author: Grey, Y. C.

text:
    The Inhabitants of the Township of Palmyra v. Pennsylvania Railroad Company.
    [Filed October 28th, 1901.]
    The statute of March 16th, 1898 (P. L. of 1898 p. 110), authorizes the governing body of a township, when it shall be of opinion that gates, &e., should be erected at a specified grade crossing of a highway, to pass an ordinance directing an application by petition to this court for a summary inquiry to decide whether a flagman or gates and bars, &c., should be provided by the railroad company at that particular crossing for the security of human life, &c. Such an ordinance has been passed, petition filed and hearing had, as to the Pennsylvania Railroad Company’s crossing of Cinnaminson avenue in the township of Palmyra. On the inquiry it is found as a fact that the railroad company has so located its station-house building that Cinnaminson avenue crossing has been made additionally dangerous. On this showing of the fact it is—Held, (1) that the statute of March 16th, 1898, is not an impairment of any contractual right vested in the Camden and Amboy Railroad Company by its charter (P. L. of 1880 p. SS.), under which the Pennsylvania Railroad Company is operating by lease; (2) the statute of March 16th, 1898, does not confer upon this court the exercise of a power which properly belongs to the legislative department of the government of this state, and is not obnoxious to article 3, section 1, of the constitution of this state; (3) the powers conferred upon this court by the statute of 1898 do not intrude upon those which inherently belong to the supreme court of this state; (4) the authority given by the statute of 1898 to this court is consistent with its general equity jurisdiction and accords with its modes of procedure, and in the case under consideration may rightfully be exercised.
    This is a petition filed by the township committee of Palmyra township, Burlington county, praying that the Pennsylvania Railroad Company may be ordered to erect gates to protect travel across its tracks at Oinnaminson avenue in that township.
    The application is made under the law of March 16th, 1898 (see P. L. of 1898 p. 110), which authorizes the governing body of any township, when it shall be of opinion that it is necessary for the security of human life, or the protection of the public, that gates should be erected across a public road where it is crossed by a railroad track at grade, or that a flagman should be there stationed to give notice of approaching trains, or that some other reasonable provision for protecting such crossing should be adopted, to pass an ordinance authorizing and directing application'to be made by petition to this court for such order as it may deem necessary in the premises. The statute directs this court, after notice given to the railroad company, to proceed in a summary way to investigate the circumstances of the case and to decide whether such protection is necessary, and to make an order that a flagman, or gates and bars, or some other reasonable provision for protecting such crossing should be adopted by such railroad company. The railroad company is directed to comply with such order, and compliance may be enforced by the appropriate process of this court. The court shall decide what, if any portion, of the expense of establishing gates and maintaining a flagman shall be borne by the municipality.
    The township of Palmyra adopted such an ordinance and has filed its petition by its township committee, alleging that the village of Palmyra has a population of two thousand three hundred ; that the tracks of the Amboy division of the Pennsylvania Railroad Company run through it for six thousand two hundred and seventy-one feet; that all the village streets cross the tracks at grade, and none are protected by gate or flagman; that Cinnaminson avenue is the principal street of the village, and crosses the railroad right of way, west of its station; that stores, buildings and improvements are located on both sides of the tracks; that large numbers of teams and people are compelled to, and do, cross the tracks at Cinnaminson avenue; that the railroad company runs four express trains and great numbers of freight trains which do not stop at Palmyra; that a grove of trees, and the railroad station itself, obstruct the view of persons about to cross the tracks; that the petitioner is of opinion that it is necessary for the security of human life and the protection of the public that gates should be erected across Cinnaminson avénue at the railroad crossing, or that a flagman should be there stationed to give notice of approaching trains, or that some other reasonable protection should there be provided; and prayer is made for an investigation of the circumstances of the case and for an order accordingly.
    Upon the filing of this petition an order to show cause was made for a hearing by oral proof in a summary way.
    The railroad company filed an answer to the petition admitting the frequent running of its trains over the crossing at Cinnaminson avenue, but alleging that as to those express passenger trains which did not stop at Palmyra, it caused its agent there “to flag the crossing over Cinnaminson avenue during the time said trains pass over said crossing;” that the non-stopping freight trains principally run at night. It denies that at Cinnaminson avenue there is no protection. Alleges that, because of a wide street beside the right of way, a clear and unobstructed view up and down the railroad can be obtained of approaching trains; that the crossing in nowise endangers human life and needs no additional protection for the public than is afforded by the law requiring the giving of the statutory signals on approaching a crossing.
    The' railroad company’s answer further refers to the charter granted to the Camden and Amboy Railroad Company in 1830 (P. L. of 1880 p. 8), under which, and subsequent consolidations and leases, it is now operating its railroad, and sets up the privilege given under that act to cross, at grade, streets along its route, and avers that Cinnaminson avenue is one of the streets so crossed by its railroad tracks, and that a passage has been there constructed and maintained over said street as required by said charter; that the legislature has prescribed certain precautions in approaching grade crossings as to blowing whistles and ringing a bell, which its trains have alwaj's observed on approaching Cinnaminson avenue.
    The railroad company, before the hearing, amended its answer by averring that it had always discharged its legal obligations in the premises; that if there is in fact any unusual danger at the Cinnaminson crossing, it was not occasioned by any act done in the location and construction of the railroad, its buildings or works, and that such unusual danger is chargeable wholly to the subsequent growth and building up of that locality.
    The company insists that under such circumstances no further obligation rests upon it than the statutory blowing of a whistle and the ringing of a bell, and that such is the true construction of the act of March 16th, 1898; that any other construction of that statute would be an assumption by this court to
    “exercise a function not judicial but legislative in its nature and obnoxious to article 3 of the constitution of this state, incapable of being conferred upon or exercised by this honorable court, or by any person belonging to the judicial department of the government of this state; that said statute to that extent would be and is unconstitutional and void, and the railroad company asks the same benefit as if it had demurred to the application of the township of Palmyra.”
    The matter was subsequently heard upon oral examination and cross-examination of witnesses and the exhibition of proven maps and photographs of the locus in quo.

