text:
    Line v. Philadelphia, Harrisburg & Pittsburg Railroad Company, Appellant.

      Railroads — Condemnation proceedings — Viewers—Practice, C. P.— Damages.

    An order of the court of'common pleas in condemnation proceedings referring back to the viewers their report with directions to state the quantity and quality of the land condemned, will not be reversed, where it appears that the effect of the order was merely to add matter as to which there was no dispute.

      A verdict and judgment in a railroad condemnation proceeding will not be reversed on the ground that the jury allowed for probable injuries by flood to land not appropriated, where it appears that at the time of the trial the construction work had been completed, that there was no complaint of negligent construction, and the court in its charge carefully distinguished between injuries that might result from faulty construction, and those that would naturally result from the work, and limited the recovery to the latter.
    There may be a recovery of damages in condemnation proceedings for the flooding of lands outside the limits of the lands condemned by a railroad company where the flooding is the natural result of the changing of the course of a stream made necessary by the construction of the railroad.
    Argued May 23, 1907.
    Appeal, No. 155, Jan. T., 1906, by defendant, from judgment of C. P. Cumberland Co., Sept. T., 1905, No. 57, on verdict for plaintiff in case of E. Janette Line v. The Philadelphia, Harrisburg & Pittsburg Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Potter, and Elkin, JJ.
    Affirmed.
    Appeal from award of jury of view. Before Sadler, P. J.
    From the record it appeared that on exceptions to report of viewers the court made the following order:
    The report of the viewers does not distinctly set forth the quantity and quality of the land taken and occupied, and to this extent the first exception is sustained. The value of the land taken, we understand to be embraced in the award of the damages.
    And now, September 7, 1905, the report of the viewers is again referred to them, with directions to go upon the premises on Thursday, September 28, at ten o’clock, and to view and determine the quantity and quality of the land taken, and make report thereof to the court.
    The record also showed the following agreement of counsel:
    “ "Whereas the report of the viewers filed in the above case has been referred back to them to set forth the quantity and quality of the land taken and occupied.
    “ It is hereby agreed by the Attorneys for the Railroad Company and the Attorneys for the land owner, that the report of the viewers filed in this case be amended by the addition of the words, £ the land taken consists of two tracts containing 1.265 acres and the second tract containing .726 acres. The land of the first tract is farm land, having thereon erected the house; the second tract consists of farm land.’
    “ This amendment is to be made by the Prothonotary, the second meeting of the viewers being waived by consent; it being agreed that the words added shall have the same force and effect as if the said viewers had regularly met and made the amendment and no further effect, and shall not be construed and considered as a waiver of the right of the Railroad Company to except to and have reviewed the order of the Court made in passing upon the exceptions filed by the Railroad Company to the original report of the viewers in the above proceeding.”
    At the trial the defendant moved the court to withdraw from the consideration of the jury, the injury to the property, testified to by a witness arising from the apprehended danger by reason of the faulty or negligent construction by the defendant of the mill race, for the reason that for any injury resulting from said negligent and faulty construction the plaintiff Ras a special remedy at law.
    The Court: Taking the testimony of the witness as a whole, we understand the injuries he estimates arise from the additional water turned into the race, the change in the course and direction of the race, and the manner in which the bridge is constructed over it, and which he regards renders it so manifest that there will be an overflow when there is any considerable increase in the flow of water as to affect the market value of the farm of the plaintiff to the amount stated, to this extent, and in so far as his testimony goes to establish this, we refuse to withdraw it, but you must not consider it in so far as it shows apprehended danger by reason of alleged faulty construction by the defendant of the mill race. The prayer to withdraw the testimony is refused, except as to the extent stated. The defendant excepts and a bill is sealed. [2]

      Errors assigned were (1) order of the court as above, quoting it; and (2) ruling on evidence, quoting the bill of exceptions.

      Conrad Hambleton, with him John W. Wetzel, for appellant.
    The order was erroneous: Zack v. Penna. R. R. Co., 25 Pa. 394; Gwinner v. R. R. Co., 55 Pa. 126; Bowers v. Braddock Borough, 172 Pa. 596.
    The jury wrongfully considered damages resulting from future flooding: Wallace v. Gas Co., 147 Pa. 205; P., F. W. & C. Railway Co. v. Gilleland, 56 Pa. 445; B. & O. R. R. Co. v. School District, 96 Pa. 65; Brown v. Ry. Co., 183 Pa. 38; Berninger v. Ry. Co., 203 Pa. 516; Denniston v. Phila. Co., 161 Pa. 41; R. R. Co. v. McKinley, 33 Ind. 274; Southside R. R. Co. v. Daniel, 20 Grattan (Va.), 344; Dearborn v. R. R. Co., 24 N. H. 179.

      S. JB. Sacllcr, with him F. E. Beltzhoover, for appellee.—
    Where viewers' fail to state, the quantity and value of land taken, the report will not be quashed, but will be recommitted, with directions to the viewers to file a report setting forth such facts: Boyd v. R. R. Co., 54 Pitts. L. J. 28; Penna. R. R. Co.’s App., 2 Walker, 506; Fitzpatrick v. Penna. R. R. Co., 10 Phila. 107; Hilltown Road, 18 Pa. 233 ; Yardley Borough, 22 Pa. C. C. Rep. 179; Pott’s App., 15 Pa. 414; Towamencin Road, 9 Pa. Dist. Rep. 650; Herr’s Mill Road, 14 S. & R. 204; Clinton Twp. Road, 3 Pa. C. C. Rep. 170; Springbrook Road, 64 Pa. 451; Del., Lack. & Western R. R. Co. v. Bursom, 61 Pa. 369; Hays v. Risher, 32 Pa. 169; Wilson v. City of Scranton, 141 Pa. 621; Ogden v. Philadelphia, 143 Pa. 430; Larkin v. Scranton, 162 Pa. 289; Bechtel v. Bechlersville Borough, 3 Pa. Dist. Rep. 713.
    The point of time at which damages must be estimated for the taking and occupancy of land, under the right of eminent domain, is immediately after the said land has been appropriated and used: Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 411; Wadhams v. R. R. Co., 42 Pa. 303; Dearborn v. R. R. Co., 24 N. H. 179.
    In assessing damages against a railroad company, all such natural and probable consequences of the works in producing injury, as would fairly arise to the mind of an intelligent viewer, must be allowed for: Ry. Co. v. Gilleland, 56 Pa. 445; Denniston v. Philadelphia Co., 161 Pa. 41; P. & N. Y. Canal & R. R. Co. v. Madell, 1 W. N. C. 287; Hewitt v. Pittsburg, etc., R. R. Co., 19 Pa. Superior Ct. 304; McMinn v. Pitts-burg, etc., R. R. Co., 147 Pa. 5; Fehr v. Schuylkill Nav. Co., 67 Pa. 161; Updegrove v. R. R. Co., 132 Pa. 540; Hoffeditz v. South Penn. Ry. & M. Co., 129 Pa. 264; Brown v. R. R. Co., 183 Pa. 38; Watson v. R. R. Co., 37 Pa. 469; Dearborn v. R. R. Co., 24 N. H. 179; B. &. P. R. R. Co. v. Magruder, 34 Md. 79; Aldrich v. R. R. Co., 21 N. H. 359; Dreher v. Iowa S. W. R. R. Co., 59 Iowa, 599; D., L. & W. R. R. Co. v. Salmon, 39 N. J. L. 299; VanSchoick v. Canal Co., 20 N. J. L. 249; Steele v. Navigation Co., 2 Johnson (N. Y.), 283; Hoffer v. Canal Company, 87 Pa. 221.
    June 3, 1907:
   Opinion by

Mr. Justice Fell,

Two questions are raised by the assignments of error. The first relates to an order of the court referring back to the viewers their report with directions to state the quantity and quality of the land condemned; the second to the allowance of a recovery for probable injuries by flood to land not appropriated. In the order directing the view the land was described by metes and bounds and the quantity stated. The report was excepted to by the defendant for the reason that the quantity and quality of the land were not set forth. This exception was sustained and the report was sent back to the viewers with direction to set out these facts. No exception was taken to this order and by agreement of the parties filed of record a statement of the quantity and a description of the land was added without recalling the jury of view. The reference back to the viewers was not that they should reconsider their finding or any disputed matter, but that they should complete their report by the addition of matter as to which there was no dispute. In Springbrook Road, 61 Pa. 151, where viewers were allowed to amend their report, it was said by Sharswood, J.: “ It would be intolerable to set aside such report for merely formal errors, where the amendment is made within the time allowed by law for filing the orignal report.”

In widening its road the defendant changed the course of a millrace on the plaintiff’s land to secure a better crossing and increased the flow of water therein in order to have a larger supply at its station. There was testimony tending to show that the change in the course of the stream and the increase of the flow of water would subject the plaintiff’s land to overflow at times of flood. The work of widening the roadway had been completed. There was no complaint of negligent construction. The plaintiff’s claim was for depreciation in the value of his land as a consequence of the plan of construction which the defendant had adopted as best suited to its purpose. The distinction between injuries that might result from faulty construction and those that would naturally result from the change in the course of the stream were carefully observed by the learned trial judge in ruling on offers of proof and in the charge, and the recovery was limited to the latter.

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Gallagher's Estate.

      Appeal — Orphans’ court — Findings of fact.

    A finding of fact by the orphans’ court based on sufficient evidence to the effect that the sale of certain bonds by an executor was for a valuable consideration and bona fide, and that the claimant of the bonds had been guilty of laches, will not be reversed by the appellate court.
    Argued May 27, 1907.
    Appeal, No. 319, Jan. T., 1906, by Andrew Banks, Administrator c. t. a. of Jane Gallagher, deceased, from decree of'O. C. Juniata Co. refusing to appoint an auditor in Estate of Robert C. Gallagher, deceased.
    Before Mitchell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition to appoint auditor.
    From the record it appeared that Robert C. Gallagher died testate April 1, 1872, leaving a widow who elected to take against the will. The decedent was possessed of considerable estate, among which were twenty-three United States bonds of $1,000 each. These bonds could not be found after his death. Proceedings were brought by the executor against the widow to recover them and these proceedings were unsuccessful. In 1875 the executor sold the interest in the bonds to one of the residuary legatees for a valuable consideration, and in 1876 charged himself with the amount which he received for them in an account which he filed in the orphans’ court to which no exceptions were filed. In 1878 the widow presented a petition to the orphans’ court alleging that the sale of bonds was in fraud of her right and praying for a rule on the executor to transfer to her the interest and title of the decedent to one-half of the bonds. An auditor was appointed on this petition, but he filed no report. In 1906 the administrator of the widow presented a petition for a rule on the administrator of Robert Gallagher to show cause why an auditor should not be appointed in place of tbe auditor who had been appointed in 1878, and who was deceased. The court refused to appoint the auditor and the administrator of the widow appealed.

