ore. 256 (64 Pac. Repr. 453); Stodghill v. Railroad Co., 43 Iowa, 26; Booth v. Railroad Co., 140 N. Y. 267 (35 N. E. Repr. 592); Roushlange v. Railway Co., 115 Ind. 106 (17 N. E. Repr. 198); Richardson v. Railroad Co., 25 Vt. 465; Williams v. Natural Bridge Plank Road Co., 21 Mo. 580; Stearns v. Richmond, 88 Va. 992 (14 S. E. Repr. 847).

      A. R. Osmer and J. H. Osmer, with them N. F. Osmer, for appellee.
    There was no duty of lateral support on the defendant: Arnold v. Ry. Co., 32 Pa. Superior Ct. 452; White v. Ry. Co., 15 Pa. Dist. Rep. 976; North & West Branch Ry. Co. v. Swank, 105 Pa. 555; Rudolph v. Penna. Schuylkill Valley R. R. Co., 186 Pa. 541; Ludlow v. R. R. Co., 4 Hun (N. Y.), 239; Updegrove v. R. R. Co., 132 Pa. 540.
    January 4, 1909:
   Opinion by

Mr. Justice Mestrezat,

This is an action of trespass brought by the plaintiff to recover damages from the defendant for injuries which he alleges he sustained by reason of the removal of the lateral support from his land. The court directed a verdict for the defendant and judgment having been entered thereon, the plaintiff has taken this appeal.

In the year 1905 the estate of S. P. McCahnónt, deceased, was the owner of several tracts of land in Venango county, one of which lay along the Allegheny river and contained about 135 acres. By deed dated January 23, 1905, McCalmont’s executors conveyed in fee simple to F. J. Jerome, trustee, a part of this tract, being a strip adjoining and extending along the Allegheny river about 190 rods and containing 15.6 acres. The land conveyed was particularly described by reference to the location survey of the defendant’s railroad. In the description a reference is made to a map attached to the deed for a further description of the premises conveyed. Reservations were made of the oil and gas, a railroad crossing over the premises conveyed, and the right to lay pipes and oil lines under the railroad. By deed, dated November 28, 1905, Jerome conveyed the same land to The Jamestown & Franklin Railroad Company, the defendant in this action, which prior thereto had located a railroad over it.

After the sale to Jerome, McCalmont’s executors sold the residue of the tract of which the Jerome land was a part to Joseph Pettit, the plaintiff, and conveyed it to him in fee by deed dated February 10, 1906. Subsequent to this purchase by Pettit, the defendant company constructed the railroad upon the strip of land which it had acquired from Jerome. The plaintiff alleges, as his cause of action, that in the construction of the road, the defendant “removed or caused to be removed the lateral support of plaintiff’s land lying and being on the side of the hill adjacent to defendant’s proposed line of railroad, to such an extent, and in such a manner that the surface of the earth on said hillside cracked or opened, and slid down the hill, carrying with it derricks, machinery and other appliances placed thereon by plaintiff, and used by him in the production of oil therefrom, and destroying the oil wells thereon and the fixtures and fittings therein.” It seems that the strip of land purchased by Jerome and now held by the defendant company lay along a steep hillside extending from the Allegheny river above and beyond the defendant’s premises, and that outside of the defendant’s land the plaintiff was operating extensively for oil and had put down several wells. In the construction of the railroad it was necessary to make several deep cuts and excavations in the premises, and the plaintiff claims that in doing so the defendant caused the hillside, a part of his land, to slip and slide down the hill towards the river and carry with it his oil wells and other property.

There is no allegation of fraud, accident or mistake in the execution or delivery of the deed by McCalmont’s executors to Jerome, nor is it claimed that it does not express the agreement of the parties relative to the land conveyed. No attempt has been made by either party to reform it so as ,to make it express a different intention or a different purpose. It must, therefore, be taken to be the contract of the parties, and as such it must speak for itself and determine their rights. Hence the single question in the case is whether the title acquired by the Jerome deed justifies the defendant company in digging and excavating on its own premises in constructing its road so near to the plaintiff’s land as to remove the lateral support, and thereby cause the plaintiff’s land to subside and fall into the excavation. The trial judge held that it was apparent from the evidence in the case that the strip of land was purchased by Jerome as trustee for the defendant company for the purpose of constructing a railroad thereon, and that the deed conveyed the premises to Jerome and released the defendant company from all damages, including the withdrawal of lateral support occasioned by the construction of the railroad. On this ground the learned judge directed a verdict for the defendant company.

The court below in its opinion refusing a new trial says: “If the damages had been assessed under the statute clearly the probability of the injury now complained of would have been considered and the assessment would have covered it.” The theory of the learned judge seemed to be that the premises were acquired by Jerome for a right of way of a railroad, that the grantors knew this fact and that the deed took the place of condemnation proceedings. In other words, the learned judge regarded the deed by which the premises were conveyed to Jerome as vesting in the grantee the same title and relieving him from damages to the same extent as condemnation proceedings instituted under the statute by a railroad company for the assessment of damages. In this we think the court was in error.