      Mr. Thomas 1U. French, for the petitioner.

      Mr. Joseph H. Gaslcill and Mr. Alan II. Strong, for the respondents.
   Grey, Y. C.

The proofs taken in the summary hearing of this matter show the circumstances at the Cinnaminson crossing at Palmyra to be as follows: The railroad of the defendant company crosses Cinnaminson avenue at grade; there is no other laid-out road which crosses the railroad in the village, nor at any nearer point than one-lialf to three-quarters of a mile. There are places where people do cross at several points, but none of them are recognized as laid-out crossings. The testimony is that there is a population of about three thousand in the village, the bulk of which, probably two-thirds, reside on the north or river side of the railroad. A considerable part of the population, about one-third, resides on the south side of the railroad. On that side are several stores, the town hall, public school-house and other buildings. The local travel across the railroad tracks is considerable. Children going to and from school cross in great numbers.

In addition to this crossing by the local residents, is the highway travel from the surrounding country. Cinnaminson avenue is a stone road, connecting with several other roads, over which many wagons travel to and from Camden. The neighboring country is what is known as a “trucking” district, and supplies the Philadelphia market, by wagons carrying vegetables and fruits, many of which pass along Cinnaminson avenue and cross the railroad at grade. Within a few years the railroad company erected a new station-house at the northeast corner of Cinnaminson avenue and South Broad street, parallel with and adjoining its westbound tracks. This station-house is about sixty feet long, one story high, the peak of the roof being about twenty feet from the ground. The station-house proper is surrounded by a roofed platform. At the southwest corner of Cinnaminson avenue, but apparently off the railroad property, is a grove of large trees, standing some twenty or thirty feet apart, nearly up to the street line. The railroad company has a railing or fence on the south side of its tracks, on its right of way, on each side of Cinnaminson avenue and parallel to it, obviously put there to compel passers on that avenue to stay on the avenue in crossing the railroad tracks.