      Error assigned was order refusing to appoint auditor.

      J. Howard Neely, with him I. E. Atkinson, for appellant.

      J. Mac Barnett, of Barnett c& Son, with him J. A. Gallagher, for appellee.
    June 3, 1907:
   Per Curiam,

The learned judge below summed up the whole controversy in this case in the concluding sentence of his opinion. “We are of the opinion that the confirmation of the account was conclusive, the title of the bonds passed to J. H. Gallagher, and the sale being for a valuable consideration was bona fide ; that Jane Gallagher was guilty of laches, and her administrator has now no right, title or interest in the bonds.” A review of the evidence satisfies us that this was the correct conclusion.

Decree affirmed.


text:
    Garver v. Clouser, Appellant.

      Will — Devise—Rule in Shelley’s case.

    Testatrix devised as follows: “I bequeath to S. all my estate, real, personal or mixed, which I may possess at the time of my death to hold the same during his natural life, and after that to his legal heirs to do with it as they see proper.” Held, that S. took an estate in fee under the rule in Shelley’s case.
    Submitted May 27, 1907.
    Appeal, No. 170, Jan. T., 1907, by defendant, from judgment of O. P. Juniata Co., Feb. T., 1907, No. 16, for plaintiff on case stated in suit of Solomon Garver v. Watson D. Clouser.
    Before Mitchell, C. J., Brown, Potter, Elkin and Stewart, JJ. '
    Affirmed.
    Case stated to determine the marketable title to real estate.
    Plaintiff claimed title under the second clause of the will of Elizabeth Kauffman, deceased, which was as follows:
    “ Second I bequeath to Solomon Garver, of Township and County aforesaid, all my estate, real, personal or mixed, which I may possess at the time of my death, to hold the same during his natural life, and after that to his legal heirs to do with it as they see proper. ”
    The court in an opinion by Shull, P. J., held that the plaintiff had an estate in fee under the rule in Shelley’s case.

      Error assigned was in entering judgment for plaintiff on the case stated.

      Louis E. Atkinson, for appellant.

      F. M. M. Pennell, for appellee.
    June 3, 1907:
   Per Curiam,

This devise is too clearly within the rule in Shelley’s case to require discussion.

Judgment affirmed.


author: Mr. Chief Justice Mitchell,

text:
    National Bank of Kennett Square v. Shaw, Appellant.

      Promissory notes — Evidence—Parol agreement — Written contemporary agreement.

    Where at the time a promissory note was given to a bank, a contemporary oral agreement subsequently put in writing was entered into between the bank and the maker of the note, by which the latter was in express terms relieved from all individual liability on the note, and the agreement provided the sole source from which payment was to be made, and it also appears that the giving of the note was a mere device to avoid trouble with the bank examiner, and the comptroller of the treasury, the maker cannot be held liable for the payment of the note.

      Contract — Written agreement — Parol agreement — Evidence.
    Where the officials of a bank prepare a -written agreement which is submitted to the directors and approved by them without any question being raised as to omissions in the writing, and the contract is then submitted to and executed by the other party, the evidence of the directors taken in litigation several years after to the effect that there were material omissions in the writing, which evidence is contradicted by the other party, is not such clear, precise and indubitable proof as will justify a reformation of the instrument, and it is error to submit it to a jury.
    Argued Feb. 11, 1907.
    Appeal, No. 203, Jan. T., 1906, by defendant from judgment of C. P. Chester Co., Aug. T., 1904, No. 28, on verdict for plaintiff in case of National Bank of Kennett Square v. P. B. Shaw.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Assumpsit on a promissory note. Before Hemphill, P. J.
    At the trial it appeared that on April 4, 1899, the defendant gave his promissory note to the plaintiff for $5,000, payable in four months. At the time the note was given the following agreement was entered into between the - bank and defendant.
    “ It is hereby understood and agreed that P. B. Shaw shall not be held responsible for the payment of his note of five thousand dollars ($5,000) payable to the order of himself and dated 4th day of Feb., a. d. 1899, at four months and discounted by said bank, and tbe proceeds whereof was for the benefit of the Pennsylvania Marble and Granite Co., a corporation incorporated under the laws of the state of New Jersey ; the said amount of Five Thousand Dollars to be repaid to said Bank out of the first earnings or profits of the business of the above named company to the extent of one-third of said earnings, or profits arising from monthly sales of marble, granite or other stone from the quarries of said company, and said bank shall participate in said profits until said note shall be paid in full with discounts on same. In the event of said company failing to earn sufficient profits to pay said note and discounts, the said bank will not hold said Shaw personally liable for the repayment of said note or any unpaid portion thereof. This action being taken on an agreement of the members or stockholders of said Pennsylvania Marble and Granite Co., upon its reorganization to repay said bank out of the earnings or from sale of stock of said company, or in lieu of same (if not paid in cash) issue and deliver to said bank such an amount of stock as will in the aggregate amount to the entire balance unpaid of the indebtedness of the Acme Lime Co., Avondale Marble Co., indorsed notes of Hunt, Hepburn and Yolmer, also business paper of Gimm Deitrich, or any other like obligations on which the former operations or companies have received the money on, by being discounted at and by said bank, and said obligations still remaining unpaid, or any portion thereof, after all collateral held by said bank (that can legally be disposed of) have been sold, and the proceeds thereof applied to the payment and discharge of said indebtedness of said several companies or operations above mentioned, dated at Kennett Square, Pa., April 4, 1899.”
    Yerdict and judgment for plaintiff for $7,012.50. Defendant appealed.

      Errors assigned were (1-10) above instructions quoting them.

      John G. Johnson and Alfred P. Reid, for appellant.
    The proof was not sufficient to justify the alteration of the written contract: Ogden v. Traction Co., 202 Pa. 480; Rowand v. Finney, 96 Pa. 192; Streator v. Paxton, 201 Pa. 135; Union Storage Co. v. Speck, 194 Pa. 126.

      A. M. Holding, with him M. Hampton Todd, and O. J. Hepburn, for appellee.
    Evidence to show the terms of the oral agreement, or conditional release, made contemporaneously with the giving of appellant’s note, was properly admitted— notwithstanding the paper writing of April 14, 1899 : Gower v. Sterner, 2 Wharton, 75; Huss v. Morris, 63 Pa. 367; Gump’s App., 65 Pa. 476; Chew v. Gillespie, 56 Pa. 308; Hyndman v. Hogsett, 111 Pa. 643; Jenkins v. Davis, 141 Pa. 266; Middleton v. Thompson, 163 Pa. 112; Lee v. Taylor, 154 Pa. 95; Schotte v. Meredith, 192 Pa. 159; Knight’s Estate, 20 Pa. Superior Ct. 413; McCormick Harvesting Machine Co. v. Nicholson, 17 Pa. Superior Ct. 188; American Harrow Co. v. Swoope, 16 Pa. Superior Ct. 451; Wheatley v. Neidich, 24 Pa. Superior Ct. 198; Schweitzer v. Stoeckel, 4 Phila. 281.
    Even if the paper writing of April 14, 1899, were held to be the contract, as counsel for appellant now contends, no sufficient defense was made to the appellee’s claim upon its note.
    That Mr. Shaw was to be held upon his note, unless there were carried out by some one the stipulations in the paper writing of April 14, 1899, there can be no doubt, and that it was necessary upon the part of the defendant to show a performance of the undertakings in that paper, before he could interpose as a defense to a suit upon this note that paper writing, is abundantly shown by the authorities: Schilling v. Durst, 42 Pa. 126; Weichardt v. Hook, 83 Pa. 434; McCrelish v. Churchman, 4 Rawle, 26; Levering v. Phillips, 7 Pa. 387; Dunham v. Pettee, 8 N. Y. 508; Anspach v. Bast, 52 Pa. 356.
    June 25, 1907:
   Opinion by

Mr. Chief Justice Mitchell,

This is not the ordinary case of the obligor in an instrument for the payment of money seeking to escape the obligation through parol testimony. On the contrary, the case starts with a clear agreement of the parties in writing that notwithstanding the face of the note, the maker was not to be liable. It is admitted that when the original note (of which the one in suit was a renewal) was executed, an oral agreement was made by the parties with regard to its payment and the liability of the maker. This agreement was put into writing nearly two months later by the plaintiff bank itself and is the substantial basis for the determination of the case. It provides in explicit terms, first, “thatP. B. Shaw shall not be held responsible for the payment ” of the note; secondly, that the proceeds of the discount of the note by the bank are for the benefit of the Pennsylvania Marble and Granite Company, thirdly, “ the said amount of five thousand dollars to be repaid to said bank out of the first earnings or profits of the business of the above named company to the extent of one-third of said earnings, or profits arising from monthly sales of marble, granite or other stone from the quarries of said company. ” Having thus agreed that the maker of the note shall not be primarily liable, and provided affirmatively how payment shall be made, the agreement then guards against any inference of a secondary liability of the maker by the specific agreement that “ in the event of said company failing to earn sufficient profits to pay said note and discounts, the said bank will not hold said Shaw personally liable for the repayment of said note or any unpaid portion thereof. This action being taken on an agreement of the members or stockholders of said Pennsylvania Marble and Granite Company, upon its reorganization to repay said bank out of the earnings or from sale of stock of said company, or in lieu of same (if not paid in cash) issue and deliver to said bank such an amount of stock as will in the aggregate amount to the entire balance unpaid of the indebtedness of the Acme Lime Company, Avondale Marble Company, indorsed notes of Hunt, Hepburn and Vollmer, also business paper of Gimm Deitrich, or any other like obligations on which the former operations or companies have received the money on, by being discounted at and by said bank, and said obligations still remaining unpaid, or any portion thereof, after all collateral held by said bank (that can legally be disposed of) have been sold, and the proceeds thereof applied to the payment and discharge of said indebtedness of said several companies or operations above mentioned. ” This as already said was put into writing by the bank itself as expressing the oral agreement made at the time of the execution of the note, and it must therefore be accepted and treated as cotemporary with it.