The defendant company does not claim to occupy the strip of land by virtue of. the authority conferred by eminent domain. It unquestionably had the right to enter upon and condemn the strip of land for the purposes of its railroad. In doing so it had the right to appropriate a strip of land sixty-six feet in width and a greater width at cuts and embankments for the use of its railroad. The statute confers this power upon railroad companies. It recognizes the necessity in various parts of the state of deep cuttings and embankments in order to make a proper location. While, therefore, the statute confines the company to a width of sixty-six feet at grade for its road, it confers authority to take a greater width where cuts or fills are necessary to make the statutory width at grade. While this authority is conferred on railroad companies, the statute manifestly regards the appropriation of the extra width as a “taking” under the constitution and requires due compensation to be made for it in the assessment of damages. The general railroad act of 1849 is broad in its provisions and confers on the railroad company the authority to take the necessary land, not only for its roadbed but also for its depots, warehouses, offices, etc., and “for any purpose necessary or useful in the construction, maintenance or repairs in said railroad.” It also confers authority upon the company “to take, excavate and embank, make, grade and lay down and construct the road.” But the owner of the land is fully protected by the statute which requires the railroad company to make “compensation proper for the damage done or likely to be done to, or sustained by any such owner,” and this includes compensation not only for the strip of land sixty-six feet in width at grade, but for the additional width taken at cuts and fills. Any present or future injury which the owner may sustain by the construction of the road must be compensated for by the company. It is not only the damage which presently results from the construction of the road, but also that which is “likely to be done” thereby that is the measure of the owner’s compensation for the injury done him. It will therefore be observed that a railroad company, under eminent domain proceedings, may appropriate for its use a strip of land of the statutory width, and also when necessary, may take a greater width at cuts and fills, but compensation must include damages for the additional ground taken.

Is the deed by which Jerome acquired title to the strip of land from McCalmont’s executors the equivalent of condemnation proceedings in conferring upon Jerome or his grantee the right to enter upon the strip of land and construct a railroad thereon, and does the compensation named therein cover the damages which would be assessed in condemnation proceedings? A reference to the deed will answer this question in the negative. It is an ordinary deed conveying a fee simple title to the strip of land described in it. The consideration therein named is the price of the land conveyed and not compensation for damages resulting from the construction of a railroad thereon. The purchaser takes a fee simple title, the same as any individual or other purchaser under a similar deed. The deed does not convey "a right of way for railroad purposes,” nor does it convey the strip of land for railroad purposes. There is nothing in it disclosing an intention to convey the land for any particular purpose, or requiring the grantee to use it for any specific purpose. He acquires a fee simple title, and, so far as the grantors are concerned, he may convey it to whomsoever he pleases, or he may make any use of it which he may desire, so long as he does not offend the law. In other words, Jerome acquired the title to this strip of land by a conveyance in fee simple and the McCalmont title in the premises passed to him absolutely. As he purchased as a trustee, he was responsible only to his cestui que trust who might be an individual or a corporation. The owner has the right to put any lawful structure on it or use it for any lawful purpose he sees fit. He may operate for oil or gas and use it exclusively for that purpose. He may devote it to manufacturing purposes. If he abandon it, the title will not revest in McCalmont’s executors, the grantors.

It is true that the property is described by reference to the location survey line of a railroad. It is likewise true that there is a reservation in the deed that gives the grantor a crossing over any railroad that may be constructed on the premises and also authorizes him to lay pipe lines under the railroad. But the description and reservations do not deprive the grant of its fee simple character or compel the grantee to use it for railroad purposes. The strong probability is that the land was acquired for the purpose of constructing a railroad thereon, but there is not a single line in the deed that compels the grantee to construct the road or deprives him of any right to which a fee simple owner of land is entitled. If, the day after the delivery of the deed by Jerome to the defendant company, the latter had concluded to construct its road on the opposite side of the Allegheny river and not over this land it could have sold and conveyed the land in fee simple and the grantee would have taken the title, subject to the reservations in the Jerome deed. It is apparent, therefore, that there is nothing in the deed to Jerome which shows that the premises conveyed were to be used for railroad purposes or that compels the grantee to apply them to such purposes. Neither is there anything in the deed that shows that the grantors intended or agreed that the premises should be used for railroad purposes, or that they received any compensation for damages which would result to the residue of the farm from the construction of a railroad on the strip of land acquired by the grant. Their conveyance being a fee simple title, .the property passed from them, and the purpose for which it was acquired or the use to which it might thereafter be put was solely for the determination of the grantee.

The defendant company, therefore, holds the premises in fee, subject only to the reservations named in the McCalmont deed. So far as the grantors are concerned, it occupies the same position as an individual who had acquired the fee simple title. It has the same rights and is subject to the same duties and obligations in the use of the premises as an individual were he occupying its place.