In the month of April an observation, taken for six days, showed an average of eleven hundred per day of wagons, bicycles and people crossing the railroad at Cinnaminson avenue between six o’clock in the morning and six at night. The testimony of the assistant trainmaster is that there is an average of sixty trains in every twenty-four hours which cross Cinnaminson avenue. Five express passenger trains, all in the daytime,1 scheduled at a speed oí forty miles an hour, run by Palmyra without stopping. The other passenger trains, which stop at Palmyra, run at a speed of about twenty miles per hour. The extra freight trains run at fifteen miles and the other freight trains at ten miles an hour.

An examination of the accompanying reduced copy of plan offered in evidence will show the location of the station-house and platforms and their relation to Cinnaminson avenue and Broad street.

It will be noted from the diagram that the station itself is an obstruction to the view of persons coming south along Cinnaminson avenue, when they arrive at its intersection with Broad street, 'in looking for trains approaching from the east, traveling on the westbound track. Several witnesses testified to the fact, and the physical conditions support their testimony. The defendant company’s surveyor stated that, from this point of view, a train coming from the east, on the westbound track, could not be seen until the passer on Cinnaminson avenue had gone far enough to clear the obstruction interposed by the station and its surroundings. In describing the approach of such a train from the east (that is, a westbound train) and the station as an obstruction of the sight of it by a person passing south along Cinnaminson avenue, the same witness testified that “the train would be almost on top of you before you did see it, there is so much there.”

These facts indicate the extent of the danger to the public at Cinnaminson avenue crossing. It is undisputed that there are no safeguards at that crossing, save that when express trains go by the station agent comes out and protects the crossing with a flag. For all other protection the crossers of the tracks are dependent upon the blowing of the whistle and the ringing of the bell.

The defendant company insists that it is not within the'true intent and meaning of the statute of March 16th, 1898, that other safeguards than the use of the whistle and the bell should be required at any crossing,

“except in cases where there is an obligation or duty imposed to provide such additional protection by reason of the location or construction by such railroad company of its tracks, buildings or works.”

I do not accept this view of the effect of that statute, but, if it be admitted to have the construction stated, the evidence of the defendant company’s surveyor shows that the station which ■stops the view of the tracks was- recently constructed by the defendant company; that the centre line of Broad street, just before it intersects Cinnaminson avenue, was changed to put the .station there, and when that witness testified that a passer on Cinnaminson avenue, at its intersection with Broad street, would have a train approaching from the east almost on top of him before he could see it, because “there is so much there,” the “so much” which he referred to is the station, which the defendant company has so located that a train approaching from the east is obscured until almost on top of a passer on the highway (Cinnaminson avenue). The “station and its surroundings,” which the same witness said the passer on Cinnaminson avenue would have to clear, in order to see the trains, are the defendant company’s buildings, located and erected by it. Other witnesses and the lay of the ground show this to be the actual situation at that crossing.

The diagram indicates the locality where, to one passing southwardly along Cinnaminson avenue, a train coming from the east, on the westbound track, is, for a considerable distance, obscured from view. The line of arrows at the intersection of Cinnaminson avenue and Broad street marks the line of obscuration, which continues until the passer on Cinnaminson avenue is almost upon the westbound track.

It therefore appears that, becausé of the location by the railroad company of its own buildings, there is an increase of the danger at the crossing under consideration, and a corresponding duty is cast upon the railroad company to furnish additional safeguards to the public at that pla'ce.

The order of the company that the station agent shall flag the five express trains which do not stop at Palmyra, affords, of course, no protection against the fifty-five other trains which pass over the tracks of the defendant company at Cinnaminson crossing.

The detailed circumstances attending the situation in Palmyra, at the railroad grade crossing of Cinnaminson avenue, are certainly such that, in the words of the statute of 1898, it is reasonably necessary, for the security of human life and the protection of the public, that gates or bars should be there erected or maintained.

The railroad company, however, not only denies that the existing conditions at the locus in quo require additional precautions for the safety of the public, but, by virtue of the charter of the Camelen and Amboy Eailroad Company, under which it' is operating the railroad which crosses Cinnaminson avenue, it claims a right to cross highways along its route, at grade, at a high rate of speed, upon constructing passages across its railroad, “so that the passage of carriages, horses and cattle' shall not be prevented, thereby.” See P. L. of 1830 p. 88 % 15.