The underlying motive and real intent of this arrangement as testified to by the defendant were that the bank was the holder of obligations of the Acme Lime Company, Avondale Marble Company and other predecessors and constituents of the reorganized Pennsylvania Marble and Granite Company, and was willing to put money into the new enterprise to save its investments already involved in the old ones. And the note of defendant was given for appearances, as a nominal equivalent for the money so advanced, in order to avoid question with the bank examiner and the controller of the treasury.

Against this ample and complete explanation the plaintiff set up that the writing did not contain the whole agreement, two matters being overlooked or accidentally omitted as stated in the charge; first, that Shaw “ was to furnish monthly statements of the profit or loss at which this business was being conducted, because under the agreement they were to receive one-third of the profits if there were any ; and the second was that he was to see to the furnishing of the stock or cash which was to satisfy them or to secure them in their unsecured notes which they held against Yollmer, Grimm, The Acme Lime Company and some others. ”

Of these matters it is to be said in the first place that it does not appear that the omissions were at all material. It is not shown that the plaintiff lost any profits that were made to which it was entitled, or that it ever demanded and was refused the stock which the written agreement called for as collateral for the indebtedness of the Acme Lime Companjr and the other parties named.

The defendant denied positively that there were any such omissions in the writing as were alleged. Some discrepancies in his testimony are shown, but they are on minor and immaterial points and perhaps not to be wondered at considering the lapse of six or seven years between the transaction and the trials. On the main point of his exemption from liability his testimony is clear and positive and in accordance with the writing. The case does not really need his testimony at all, but could stand firmly on the writing alone.

For the plaintiff on the other hand the bank directors, five in number, testified, as summed up in the charge, that “these two omissions were made and that even when the paper was read over to them and they approved it and ordered their officers to execute it and forward a copy to Mr. Shaw, that it was an oversight on their part, that they mistook or did not recall it at that time, and it seems did not recall it until a far later period, and not until there was some litigation entered into or about to be commenced in connection with this note itself. . . . But this is their recollection after some years as against a written instrument executed only two months or a little more after the time that the oral agreement was made, when they attempted to put it in writing.” The learned judge, in submitting it to the jury, gave them the correct, rule in these words, “ in a case of this character the testimony should be clear, precise and indubitable. When they attempt after several years to say that an instrument in writing made by themselves, fathered by themselves and presented to the defendant here is their understanding of the agreement, I say that the testimony, to satisfy you that it was not the agreement made on February 3, should be testimony that would convince you of that fact beyond question, or in other words, that the testimony should be full, precise and indubitable. ” He nevertheless submitted it to the jury and in this there was error. It was not up to the standard required and the jury should have been directed to say so.

Judgment reversed and judgment directed to be entered for the defendant non obstante veredicto.


author: Mr. Justice Brown,

text:
    Rogers v. Schadt, Appellant.

      Sale — Personal property — Transfer of possession — Fraud—Wrongful levy.

    In an action of trespass against a sheriff and the plaintiff in an attachment under the Act of March 17, 1869, P. L. 8, it appeared that the plaintiff in the trespass claimed the goods attached, by a bill of sale from his brother who was the defendant in the attachment. There was evidence which tended to show that the plaintiff took title to the goods in good faith, for a valuable and fairly adequate consideration, without collusion with his brother in any attempt to defraud the latter’s creditors, and that he had taken possession of the goods as far as he could under the usages of trade and business. There was evidence that the sheriff after the attachment suffered a constable to sell the goods under another writ, and that the attaching creditor was present at the time and place of sale and participated in it as a bidder. Held,
      that the evidence was sufficient to submit to the jury on the question of the plaintiff’s title to the property, and also on the question of the attaching creditor’s participation in the trespass committed by the sheriff, and that a verdict and judgment for the plaintiff should be sustained.
    Argued Eeb. 25, 1907.
    Appeal, No. 237, Jan. T., 1906, by defendants, from judgment of O. P. Lackawanna Co., March T., 1904, No. 559, on verdict for plaintiff' in case of William B. Rogers v. Charles H. Schadt and Adolph Marcus.
    Before Fell, Brown, Mestbezat, Potter and Stewart, JJ.
    Af-' firmed.
    Trespass for wrongful levy and sale of stock of goods. Before Newcomb, J.
    At the trial the jury returned a verdict for plaintiff for $2,093.40, upon which judgment was entered.
    On the rule for a new trial Newcomb, J., filed the following opinion:
    This is an action of trespass growing out of an attachment under the Act of March 17, 1869, P. L. 8, and its supplements. The defendants are the sheriff and the attaching creditors. The writ went out against one O. R. Rogers, a brother of the plaintiff here. It was issued July 2, 1903, returnable to September term following, for the purpose of seizing a stock of merchandise in a store at Moosic where O. R. Rogers had for some three years been in business. On that date the sheriff made a paper service of the writ, and finding W. B. Rogers in possession summoned him as garnishee, and not finding the defendant returned the writ as to him “nihil habet.” July 6 the sheriff closed the store, locked it, and put it in charge of a watchman by whom he kept possession of the property until July 24, when, with his permission and in his presence, the goods, or most of them, were sold at public sale by a constable. The sale was made on an execution upon a judgment recovered against O. R. Rogers, June 30, before an alderman at the suit of another creditor. In order that a levy might be made for this purpose the sheriff caused the store to be opened for the constable July 18. Out of the proceeds of the sale the sheriff received from the hands of the constable enough money to cover his writ, costs and expenses, including $54.00 paid for services of the watchman. Later, at the instance of the defendant in that proceeding and after hearing on the merits, the lien of the attachment was dissolved. The point at issue there was the bona fides of a transfer of the property by O. R. to William B. Rogers, claimed to have been made June 27. In the judgment of the court the attaching creditor failed to impeach that transaction. The plaintiff’s case here was founded upon title acquired by that transfer, coupled with notice to the defendants prior to his exclusion from the store.
    There was no dispute about the plaintiff being found in possession of the property and claiming it as his own when the sheriff went there July 2.
    As to the other defendant the evidence, if believed by the jury, was sufficient to warrant the finding that after service of the writ on this plaintiff as garnishee, but before anything had been done to exclude him from possession of the goods, he had definite notice of the plaintiff’s claim when the parties were together at the sheriff’s office; that on that occasion he assured the plaintiff of his intention to close the store unless his claim, together with one which he held by assignment, was paid in full with costs; that he was present as a bidder at the constable’s sale, and accepted the benefit of it to the extent that its proceeds were applied to the payment of costs incurred on his writ, amounting to $68.00, for which he was liable. These facts, if found, we held sufficient to warrant the inference that he participated in the trespass, if any there, were, of the sheriff. We held that the sheriff was bound upon the dissolution of his lien to restore the goods to the owner unless prevented by the intervention of some cause over which he could have no control; and that if in the meantime he voluntarily and without co-operation of the other defendant suffered them to be disposed of by the constable, the liability for their value would be that of the sheriff alone. In the abstract the duty of the sheriff in the event that his hen is dissolved, is to restore the property to the possession of the person from whom he took it, but in this case it is a matter of no moment that we said “ owner ” instead of the party in possession. The plaintiff was the party from whose possession the goods were taken, but in order to recover he had to show that he was the owner. There was a verdict against the defendants jointly showing that Marcus was found to have participated in the acts of the sheriff. His conduct was entirely consistent with that conclusion. It was such as implied his knowledge of the fact that the constable had been permitted to take the property in execution, for he was present at the time and place of sale. He participated in it as a bidder, and thereby aided and abetted it. This was the uncontradicted evidence, and coupled with his alleged declaration at the sheriff’s office before the store was closed, also uncontradicted, and with his sharing in the proceeds of the sale, and in the absence of any evidence to the contrary, leaves no doubt in our minds that it was for the jury to say whether there was any concert of action between the defendants in and about the seizure and subsequent disposition of the goods, whereby the plaintiff, if the owner, lost them. If the attaching creditor discountenanced the proceeding in any way he did not say so at the trial.
    We see no error in submitting the question of joint liability^ to the jury, and this disposes of the only reason urged for new trial on behalf of Marcus.
    As to the merits: The ground of defense was the alleged fraudulent character of the sale under which the plaintiff claimed title from the defendant in the attachment. At the outset we were inclined to adopt the plaintiff’s theory that the action of the court in dissolving the lien of that writ was conclusive on that question. Further consideration convinced us that this theory was untenable and the case went to the jury at large under instructions which upon review appear to have been adequate. The verdict establishes the following facts :
    1. The plaintiff took title to the goods in question by bill of sale June 2T, 1903, in good faith for a valuable and. fairly adequate consideration, without collusion with his brother in any intent to hinder, delay or. defraud the brother’s creditors.
    2. Transfer of possession accompanied the sale: and
    3. The sheriff acted in the premises at the suggestion and instance of his codefendant after both had notice of plaintiff’s claim of title.
    These are the essentials of a case for trespass against both defendants and leave for consideration only the question of damages. The jury were instructed, as we think clearly, that the measure of damages was the value of the goods of which the evidence showed the plaintiff to have been deprived. It is now contended that we erred in commenting on the figures at which Mr. Marcus estimated the stock. An examination of the testimony shows that in referring to his testimony we had in mind the figures mentioned by Mr. Whitehead, one of his witnesses. This, of course, was a mistake, but indeed we fail to see how it is sufficient to call for a retrial of the case. It was the privilege as well as the duty of counsel to call our attention to the error at the time, and we can only account for his failure to do so upon the assumption that it passed unnoticed, a thing that would not be likely to happen where the confusing of. one witness’s testimony with that of another is at all calculated to do any harm.
    The verdict shows that the jury assessed the value of the goods at about $1,800, to which they added an amount equivalent to the legal rate of interest. Under the evidence we cannot say the damages at that figure are excessive.
    On a careful review of the whole case it is believed to have been fully tried and fairly submitted. To grant another trial would be only to allow another experiment with it. That we cannot do. The rule for new trial is, therefore, discharged.