In the Jerome deed, there is no release of damages arising from the construction of a railroad over the premises conveyed, nor is there a release authorizing the defendant with impunity to do any other act on the premises which would unlawfully injure the residue of the tract now owned by the plaintiff. If, therefore, an individual would be liable for damages for the injury complained of in this action, the defendant company is equally liable and must respond in damages for the injuries done.

It is settled law that the owner of land is entitled to have it supported and protected in its natural condition by the soil of the adjoining proprietors. In the case of land, which is fixed in its place, each owner has the absolute right to have his land remain in its natural condition) unaffected by any act of his neighbor, and if the neighbor digs upon and improves his own land so as to injure this right he may maintain an action against him without proof of negligence: Gilmore v. Driscoll (Mass.), 23 Am. Rep. 312. Neither of the owners of adjacent land has the right to excavate his soil so as to cause that of his neighbor to be loosened and fall into such excavation: Wash-burn on Easements, 514. The right of the owner to lateral support of his land is a natural right. It is not simply an easement, but an incident to the land, a right of property necessarily and naturally attached to and passing with the soil: Wier’s Appeal, 81* Pa. 203; McGettigan v. Potts, 149 Pa. 155; McGuire v. Graft (N. J.), 67 Am. Dec. 49; Farrand v. Marshall, 19 Barb. 380. There can be no question that if an individual owned the strip of land sold to the defendant and on which its road was constructed, he would be liable for the withdrawal of the lateral support to the plaintiff’s land. This is the common law and it obtains in this as well as in other jurisdictions.

We have examined our own cases on the subject and none of them supports the contention of the defendant. In the cases cited by defendant’s counsel, with possibly one exception to which we will refer hereafter, there was a release of damages or something equivalent thereto. Of course, the owner of land cannot claim damages for injury done by the construction of a railroad on a strip of land which he had sold and, by the instrument conveying it, had also released the purchaser from liability for damages to the residue of the tract by reason of the construction of the railroad. When the deed conveying the premises sufficiently discloses an intention not only to pass the title to the land but also to release the grantee from damages by reason of the construction of a railroad on the premises granted, the two purposes disclosed by the deed must be carried out and the deed will not only convey the title but will also release the damages.

The recent case of Hendler v. Lehigh Valley Railroad Company, 209 Pa. 256, was trespass against the company for taking sand outside of its right of way which it had acquired by an agreement with the owner of the land. In sustaining a judgment for the plaintiff this court, by the present chief justice, said (p. 262): “When therefore a railroad company obtains a right of way, either by condemnation or as in this case by an equivalent agreement, it has the right to use without further compensation all the suitable materials, except timber, within the lines of its survey, for construction of its road through the property of the landowner. ... If it is necessary to go outside the lines of their right of way for sufficient width to support an embankment they may do so but must pay for the additional land occupied, and so if it is necessary to go outside the lines to give the walls of a cut the slope required to prevent sliding or washing down they may do so on paying for the additional materials taken outside.”

North and West Branch Railway Company v. Swank, 105 Pa. 555, is relied on by the defendant to sustain its contention that the company is relieved from damages for the injuries complained of in this case. That case, however, does not sustain the defendant’s position. The contract was not a deed conveying the premises in fee simple. It was an agreement that the railroad company “shall have the right of way through my land” for “the amount of damages” fixed by an agreement between the railroad company and the owner of another tract of land through which the road was constructed. That was simply an agreement that the company should have “ a right of way” for the damages agreed upon by the parties. The railroad company therefore got by the agreement precisely what it would have secured under condemnation proceedings, simply a right of way, and it paid therefor the amount of damages fixed by the parties. Under the agreement, if the railroad company had subsequently vacated the premises, the land would have reverted to the owner. The damages agreed upon of course included compensation for all the injuries done the owner by reason of the taking of the land for railroad purposes and the construction of the road thereon. The company could not have devoted the land to any other purpose without forfeiting it to the former owner. The agreement simply took the place of condemnation proceedings, and when it was interposed as a defense to the proceedings instituted by the owner to have damages assessed for the construction of the road, it necessarily deprived him of the right to recover. The agreement did not, as does the deed in the case in hand, convey a fee simple title to the land, but is simply a release of damages, and was so regarded by this court in Rudolph v. Pennsylvania Schuylkill Valley Railroad Company, 186 Pa. 541, in which we say (p. 554): “In several cases commencing with Railway Company v. Swank, 105 Pa. 555, we have held that a mere release by the owner of a right of way was a bar to a subsequent action for damages for the construction and lawful operation of the railroad."

We are of opinion that the defendant company occupies the same position here as an individual owning property adjacent to the plaintiff’s land, that the deed to Jerome from the plaintiff’s predecessor in title does not release the damages to the residue of the land arising from the construction of a railroad on the land conveyed to the company, and that the company is liable for any injury which the adjacent property has sustained by reason of the removal of lateral support.

The judgment is reversed and a venire facias de novo awarded.