It is insisted in argument for the defendant company that these provisions of the original railroad charter have been observed and that they give some contractual rights to the railroad company, which have been intruded upon by the statute of 1898.

If it be true that the original charter gives to the Camden and Amboy Railroad Company, and its successors, the right to construct a railway across public highways and imposes only a duty to build passages across the railway for horses and carriages, which once performed need not be changed, then not only the act of 1898 but the statutory provisions requiring blowing a whistle and ringing a bell, must also be held to be unconstitutional impairments of the original contract, for both those requirements were imposed by subsequent enactments. The ringing of the bell was required by the act of March 9th, 1839, and the blowing of the whistle by the act of March 26th, 1852. See 1 Nix. Dig. p. 680.

The effect of this requirement to build passages across public highways has been declared by our courts. The same provision, word for word, as that contained in section 15 of the Camden and Amboy railroad charter, occurs in the charter of the Central railroad of New Jersey. P. L. of 1847 p. 133. This section was constructed by the supreme court m the case of Central Railroad Co. v. State, 3 Vr. 224, and the construction given entirely refutes the idea that a “once for all” construction of such railroad crossings is a compliance with the charter requirements. It was there held that the obligation to provide that horses and carriages might have safe passage across the railroad, was “a continuing duty to which the company is made subject, which in its performance must be measured by circumstances. Thus a bridge or passageway, which at one time would be adequate to the public accommodation, might at a subsequent period from an increase of business or population, be totally inadequate, and consequently a provision wbicb at one juncture would be a discharge of the duty, would at another almost amount to an infraction.” The court also recognized the increase of the railroad’s business and the consequent danger to the public, rendering the street impassable, as imposing on the railroad company an obligation to provide additional conveniences for safe crossing and summed up the definition of the company’s duty by the declaration: “The duty prescribed is to keep at all times, and under all circumstances, the public highways at the point where they cross the railroad in a condition fit for safe and convenient use.”

This construction of the obligation imposed by the section under consideration has never been challenged, and has been followed in this court in Jersey City v. Central Railroad Co., 13 Stew. Eq. 420, and in Township of Raritan v. Port Reading Railroad Co., 4 Dick. Ch. Rep. 15. In Clark v. Elizabeth, 32 Vr. 575, the court of errors discussed the line of cases expository of the section in question, and approved this declaration of the duties of railroad companies at highway crossings where the question presented involved the rights of the public.

It seems to be quite clear that under the section in question, the duty of the railroad company to provide safe and efficient crossings for the public passage is a continuing one, varying at each crossing as circumstances at that place may vary. Either growth of population and business in the neighborhood of a crossing or the passage of large railroad traffic over its tracks where the highway crosses it, is a circumstance which will oblige the railroad company to provide additional safeguards. The defendant company cannot, under the provisions in the Camden and Amboy Railroad Company charter requiring it to provide passage across its tracks, maintain that such crossings were arranged once for all, thus relieving that company from all further duty in that matter.

The Pennsylvania Railroad Company further contests the constitutionality of the statute of 1898, under which the order of this court is sought. It contends that in attempting to confer upon this court the power to inquire into and determine whether such danger exists at a particular railroad grade crossing of a highway, as to be detrimental to the public safety, and to direct the railroad company to place there certain additional safeguards, if found necessary, the legislature has exceeded its authority and has imposed upon the judicial department of the government the exercise of a power that properly belongs to the legislative ■department, and that this statute is therefore obnoxious to article 3, section 1, of the constitution of this state.