      Errors assigned were various instructions sufficiently indicated in the opinion of the Supreme Court.

      John F. Scragg and William J. Fitzgerald, with them Ira E. Burns and Joseph F. Gilroy, for appellants,
    cited: Lingle v. Scranton Ry. Co., 214 Pa. 500; Kaine v. Weigley, 22 Pa. 179; Montgomery Web Co. v. Dienelt, 133 Pa. 585; Kinzer v. Mitchell, 8 Pa. 64.

      James II. Torrey, with him Z>. O. Qoughlin and H. W. Mumford, for appellee.
    June 25, 1907:
   Opinion by

Mr. Justice Brown,

The verdict in this case was fully justified by the evidence. Under the instructions given them as to what was essential to the plaintiff’s right to recover, the jury found that the plaintiff had acquired title to the goods seized under the attachment by a bill of sale, dated June 27, 1903; that he had acquired it in good faith, for a valuable and fairly adequate consideration, and without collusion with his brother in any intent to hinder, delay or defraud the latter’s creditors; that transfer of possession accompanied the sale, and that the sheriff acted at the suggestion and instance of Marcus, his codefendant, after both had notice of plaintiff’s claim of title.

If a trespass was committed the jury could not fairly have found that Marcus had not joined in it. D. O. Coughlin, a member of the Luzerne county bar, who represented the appellee at the time the goods were seized, testified that when he spoke to Marcus about the great damage his client would sustain in having the store closed up and offered to make a compromise, the latter replied, that unless all of the debt with costs, both his own and that of his brother-in-law held by him, were paid, he would close up the store. In addition to this, as the learned trial judge in overruling the motion for a new trial very justly says, the conduct of Marcus was such as implied his knowledge of the fact that the constable had been permitted by the sheriff to take the property in execution, for he was present at the time and place of sale and participated in it as a bidder.

Each of the twenty-one. assignments of error has been duly considered, but from no one of them does any error appear, and as to all of them, except the sixteenth, nothing more need be said than that the charge was adequate and correct; the rulings on offers of evidence and on plaintiff’s motion to strike out some which had been admitted, were proper, and the answer to each point was free from error. The case was properly tried in all respects.

The plaintiff’s title to the property seized was the fundamental question for the jury’s consideration. Though it might have been good as between him and his brother, it would not have availed as against the latter’s creditors, if the sale had not been accompanied with change of possession. The learned trial judge in his general charge instructed the jury that to make the transaction good against the creditors of O. R. Rogers there must have been not only a transfer of the title, but of possession of the goods, and that the transfer or change of possession must have been such as the nature of the property and the situation of the parties would reasonably have permitted. By the seventh point the court was asked to say to the jury that in passing upon the question as to whether there was a sale by Olin R. Rogers to W. B. Rogers, they must take into consideration all the evidence in the case, and if from it they found there was no apparent change in the ownership of the business; that so far as could be observed it was conducted after the date of the alleged sale as it had been prior thereto by Olin R. Rogers ; that the sign and business name on the property remained Olin R. Rogers, and the same clerks were employed in the business, that these were facts to warrant a finding that, even if there was a bill of sale for a valuable consideration from Olin R. Rogers to "W. B. Rogers the same was fraudulent and void in law as against the creditors of the former, and the property, regardless of the bill of sale, remained his property as against any of his creditors. This point was refused without being read and counsel for appellants insist earnestly that the refusal to affirm it was “ most palpable error.” The point as drawn could not have been affirmed without misleading the jury, for they naturally would have understood from its affirmance that if they found the specific facts set out in it, no matter what other facts might be found indicating change of ownership, they ought to find that the sale was fraudulent in law. In addition to what was said in the general charge the court, in unquálifiedly affirming the second, third and fourth points submitted by the defendants, distinctly instructed the jury that delivery of possession in personal property is indispensable to transfer a title as against creditors ; that in passing upon the question of the sufficiency of possession alleged to have been taken by W. B. Rogers they must take into consideration the nature of the acts and the usages of trade and business and, if they believed that he failed to assume such control of the property as ought reasonably to have indicated a change of ownership, the verdict would have to be for the defendants; that an ambiguous transfer of possession by O. R. Rogers to W. B. Rogers would be invalid as to the defendants and if they believed the change of possession, if any, was not apparent and visible, their verdict would be for the defendants ; and if they should find that W. B. Rogers did not do all that he might reasonably have been expected to do, even if the sale was honest, so far as indications of ownership to creditors was concerned, the verdict would have to be for the defendants. To more than this the appellants were not entitled.

The assignments are all dismissed and the judgment is affirmed on the opinion of the court overruling the motion for a new trial.

Judgment affirmed.


text:
    Casciola, Appellant, v. Donatelli.

      Trust and trustees — Resulting trust — Husband and wife — Deed—Evidence — Declarations.
    Where a married woman executes a deed of land the title to which stood in her name, without her husband joining in the deed, and subsequently brings an action of ejectment against her own grantees to recover the land on the ground that no title had passed because of the nonjoinder of the husband in the deed, evidence is admissible on the part of the defendants, that both husband and wife had on a number of occasions before the date of the deed, declared that the property was in fact the property of the husband, and not of the wife, and that the husband at the time of the execution of the deed took and appropriated to his own use the purchase money without any objection on the part of his wife.
    Where one purchases an estate with his own money and the deed is taken in the name of another, a trust of the land results by presumption, or implication of law, and without any agreement, to him who advances the money; and the consideration moving from the cestui que trust need not be money; a bond or mortgage may be given for the deed.
    Argued March 12,1907.
    Appeal, No. 336, Jan. T., 1906, by plaintiff, from judgment of C. P. Northampton Co., Dec. T., 1903, No. 28, on verdict for defendants in case of Maria Donata Casciola and Filippo Casciola her husband, in right of said Maria Donata Casciola v. Donato Donatelli and Filippo Giacomo Donatelli.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Ejectment for a lot of land in the village of Roseto. Before Scott, J.

      At the trial when Leo Donatelli, a witness for the defendants was on the stand, the following question was asked him:

      “ Q. Where did you see Filippo Casciola ? A. In New York. I don’t remember if it was on the corner of Broome and Mulberry or Grand and Mulberry; I don’t recollect. Q. What was your talk with him, and who was present ? ”
    Mr. Stewart; Objected to as incompetent and irrelevant, as no conversation with Philip Casciola can in any way affect the title of his wife, Maria Casciola, in this case.
    “ Q. You talked with Filippo Casciola ? Don’t say what he said, now ; did you talk with him at that time ? A. Filippo Casciola and his wife. Q. Were they both there? A. Yes, sir. Q. They were both there during the entire time that you talked with him. A. Yes, sir. Q. Now, what did you say to him, and what did he say to you ? ”
    Mr. Stewart: We object to this conversation, on the ground that she cannot be affected or estopped by any declarations that were made by Filippo Casciola in her presence. Also, the further objection that the testimony is not directed in any way to the time -when Maria Casciola acquired title to this property from Güito Sciovoni, but is more than a year after, and that there is no testimony tending to show that the defendants, the intending purchasers of the property, were creditors of either Maria Casciola or her husband, Filippo Casciola, at the time she took title from Güito Sciovoni, or that they knew her or were in any way interested in the property itself.
    The Court: The objection is overruled. This testimony is received for the purpose of tending to show, by declarations of Filippo Casciola, in the presence of his wife, made without objection from her, or declarations of the wife herself at the time to which the witness refers, that she was holding the title in her name as trustee for her husband by virtue of the conveyance made in September, 1897, the special plea of the defendants in this case alleging a resulting trust in her husband by reason of that conveyance to her and the conveyance of the title to these defendants subsequently. Therefore, declarations made subsequently to the time of that conveyance to Maria Casciola, by her husband in her presence or by herself, which have significance upon the question of the original' intention at the time of the conveyance to her, are competent evidence, and, for that reason, I receive this evidence as having some bearing upon the question of her ownership of the property by virtue of that conveyance.
    To which ruling plaintiff excepts, and bill sealed. [2]

      “ Q. Do you recollect meeting Mr. Parke Davis, my associate counsel in this case, in New York some time in 1905 ? A. I remember some time, but I can’t say the date. Q. Do you know whether or not it was after this ejectment suit had been started ? A. Well, yes, it was at the time they were talking about bringing this suit. Q. Or had started this suit— you don’t know which ? A. Or it was started, I don’t know. Q. "Well, you and Mr. Davis talked together, and in consequence of what he requested you to do, did you go to see Filippo Casciola or his wife? A. Yes, sir. Q. Which one of them did you see ? A. Well, I went to the residence of Filippo Casciola, and I find his wife there. Q. He was not there. A. He was not there. Q. Now, did Mr. Davis ask you whether you could get another deed from her, or whether she would settle this suit ? What did you say to her, and what did she say, about the ownership of this property ? ”
    Mr. Stewart: Objected to as irrelevant and immaterial; she is not bound to give any deed, and not estopped by any declarations she may have made.
    The Court: The objection is overruled, for the reasons I have already stated, and the evidence is received for that purpose, being the declarations of the wife alone.
    To which ruling plaintiff excepts, and bill sealed, [3]
    “ A. I found his wife at home and I ask her, where was her husband. She told me he was up at the shop in Elm street. And I told her, I says, £ This is a nice way to deal; ’ I said : ‘ You know very well that your husband took the money and you both agreed in every way, in a friendly way ; now, what does your husband want to make this fuss about ? ’ She says: £ I don’t know nothing about; you go and see him. The property belongs to him ; was in my name. I can’t say nothing; I don’t know nothing about.’ ”
    Filippo Donatelli was asked this question:
    ££ A. Leo Donatelli took him over to Filippo Casciolo and his wife and give him the money. Q. How much money did you pay over ? ”

      Mr. Stewart: Objected to asirrevelant and immaterial; and, not connected with the transaction in which Mrs. Casciola received the deed, it cannot throw any light on that original transaction.
    The Court: The objection is overruled, for the reasons that I have already given, as being some evidence tending to show that at the time of the original conveyance to Mrs. Casciola it was intended to be the property of the husband and held by her in trust for him.
    To which ruling plaintiff excepts, and bill sealed. [4]
    The court charged in part as follows :
    [Now, getting your minds to realize the fact that we are concerned with determining what was the intention of the husband, Filippo Casciola, when he took this title from Dominico Del Grosso and his wife on September 3, and on September 6, had it transferred over to his wife through Yito Sciovoni, what was his intention at that time — that is the point to .which all this testimony is naturally directed; it is suggested to you as one of the first elements in the proof here that when Del Grosso made the deed to Filippo Casciola, he paid no money. The title had been originally in him, then the deed, after the sheriff’s sale, was made by Dominico Del Grosso to Filippo Casciola on September 3, 1897, and the only consideration that was then expressed was for the mortgage of $550 ; that was Filippo Casciola’s obligation, and it thus became his own debt, and that on the sixth, Filippo and his wife transferred the property to Yito Sciovoni, without the payment of any money; no money was paid by Fillippo to Dominico Del Grosso ; no money was paid by Yito Sciovoni; and when Yito Sciovoni made the title to Maria Casciola, she paid no money. And' this is a circumstance that is ■ referred to by the defendants as showing that it was Filippo Casciola’s property ; that he paid nothing for it, but gave the obligation which stood upon the property and transferred it thus -indirectly to his wife without receiving any benefit or without paying any consideration. 'Whatever significance as an element of' proof in the consideration of the question of the intention of Filippo Casciola to thus give his wife the title and yet hold the property in himself, either because he had to leave this county or believed he had to leave this county on account of threatened prosecutions, or for any other cause, whatever significance that may have is for you in determining the question of intention.] [9]
    Yerdict and judgment for defendants. Plaintiffs appealed.

      Errors assigned among others were (1) refusal of binding instructions for plaintiffs; (2-1) rulings on evidence, quoting the bill of exceptions and (9) portion of charge, quoted above.

      E. J. Fox, with him G. F. P. Young and <T. W. Fox, for appellants.
    No resulting trust was established in favor of the husband: Earnest’s App., 106 Pa. 310; Bowen v. Haupt, 192 Pa. 406; Brickell v. Earley, 115 Pa. 473; Sackett v. Spencer, 65 Pa. 89; Burkhart v. Fire Ins. Co. of Somerset County, 11 Pa. Superior Ct. 280; Byers v. Ferner, 216 Pa. 233; Davis v. Davis, 216 Pa. 228; Kraft v. Smith, 117 Pa. 183; Hoover v. Hoover, 129 Pa. 201; Silliman v. Hass, 151 Pa. 52; Von Storch v. Von Storch, 196 Pa. 545.
    It is necessary to consider what the position of the wife was, with reference to this property. It was clearly a gift by the husband to the wife. Unless there is some clear, explicit, unequivocal evidence to show that at the time of the transfer, the purchase money was paid by the wife, and that she agreed to hold the title for her husband, no power can now deprive her of her property. She cannot be divested of her real estate by reason of her silence at the time of the negotiations, conducted by the agent of the plaintiffs and her husband: Glidden v. Strupler, 52 Pa. 400; Quinn’s Appeal, 86 Pa. 447; Buchanan v. Hazzard and Wife, 95 Pa. 240; Innis v. Templeton, 95 Pa. 262; Davison’s Appeal, 95 Pa. 394; Stivers v. Tucker et al., 126 Pa. 74.
    A married woman cannot be divested of her title by her own declarations : Rumfelt v. Clemens, 46 Pa. 455; Glidden v. Strupler, 52 Pa. 400.

      F. W. Edgar, with him Parlce II. Davis, for appellees.
    It is not necessary that the consideration which moves from the cestui que trust should be money; it may consist of anything of value: Bispham, Eq. sec. 81,

      A bond may be given for the deed: 2 Washburn on Real Prop. (4th ed.) p. 477, and cases cited : 3 Pomeroy, Eq. (3d ed.), sec. 1037; Morey v. Herrick, 18 Pa. 123.
    This presumption of gift is merely a presumption of fact which determines the burden of proof: Earnest’s Appeal, 106 Pa. 310.
    Admissions of fact by the holder of record title to establish a resulting trust are evidence permitted by the statute: Kimmel v. McRight, 2 Pa. 38; Fisler v. Stewart, 191 Pa. 323; McClenkan v. McMillan, 6 Pa. 366; Galbraith v. Galbraith, 190 Pa. 225; Smithsonian Institution v. Meech, 169 U. S. 398 (18 Sup. Ct. Repr. 396); Williard v. Williard, 56 Pa. 119; Blodgett v. Hildreth, 103 Mass. 484; Hiester v. Laird, 1 W. & S. 245.
    June 25, 1907:
   Opinion bv

Mr. Justice Brown,

The defendants below took title to the property in controversy from Maria Donata Oasciola by deed dated September 17, 1898. At that time she was the wife of Eilippo Casciola, but he did not join in the deed. If the property belonged to the wife nothing passed to the appellees by her defective deed, and the verdict ought to have been for her, but if she held the title as trustee for her husband, her deed conveyed his interest and the verdict was properly returned for the defendants. Upon the facts in the case, as gathered fropi the evidence submitted by the appellees, the learned trial judge could not have withheld from the jury the question of a resulting trust in the wife. The main contention of counsel for appellants is that the court should have affirmed their sixth point, asking that a verdict be directed for them because the evidence was insufficient to establish the alleged trust; and their criticism of the charge is not that it was not technically correct, but that it was made at all.

On September 3,1897, Guitana Del Grosso and her husband, Dominco Del Grosso, conveyed this property to Eilippo Oasciola, the husband of the plaintiff below. The consideration named in the deed was $550, but no money was paid, the vendor taking a purchase money mortgage for $550. On September 6, 1897, Filippo Oasciola and his wife conveyed the property to Yito Sciovoni in consideration of $550, which was not paid by him, as he was but the intermediary to convey the property to Maria Donata Oasciola, which he did by deed bearing the same date and naming the same consideration. On September 17,1898, Maria Donata Oasciola conveyed the premises to Donata Donatelli and Filippo Giacomo Donatelli, the appellees, in consideration of $1,000, $450 of which was cash, and the balance the assumption of the mortgage of $550. In October, 1903, more than five years afterwards, this suit was brought in the right of Maria Donata Oasciola for the recovery of the premises, for the reason that the property was hers and the appellees had acquired nothing under the deed which she gave them.

The question submitted by the court to the jury was whether on September 6, 1897, when Filippo Oasciola had the deed made to his wife, “ it was made to her intending that she should hold the written paper only, but that he should retain possession of the property, and that she was the trustee.” In submitting this question the jury were instructed that the burden was on the defendants to show by clear, precise and indubitable evidence that their contention that the title was given to her in trust was sustained. They were further instructed that unless it was the intention to create the trust at the time the deed was made, there could be no recovery, as a purpose subsequently formed would not be sufficient to create it, but they \yere also told that the declarations made at subsequent times by the husband and wife were evidence to show what the purpose was at the time the deed was made.

Where one purchases an estate with, his own money and the deed is taken in the name of another, a trust of the land results by presumption or implication of law, and without any agreement, to him who advances the money : Dyer v. Dyer, 1 Lead. Cas. in Eq., *203; Bispham’s Equity, 118-120; Lynch v. Cox, 23 Pa. 265; Edwards v. Edwards, 39 Pa. 369; Smithsonian Institution v. Meech, 169 U. S. 398; Galbraith v. Galbraith, 190 Pa. 225; and the consideration moving from the cestui que trust need not be money; a bond or mortgage may be given for the deed: Bispham’s Equity, sec. 81; 15 Am. & Eng. Ency. of Law (2d ed.), p. 1145; Morey v. Herrick, 18 Pa. 123. If the conveyance from Seiovoni had been to another than the wife of Filippo Casciola, an implied trust would have resulted in Ms favor because Ms bond and mortgage had been given to Grosso for the payment of the purchase money. This rule has its foundation in the natural presumption, in the absence ■of all rebutting circumstances, that he who supplies the purchase money intends the purchase to be for his own benefit, and not for another, and that the conveyance in the name of another is a matter of convenience and arrangement between the parties for collateral purposes, and this rule is indicated by the experience of mankind: ” 1 Perry on Trusts, sec. 126. But as the conveyance was made to Oasciola’s wife, the presumption is that it was a gift to her by him. This, however, is but a presumption, and, though strong, is not conclusive and may be overcome, the burden resting upon those who seek to establish this trust to overcome it. If the presumption that the conveyance was a gift to the wife has been overcome, the contention of the appellees is that the title was in her as trustee.

Was the presumption of a gift overcome? Leo Donatelli, called by the defendants, testified that when he made the bargain for the purchase of - the property by the appellees he did so with the husband in the wife’s presence, and that the husband said: “ The house is on my wife’s name, but it belongs to me. I made some kind' of a fake deal and gave it to my wife, but really, the house is mine.” She made no reply to this. Baphael Ealconi’s testimony was that she said to him: “ The property was my husband’s property, but the paper is in my name.” Anna Sabatino stated that she said to her: The property belonged to my husband, but the papers is in my name.” And Dominco Sabatino testified that she said to Mm : “ The property is on my husband and the paper is on me.” All of these conversations took place before the Donatellis purchased the property, and having been against the interest of the wife were admissible to rebut the presumption of a gift to her and to establish the contention of the appellees that she held the title in trust for her husband. After the title was put in her name the husband took out an insurance policy on it and paid the premiums. Some time after the property was sold to the appellees he refused to pay the insurance assessment, saying that he had sold the property. When the purchase money was paid it was paid to him in the presence of his wife. From the $450 he took $60.00 or $75.00, and gave it to his mother-in-law, saying, “ this is the money I owe you,” and put the rest in his pocket. This all took place in the presence of his wife, who said nothing. The foregoing testimony was believed by the jury. It overcame the presumption of a gift to the wife, and' there was clear evidence of what the intention of herself and husband was at the time the conveyance was made to her.