The constitution, while requiring that the three great departments of government shall act separately, does not define, with any precision, where the limits of the functions peculiar to either begin or end. Many of these are so simple in their character as to be recognized as of course. Others are quite complex in their •operation, and involve the doing of acts by one of these great departments which appear to be intrusions, to some extent at least, upon the domain of the others. It is almost impossible, in the conduct of government, to observe a precise and exact separation of these functions. This difficulty was recognized and dealt with by the court of errors and appeals, in the case of Paul v. Gloucester, 21 Vr. 611. That court there declared that the clause of the constitution under consideration operates prohibitively only when it relates to those powers which, by the constitution itself are assigned to, or which, in their nature, pertain to, one of the three great departments exclusively. The court cites numerous instances showing that, in the usual and accepted conduct of government, powers which are not expressly or inherently related to any one department have always been exercised by that one of them to which they are, by law, referred. The court declares that “the conclusion is inevitable that this multitude of duties was regarded as lying outside of what were termed the powers properly belonging to the executive, legislative and judicial departments, and was left, by the constitution, to be discharged in such mode as the law should provide.

Dpon this question of the relation of the powers of government there are several decisions which, at first glance, appear to be favorable to the contention of the defendant company. The cases of Pennsylvania Railroad Co. v. Matthews, 7 Vr. 531, and New York Railroad Co. v. Leaman, 25 Vr. 202 (Court of Errors), declare that it is the function of'the legislature to prescribe the character of the safeguards which railroad companies shall provide at highway crossings, and that, if additional protection is necessaiy, the requirement therefor “must proceed from the legislative, and not from the judicial, power.” Matthews Case, 7 Vr. 534.

The court in these eases had under consideration the adoption, by the legislature, of general rules applicable, as a matter of general state policy, to the crossing of all highways by railroad tracks. Neither of the eases cited discusses or refers to the duty specially imposed upon the railroad company by its own charter.

Such general legislative regulations could not possibly provide for the special emergencies arising at particular crossings, calling for appliances to make each crossing safe which are peculiar to that spot. In some cases one method would fitly afford relief, in other cases another.

Remedies for these exigencies must be provided. The functions to be exercised in providing them cannot be deemed to be legislative. The legislature has no means of investigating and determining the questions which these conditions raise, or of directing the installing of the additional safeguard which each particular crossing may require, because of its own peculiarities. If it attempted to hear and determine disputes between municipalities and railroad companies as to their respective rights and duties at each particular crossing, the parties must be noticed, a hearing .must be had, evidence must be produced and its admissibility ruled upon, argument must be heard and considered, and a judgment must be pronounced.

These incidents are inherently necessary to the accomplishment of the desired result—i. e., the ascertainment whether, at a particular crossing, it is the duty of a particular railroad company to provide additional safeguards, because of the situation of affairs there existing. Such a procedure by the legislative department, in any mode cf its action, would certainly go much further to intrude upon powers properly belonging to the judicial department than the exercise of the powers conferred by the statute of March 16th, 1898, upon this court, would be an intrusion upon the legislative field.

There is also some difficulty in following the line of cases beginning with the Matthews Case, when the matter in hand does not precisely tit the precedent. Those cases declare that the defining of the safeguards which shall give notice of the approach of trains to highway crossings is a matter of legislative, and not of judicial, power. It will, however, be found, upon examination, that those judgments themselves, by judicial decision alone, and without any legislative action whatever, not only declare that the ringing of the bell and the blowing of the whistle are the limits of the railroad company’s obligation at railroad crossings, in the matter of providing safeguards, but they also, by judicial determination, without any statutory enactment, declare that, in case the railroad company increases the danger at a crossing, it thus becomes bound to provide extra safeguards.

Neither the statute of 1839, which originally required the ringing of the bell, nor that of 1852, which required both the bell and the whistle, declared that the doing of these acts freed the railroad companies from all further obligation to provide safe passage at highway crossings, nor has any other statute declared such a freedom. The declaration that it exists is purely judicial, appearing, for the first time, so far as I have been able to discover, in 1873, by the decision in the Matthews Case. The exception to this rule of freedom from liability, on ringing the bell and blowing the whistle, by which, “when the railroad company has created extra danger, it is bound to use extra precautions,” is not declared in any statute. It is purely judicial in its origin, and had its beginning in the same Matthews Case, as may be plainly seen on reading that decision. In that case a verdict was sustained on the express ground that this judicially ascertained and declared railroad obligation to furnish additional safeguards (the company having created extra danger) had not been performed.