In the charge the rights of the plaintiff Avere most carefully guarded, and under it there Avould have been a finding in her favor if what she and her husband testified to and Avhat was said by their witnesses had been believed by the jury. Every position taken by the appellant was sustained in affirming the first five points submitted; the sixth only, refusing binding instructions in her favor, was refused.

The case Avas one of fact for the jury under proper instructions. The rulings on offers of evidence were proper and the charge on the legal aspect of the case is absolutely free from error.

The assignments are all overruled and the judgment is affirmed.


text:
    Grafius Run.

      Municipalities — Waters—Change of course of stream — Sewers—Damages — Benefits—Act of April 28, 1899, P. L. 74.
    Where a municipality by ordinance directs the construction of a main storm sewer, and subsequently and after the sewer has been constructed directs by another ordinance that a run should be changed and relocated so that the water thereof should be deflected into the sewer, and thereafter viewers are appointed who do not assess the damages, costs and expenses resulting from the change of the course of the run, as provided by the Act of April 28, 1899, P. L. 74, but do ascertain the cost of the sewer, and assess benefits against properties not on the line of the improvement, such assessment of benefits is invalid, and will be set aside.
    Argued March 18, 1907.
    Appeal, No. 81, Jan. T., 1901, by the City of Williamsport, from judgment of Superior Court March T., 1906, No. 9, reversing judgment of C. P. Lycoming Co., March T., 1901, No. 332, assessing damages from appeal of award of jury of view In re Grafius Run.
    Before Mitchell, O. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Appeal from judgment of the Superior Court. See 31 Pa. Superior Ct. 638.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was the judgment of the Superior Court.

      Frank P. Gummings, city solicitor, for appellant.
    The claim of appellees that their properties do not abut on the line of the improvement has no merit, as the map prepared and filed in this case by the viewers, as a part of their report, locates the properties of the appellees within the line of the high waters of the diverted stream, and hence places them on the line of the improvement.

      II. W. Pyles, with him Ames dé-Hammond, for appellee.—
    The authorities establish the general rule, based upon the consideration of the nature of local assessments for public improvement, that the legislature has not power to authorize a municipal assessment therefor upon nonabutting property for paving, sewering or other improvement of the same kind : Morewood Avenue, 159 Pa. 20; Orkney Street, 9 Pa. Superior Ct. 604-611; Witman v. Reading, 169 Pa. 375; Park Avenue, 169 Pa. 433; Fifty-fourth Street, 165 Pa. 8; Beechwood Avenue, 179 Pa. 490; Colwyn Borough v. Tarbottom, 9 Pa. Superior Ct. 414; Thirteenth Street, 16 Pa. Superior Ct. 127, 130; Grant Street, 17 Pa. Superior Ct. 459.
    June 25, 1907:
   Opinion by

Mr. Justice Brown,

By the Act of April 28, 1899, P. L. 74, boroughs and cities are authorized to change the course or channel of a run or natural water way within the municipal limits, and against properties benefited by such change there may be assessed a fair and ratable portion of the damages, costs and expenses resulting therefrom. Under the provisions of this act the course of Grafius Run, a natural stream running through the city of Williamsport, was changed, and proceedings were instituted by the city to compel the owners of properties benefited by the change to pay a part of the costs and expenses alleged to have been incurred in making the change. Properties that had been damaged by the overflow of the run, but which do not abut on the sewer into which its waters are' deflected, were assessed for the resulting benefits. The court below sustained these assessments, but, upon appeal to the Superior Court, this was reversed: Grafius’ Run, 31 Pa. Superior Ct. 638.

It is clear from the report of the viewers that the act of 1899 is not involved in the assessments made by them, and the one against the property of the appellees is, therefore, void. By an ordinance approved August 17, 1900, the city amended its plan of sewerage and drainage by providing for the construction of a main storm sewer eleven feet in diameter, running from the intersection of Locust street and Rural avenue to the Susquehanna river. One of the purposes of this sewer was to dispose of the waters of Grafius Run, but several branch or lateral storm-water sewers draining certain portions of the city were to empty into it. By this ordinance the natural course of Grafius Run was not changed or relocated, and the action of the city in passing it is to be regarded simply as one relating to its general sewerage system, to which the act of April 28, 1899, does not apply. If, by the construction of this large sewer,- properties abutting on the line of it are benefited, they may be assessed under the Act of May 16, 1891, P. L. 71, but not under the act of 1899, relating to the changing alteration or relocation of a natural water course.

On January 23, 1901, nearly six months after the approval of the ordinance authorizing the construction of the large storm sewer, the city passed the ordinance under which the proceedings below were instituted. This later ordinance changed the course of Grafius Run and directed that upon the completion of the sewer to be constructed under the ordinance of August 17, 1900, the waters of the run should be deflected into it, the receptacle of drainage from other smaller sewers to be connected with it.

What the city might have done under the act of 1899 was to change by ordinance the course or channel of the run, and “after the passage and approval” of the same petition the court for the appointment of viewers to ascertain the damages, costs and expenses resulting from the change, and to fairly and ratably assess the said damages, costs and expenses, or so much thereof as might be just and reasonable upon the properties benefited by the change. Bat this is not what the city did. It first, in 1900, amended its plan of sewerage and drainage, and in amending the same provided that, among other drainage into the large sewer, there should be that of Grafius Run. Subsequently, in 1901, it changed the course of this run and directed that its waters should be deflected into the large main sewer, extending from the intersection of Locust street and Rural avenue to the Susquehanna river and, along its route, receiving the contents of several smaller sewers having no connection with Grafius Run. It is manifest that the cost, expense and construction of this main sewer did not result from the change of the course of the run, and, if they did not result from such change, their ascertainment was not for viewers appointed under the act oE 1899. The damages, costs and expenses to be ascertained by viewers appointed under that act are those “ resulting from the vacation, change, alteration or relocation of the course or channel ” of any creek, run or natural water way.

The viewers were appointed “ to ascertain the damages, costs, expenses and benefits resulting from the alteration, vacation, change or relocation of the course or channel of Grafius Run, and to fairly and ratably assess the damages, costs and expenses, or so much thereof,” as they might deem just and reasonable upon the properties benefited or affected by the change ; but they made no such report. They report nothing at all as to damages, costs and expenses resulting from the change in the course of the run. Their report is simply, “ That the estimated cost of construction of the main sewer down Locust street, from High street to the river, is about $95,000, of which sum the undersigned viewers have assessed against the properties which, in their judgment, are or will be affected by the proposed improvement, the sum of $25,398.” The “ proposed improvement ” is a sewer benefiting not only those properties which had been damaged by the overflow of the run, but others in other portions of the city, forinto it there will empty the waters of several branch or lateral storm-water sewers draining portions of the city in no way connected with or affected by Grafius Run. If the property of the appellees is benefited by the construction of this main sewer, they cannot be called upon to pay any portion of the cost or expense of the construction of the same, even under the act of 1891, for they are not abutting owners : Witman et al. v. City of Reading, 169 Pa. 375; Parker’s Appeal, 169 Pa. 433; Beechwood Avenue Sewer Cases, 179 Pa. 490.

For the reason stated in this opinion the order of the Superior Court reversing the order of the court below in confirming the report of the viewers is affirmed.


text:
    Muncy Electric Light, Heat & Power Company v. Peoples' Electric Light, Heat & Power Company, Appellant.

      Boroughs — Lighting by electricity — Contract—Exclusive privilege— Electric light company — Equity—-Acts of April 3, 1851, sec. 2, P. L. 320, May 8, 1889, P. L. 136, and May 20, 1891, P. L. 90.
    Under the Acts of April 3, 1851, sec. 2, P. L. 320, May 8, 1889, P. L. 136, and May 20, 1891, P. L. 90, a borough has the power to enter into . a valid contract with an electric light company by which the latter is given the exclusive franchise for ten years to supply the borough and its inhabitants with electric light, with the right of the borough to purchase the company's plant at the end of the term, or failing that, to renew the term for another ten years; and equity has jurisdiction to prevent interference with the operation of such contract either by the borough, or by another electric light company claiming a franchise from the borough.
    Argued March 19,1907.
    Appeal, No. 114, Jan. T., 1907, by defendants, from decree of C. P. Lycoming Co., March T., 1907, ,No. 1, on bill in equity in case of the Muncy Electric Light, Heat & Power Company and Jennie A. Painter v. The Peoples’ Electric Light, Heat & Power Company of Muncy, Pa., and the Burgess and Town Council of the Borough of Muncy.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.

      Bill in equity for an injunction.
    The bill alleged that the Muncy Electric Light, Heat & Power Company was incorporated under the laws of the state of Pennsylvania in 1893, for the purpose of furnishing light, heat and power by electricity in the borough of Muncy, that by ordinance No. 89 of the borough of Muncy approved September 11, 1893, and the proposition referred to therein, said borough, for a valuable consideration, granted to the Muncy Electric Light, Heat and Power Company plaintiff, the exclusive right to erect poles and extend wires upon the highways of the borough; that nevertheless said borough on October 1,1906, passed an ordinance granting to the Peoples’ Electric Light, Heat and Power Company of Muncy, Pennsylvania, the right and power to erect and maintain poles, and extend its wires upon the highways of said borough for the purpose of supplying light, heat and power by means of electricity, to the borough and citizens of Muncy, and that in pursuance of such authority, said Peoples’ Electric Light, Heat and Power Company were planting their poles and stringing their wires on the highways of the borough, and prayed for an injunction to restrain the Peoples’ Electric Light, Heat and Power Company, defendant, from exercising its corporate functions within said borough.
    The borough of Muncy and the Peoples’ Electric Light, Heat and Power Company, defendants, filed a joint answer and denied that the borough of Muncy by virtue of said borough ordinance No. 89, dated September 11, 1893, or by any agreement, granted to the Muncy Electric Light, Heat and Power Company, plaintiff, the exclusive right to erect poles and extend its wires upon the public highways of the borough, or that any consideration for such exclusive right passed from said Muncy Electric Light, Heat and Power Company to said borough. The answer further averred that the Peoples’ Electric Light, Heat and Power Company was duly chartered under the laws of the state of Pennsylvania on October 23, 1906, for the purpose of the manufacture and supply of light, heat and power or any of them by means of electricity to the public in the borough of Muncy; that by virtue of an ordinance of the burgess and town council of the borough of Muncy dated October 1, 1906, the Peoples’ Electric Light, Heat and Power Company was authorized to erect its poles and extend its wires upon the highways of said borough, and that said Peoples’ Electric Light, Heat and Power Company was in good faith prosecuting its chartered privileges, when arrested by injunction.
    The case was heard on bill, answer and proofs.
    The court in an opinion by Hart, P. J., filed the following decree:
    1. That the ordinance of the borough of Muncy, dated October 1, 1906, in so far as the same purports to grant to the Peoples’ Electric Light, Heat and Power Company of Muncy, Pennsylvania, or to any person or persons in its behalf, authority to erect and maintain poles and extend electric wires through the streets, alleys and thoroughfares for the purpose of supplying light, heat and power by means of electricity to the borough and the citizens of Muncy and vicinity, is declared null and void.
    2. That the Peoples’ Electric Light, Heat and Power Company of Muncy, Pennsylvania, one of the defendants, is enjoined and restrained from erecting poles or extending electric light wires in the streets, alleys or thoroughfares of the borough of Muncy aforesaid, for the purpose of furnishing light, heat or power to the borough and citizens of Muncy, until September 11, 1913, the date of the expiration of the contract entered into between the said borough of Muncy and the Muncy Electric Light, Heat and Power Company of Muncy, Pennsylvania, dated September 11, 1893.

      Error assigned, amongst others was the decree of the court.

      William, P. Beeber and John J. Reardon, for appellants.—
    The borough had no right to grant an exclusive franchise to the plaintiff : Whelen’s App., 1 Atl. Repr. 90; Meadville Nat. Gas Co. v. Meadville Fuel Gas Co., 1 Pa. C. C. Rep. 448; Home Electric Co., 11 Pa. C. C. Rep. 179; Freeport Water Works Co. v. Prager, 129 Pa. 605; Clarksburg Electric Light Co. v. Clarksburg, 47 W. Va. 739 (35 S. E. Repr. 994); Grand Rapids Electric Light & Power Co. v. Edison Electric Light & Fuel Gas Co., 33 Fed. Repr. 659.

      Seth T. MoOormiek, for appellees.
    There can be no doubt whatever that the borough of Muncy had the power to contract for a supply of light for the borough and its inhabitants: Wade v. Oakmont Borough, 165 Pa. 479; Seitzinger v. Electric Illuminating Co., 187 Pa. 539; New Orleans Gas Light Co. v. Light, etc., Mfg. Co., 115 U. S. 650 (6 Sup. Ct. Kepr. 252).
    The principle that thegrant of exclusive privilege is not prohibited by the constitution or void from being against public policy has been repeatedly affirmed by this court, in the case of water companies supplying water to the inhabitants of municipalities under legislative enactment authorizing the same:White v. City of Meadville, 177 Pa. 643; Metzger v. Beaver Falls Borough, 178 Pa. 1; Wilson v. Borough of Rochester, 180 Pa. 509; Troy Water Co. v. Troy Borough, 200 Pa. 453; Penna. R. R. Co. v. Pass. Ry. Co., 167 Pa. 62; Allegheny v. St. By. Co., 159 Pa. 411; Erie v. Paskett, 14 Pa. Superior Ct. 400; City of Erie v. Griswold, 184 Pa. 435; Western Saving Fund Society v. Philadelphia, 31 Pa. 185; Baily v. Philadelphia, 184 Pa. 594; White v. City of Meadville, 177 Pa. 643.
    A municipal ordinance of this kind is such a contract the impairment of which is forbidden by section 10 of article I of-the constitution : Potter County Water Co. v. Austin Borough, 206 Pa. 297; Des Moines St. Ry. Co. v. Des Moines, etc., St. Ry. Co., 73 Iowa, 513 (33 N. W. Repr. 610); Vincennes v. Citizens’ Gas Light Co., 132 Ind. 114 (31 N. E. Repr. 573).
    June 25, 1907:
   Opinion by

Mr. Chief Justice Mitchell,

By the general borough Act of April 3, 1851, sec. 2, P. L. 320, boroughs are empowered to light the streets,” and this has been expressly held to include the power to contract for lighting with electricity: Wade v. Oakmont Borough, 165 Pa. 479; Seitzinger v. Electric Illuminating Co., 187 Pa. 539. In the former case the contract which was for seven years was sustained, though the stress of the attack on it was not made on the length of the time but on the increase of the borough debt. In the Seitzinger case it was expressly decided that the contract need not be limited to a single year.

By the Act of May 20, 1891, P. L. 90, boroughs have the further right to manufacture electricity for commercial purposes for the supply and use of the inhabitants of said boroughs, and may introduce the arc or incandescent electric light or any other form or style of electricity that may be deemed most expedient and desirable, and said boroughs may enact such ordinances as may be proper and necessary to introduce and supply the inhabitants of said boroughs who may desire to use said electricity,” etc.

Under these two statutes there can be no question of the validity of the. grant to the Muncy company of the franchise to erect poles and wires in the streets of the borough. Indeed, that is not questioned. But the proposition made to the borough council in behalf of the company was that the council should grant a franchise for ten years, with the right of the borough to purchase the plant at the end of the term, or failing that to renew the ter in for another ten years. The proposal further stated that “ the franchise will consist of an ordinance granting the exclusive right of placing poles and wires upon all streets and alleys,” etc. The council passed the desired ordinance and incorporated the exclusive feature in it by expressly enacting that “ the proposal of the said Muncy Electric Light Heat and Power Company (a copy of which is hereto appended) is hereby declared to constitute a contract.” There can be no doubt that this was a contract between the Muncy company and the borough, and that it must be treated on the same footing as a contract between individuals: Jolly v. Monaca Borough, 216 Pa. 345. But it is objected that the borough had no authority to make the franchise exclusive, and it is said that there is no decision in Pennsylvania sustaining such a grant without express legislative sanction. This, however, does not present any serious difficulty.

Both companies, parties to this litigation, were incorporated under the Act of May 8, 1889, P. L. 136, which provides that “ No company which may be incorporated under the provisions of this act shall enter upon any street in any city or borough of this commonwealth until after the consent to such entry of the councils of the city or borough in which such street be located shall have been obtained.” Neither company, therefore, had any rights in the streets except by the borough’s consent. The borough was under no obligation to consent at all. It might have built its own light plant and refused all franchises to others. Or it might have granted a franchise on its own terms and conditions: Allegheny City v. Millville, etc., St. Ry. Co., 159 Pa. 411. And what the borough might do by itself it might do by contract with others. That is what it did here. Instead of expending the public money in building a plant it accepted the offer of the appellee to build the plant in consideration of a franchise which was to be exclusive for ten jmars. It was a valid exercise of the borough’s contractual power, on a valid consideration, and cannot now be rescinded directly or indirectly at the will of one party.

This is a clear case for equity jurisdiction. The breach of contract is undeniable and a suit at law would be an inadequate remedy for there could be no certain or satisfactory standard for the measure of .damages.

Decree affirmed.


author: Mr. Justice Stewart,

text:
    Perkiomen Railroad Company v. Kremer, Appellant.

      Railroads — Right of toay — Ejectment—Evidence—Province of court and jury.

    In an action of ejectment by a railroad to recover land alleged to be included within the company’s right of way, it appeared that the plaintiff claimed title by a general release executed more than thirty years before by defendant’s predecessor in title. The lease did not describe the land by metes and bounds. The plaintiff offered in support of his contention nothing except the deed of release, and the oral testimony of its engineer, who spoke simply as an expert' from data obtained from the company’s office, and information which he had derived on inquiry of others, supposed from long residence to be familiar with conditions as they had existed. The witness had not assisted in the original location of the road. The authenticity of the data consisting of plans and notes, was not admitted by defendant. Held, (1) that it was reversible error to take the case from the jury and direct a verdict for the plaintiff; (2) that the burden was on the plaintiff to establish its title to the land in dispute, and this could only be done by evidence satisfactory and convincing to the jury, and (3) that as the evidence was wholly oral, this of itself necessarily drew the case to the jury.
    However clear and indisputable may be the proof, when it depends upon oral testimony, it is nevertheless the province of the jury to decide under instructions from the court as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of evidence.

      Estoppel — Declarations—Evidence—Railroads.
    That which parties cannot pass by their direct act, they cannot pass by way of estoppel through their conduct.
    In an action of ejectment by a railroad company to establish title to land alleged to be included within the right of way, testimony as to declarations made and directions given by certain subordinate officers of the railroad company, are inadmissible. As none of such parties could have given away, or conveyed any part of the company's property, they cannot by their acts or declarations pass title to it by way of estoppel.
    Argued March 19,1907.
    Appeal, No. 324, Jan. T., 1906, by defendant, from judgment of O. P. Montgomery Co., March Term, 1905, No. 17, on verdict for plaintiff in case of Perkiomen Railroad Company v. Michael M. Kremer.
    Before Mitchell, C. J., Pell, Brown, Mestrezat and Stewart, JJ.
    Reversed.
    Ejectment for land in the borough of Schwenksville. Before Weand, J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged as follows :
    Generally, when property is acquired by a railroad company, either by grant or condemnation, the extent of the grant or of the taking under the proceedings in condemnation can be ascertained from the papers on file, either from the deed or from the drafts accompanying the condemnation proceedings. Where that is done, there can be no question as to the location of the road, or, rather, of the property deeded or taken. Now, although a deed may be made to a railroad company for a certain quality of land, and the railroad company, in the location of its land, locates it over such lines, it cannot be said that they have lost their right to the full extent of the grant. By so doing they may be trespassers on another’s property; but that fact does not take away their title to the land actually claimed then or taken by them under proceedings in condemnation and paid for under such proceedings. Where the extent of the grant is uncertain and cannot be definitely ascertained, either from the deed or from the proceedings in condemnation, or from the necessary papers fixing the location and construction of the road, evidence can be introduced to show what the railroad has done as defining the extent of their grant.
    In this case, the first duty of the railroad company was to show title to this property in dispute. They produce a deed of release, which calls for thirty-five feet of ground on the west side of the railroad. There have been, produced here drafts, field notes, and another data in the possession of the railroad company, according to which this railroad was constructed.
    It was said, in Philadelphia & Reading Railroad Co. v. Obert: “ To establish the true location of a railroad in Pennsylvania, is a matter peculiarly within the power of the railroad company. There is not, and never has been, any requirement that the location should be anywhere filed or recorded for the benefit of parties interested. The papers indicating the lines are the property of the company, and are ordinarily inaccessible to persons having no connection with the company.” Therefore, these original records are evidence, and strong evidence, as to what the railroad company did in this particular case. The engineer, who was examined upon the stand, testifies that he examined these documents, in the possession of the railroad company, which show the original surveys and location; that the description therein contained of this particular property accords, in every particular, with the description and with the draft accompanying the deed of release ; and he further says: “ Q. Are there any metes or bounds contained upon that draft, any more than there are upon the draft attached to the release in question ? A. They are the same. Q. Then there are no metes and bounds? A. There are. Q. There are metes and bounds ? A. The curvature is given, the width is given, the beginning and ending points were given.” And then he declares that, from his measurements made recently, he has located this railroad property with such accuracy as that it brings the disputed point 'within the deed of release and as being part of the thirty-five feet that time mentioned as being on the west side of the railroad company. This evidence, of pourse, if believed, would establish that this defendant unfortunately is on the railroad property; and, in order that the, jury could find against this evidence, there ought to be something which would warrant such a finding.
    The only evidence introduced that would contradict the testimony of the railroad engineer is that of Mr. Miller, a surveyor, and there is nothing in his testimony, in the opinion of the court, which contradicts the testimony of the railroad engineer. Mr. Miller admits that he knows nothing of the original location of the„road. He did not have access to these original documents, and he is not prepared to say that the evidence of the railroad engineer is not corred Therefore, in the opinion of the court, the jury would not be justified in rejecting this testimony as to where this property was located, as defined and mentioned in the deed of release. Now, if that is the case, then what is there to show that this defendant has any rights to this property ?
    It is said, in the first place, that the railroad company, instead of taking forty-five feet on the east side of the road, have taken more than that, and, with what they have taken there, some fifty-five feet, added to twenty-five feet on the west side, would give them their full eighty feet, and would give Mr. Kremer the ground that he claims. I cannot admit that such is the fact. The ground on the east side of the road is not inclosed by any fences, nor is there any evidence that the railroad company has ever assumed any ownership over it, even to the extent of their forty-five feet; and if, therefore, they have committed an illegal act, yet even if they have done so, it would hot divest them of their right to the thirty-five feet on the west side. It is further said that, inasmuch as this deed of release required the owners of the property on the west side to maintain fences, the erection of the buildings on that line is equivalent to the erection of fences and establishes the line. I do not understand that to be the law. There is not a particle of evidence in.this case that the railroad company ever consented to the erection of those buildings, nor that any person connected with the railroad company had any authority to define the limits of the railroad company, by which either Mr. Kremer or Mr. Bergy, or their predecessors, would have the right to say that that was the line. It may have been that the employees of the railroad company were mistaken, and that they actually thought that twenty-five feet would be all that the railroad company was entitled to; but because they may have thought so, or may have led Mr. Kremer, or Mr. Bergy, or any one at that time owner, to have believed that such was the fact, that cannot affect the railroad company. It cannot be that the employees of a railroad company can give away the property of the railroad company in that way.
    It is further said that Mr. Kremer and his predecessors have used this property for such length of time, as that, by adverse user, they have acquired title thereto. I cannot assent to this proposition. It is said that there is no Pennsylvania case on this subject. In Philadelphia & Reading Railroad Co. v. Obert, 109 Pa. 193, it is assumed that such cannot be the fact. It is said there: “ Assuming that a railroad is, in a qualified sense, a public highway, held under the commonwealth’s right of eminent domain, under the charter, and that title to the lands covered by the location as against the company could not be acquired by adverse possession,” and so forth. That same expression was used in Bassett v. Penna. R. R. Co., 201 Pa. 226, where again this same question was raised: “ Assuming that a railroad is, in a qualified sense, a public highway, held under the commonwealth’s right of eminent domain under the charter, and that title to the lands covered by the location as against the company could not be acquired by adverse possession,” and so forth. And so in Zahn v. Ry. Co., 184 Pa. 66, this same expression of opinion occurs ; and, therefore, whilst the authorities are numerous in other states that it can be acquired, the trend of authority in Pennsylvania is against such a doctrine. Railroads are regarded as public highways, the same as turnpike companies and the same as our ordinary roads, and the law does not allow their rights to be interfered with in the manner claimed by this defendant.
    [I, therefore, am of the opinion that this is purely a question of law, that there is no evidence here which would warrant its submission to the jury, and that, no matter what injury this may inflict upon this defendant, I am bound to instruct the jury as I view the law, and that is, that, under all the evidence in this case, their verdict must be for the plaintiff.] [9]

      [I, therefore, direct that all evidence on the part of employees of the railroad company, tending to show consent by the railroad company of the building of the buildings on this line, or of the fixing of the line, be stricken out.] [10]
    Yerdict and judgment for plaintiff. Defendant appealed.

      Errors assigned among others were (9, 10) above instructions, quoting them.

      M. II. La/rzelere, for appellant.
    The case was for the jury: Phila. & Reading R. R. Co. v. Obert, 109 Pa. 193; West Chester & Phila. R. R. Co.’s App., 13 Atl. Repr. 214; Zahn v. Ry. Co., 184 Pa. 66.
    If there was silence with knowledge, and both must be conceded, estoppel obtains. If actual participation in fixing the building lines .took place, then there was encouragement which renders the doctrine applicable. In either case the company is estopped: Chapman v. Chapman, 59 Pa. 214; Wahl v. Pitts. & West. Ry. Co., 158 Pa. 257; Redmond v. Excelsior Saving Fund, etc., Assn., 194 Pa. 643; Logan v. Gardner, 136 Pa. 588.

      Montgomery Eocms, with him. John M. Dettra, for appellee.
    June 25, 1907 :
   Opinion by

Mr. Justice Stewart,

The one question in the case was, whether the strip of land in dispute was included in the right of way which defendant’s predecessor in title had conveyed to the plaintiff. The deed of release, executed and delivered in 1869, contained only a general description of the premises, and the exact boundaries can now only be determined as the center line of the railroad as then constructed can be ascertained. If located as contended for by the plaintiff, then the disputed ground was embraced in the release, and the right to the same is npw in the plaintiff. The plaintiff offered in support of its contention nothing except the deed of release, and the testimony of its engineer, who testified simply as an expert from data obtained in the office of the plaintiff’s company in Philadelphia, and the information which he derived upon inquiry of others supposed from long residence to be familiar with conditions as they had existed. The draft which he exhibited he had prepared from the data obtained from the office of the railroad company; the information he gained upon inquiry he applied only by way of corroboration of the results reached from the former. These data consisted of what was claimed to be the original right of way plan of the companjq and field notes in connection therewith, together with a stationing plan. Notwithstanding the fact that the company’s track had been more or less shifted, it was contended by the plaintiff, and the contention was supported by the witness, that the original center line contemplated in the deed of release could, with help derived from these plans and notes, be definitively and accurately determined. The witness had not himself assisted in the original location of the road, having been in the plaintiff’s employ only during the last four or five years. The authenticity of the plans and notes was not admitted by the ‘defendant, but the witness was allowed to state his conclusions therefrom. His testimony was persuasive to the mind of the court; and in the general charge it is thus referred to: “ This evidence, of course, if believed, would establish that this defendant unfortunately is on the railroad property; and in order that the jury could find against this evidence, there ought to be something which would warrant such a finding.” A verdict for the plaintiff was directed.

The case calls for no expression from us as to the strength of defendant’s case. He and those under whom he claimed, had been in the exclusive occupancy of the disputed strip since 1869, when the deed and release were executed. Permanent structures had been built on the premises, the defendant at the time of suit maintaining thereon a large brick bakery which he had erected in 1898. If the plaintiff was entitled to recover it was because its own title had been established. Whether it had been established depended entirely 'upon the sufficiency and accuracy of the data employed by the witness, the engineer, Panning, in determining where the center line of the company’s track was at the time of the making of the release, and the accuracy of the result he reached. It is not for us to question either ; no more was it for the learned judge of the court below to determine their conclusiveness; that could only be done by the jury. It was not a question whether the defendant had offered anything against the testimony of this witness. The learned judge did not exceed the limits of judicial privilege when he instructed the jury in his general charge, that in order to find contrary to this evidence there ought to be something which would warrant such finding; but in directing the jury to find a verdict for the plaintiff in accordance with this evidence, and upon it alone, he was exercising a function that belonged exclusively to the jury. The burden was on the plaintiff to establish its title to the land in dispute, and this could only be done by evidence satisfactory and convincing to the jury. Whether it was satisfactory and convincing to them, they only could say. The evidence was wholly oral, and this of itself necessarily drew the case to the jury. “ However clear and indisputable may be the proof, when it depends upon oral testimony, it is nevertheless the province of the jury to decide under instructions from the court as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of evidence: ” Reel v. Elder, 62 Pa. 308. The assignment of error which relates to this action of the court must be sustained.

It is only necessary to say with respect to the remaining assignments, that the doctrine of estoppel is without application here. No error was therefore committed in striking from the record the testimony as to the declarations made and directions given by certain of the officers — in this case subordinates — of the railroad company with respect to the extent of the right of way and the occupancy of the disputed ground. None of these parties could have given away or conveyed any part of the company’s property; and what could not pass by their direct act, could not pass by way of estoppel through their conduct: Pennsylvania Railroad Company’s Appeal, 80 Pa. 265.

We see no error in the record except as above indicated ; but for this the case must go back.

Judgment reversed and venire facias de novo awarded.