The Matthews Case itself (which was followed in the Leaman Case) thus appears to have defined the limits of railroad responsibility at railroad crossings, and to have declared a contingency in which additional safeguards at crossings must be provided by railroad companies. All this by judicial decision onty, and without any legislative action whatever. If the judicial department may thus ascertain and fix the duties of railroad companies as to safeguards at crossings, and declare contingencies in which the companies shall furnish additional safeguards, it is very difficult to discover the line where the judicial capacity ceases and legislative authority takes exclusive possession of the field.

The decisions in the Matthews and Leaman Gases (if they are held applicable to this suit by a immicipality to secure a safer railroad crossing) conflict with the above-cited line of cases, following State v. Central Railroad Co., which declares that the duty of that railroad company, under the express provisions of its charter to provide safe passages, is continuous, varying according to the amount of traffic and travel at each particular 'crossing. The duty of the defendant company in this suit must be the same. See P. L. of 1830 p. 88 § 15. These decisions also recognize, as a factor which imposes an obligation on the railroad company to furnish additional safeguards, the increase of population and business in the locality, whereby a bridge or passageway already provided by the railroad company may have become inadequate. These incidents, surrounding population and large travel over the highway crossing the railroad, are, by the Matthews Case, excluded from consideration as operating to charge the railroad company to provide added safeguards. According to that case, the additional duty can only be created by the misconduct of the railroad itself. Increase of population and of business on the highway at a crossing are not chargeable as misconduct of a railroad company.

The court of errors and appeals, in Clark v. Elizabeth, 32 Vr. 575, in discussing the construction of the charter provision regarding crossings in State v. Central Railroad Co. and other like decisions, recognized, as is above mentioned, a distinction between actions where the interests of the general public at crossings were involved and those which asserted the rights of an individual whose property was injured. Both the Matthews and the Leaman Cases, declaring the doctrine of freedom from liability on giving the statutory signals (unless the railroad company has increased the danger), were actions by individuals for damage for injuries to property.

The case now in hand is an effort by the municipality to compel the railroad company to provide at a particular crossing, for the benefit of the public in general, safeguards in addition to the whistle and the bell. If the distinction recognized by the court of errors in Clark v. Elizabeth, supra (which arose on a claim by an individual for injuries to his lands), is applicable to this case, it would remove it from the operation of the rules laid down in the Matthews and Leaman Cases, which were suits by individuals for damages for injuries to personal property.

It is not, however, necessary for the decision of this cause, that these apparently conflicting declarations should be reconciled. All the cases which discuss the relations of railroad companies to highway crossings from any point of view agree that where the conduct of the company has increased the danger at any particular highway crossing, this of itself charges the company with a duty to provide additional safeguards at that crossing which shall afford protection commensurate with the increased danger.

The counsel for the defendant company frankly concede this to be the law of this state.

The evidence taken in this matter, above reviewed, proves that at the Cinnaminson avenue crossing there has been, by the acts of the railroad company itself, an increase of danger to those who use that highway. This condition imposes upon the railroad company an obligation to provide additional safeguards to protect the public traveling that highway. The function of this court, under the act of 1898, is not to create this duty by its decree, as is contended by defendant’s counsel. What this court does is to inquire whether it exists, and if it so finds to enforce it, just as it might specifically enforce any other obligation where that is the appropriate relief. Upon the theory of all the decisions this duty has existed ever since the railroad company brought the unfavorable conditions at the crossing into being. This court, in proceedings under this statute, exercises no legislative function in the matter, all its action is purely judicial.

The defendant further contends that if the statute of 1898 is not an interference with legislative functions, it is still unconstitutional in that it seeks to confer upon this court a power which inherently belongs to the supreme court, exercisable by the writ of mandamus.

In the statute under consideration the procedure contemplated by this court is an inquiry whether the duty to provide an additional safeguard at that crossing exists, and if it be found that it does, to adjudge which remedy is applicable most effectually to fulfill it. The statute affords the railroad company an opportunity to contest, as a disputable fact on the hearing in this court, the existence of the duty to provide additional safeguards at the particular crossing in question, and requires this court to decide which particular safeguard is most efficient to relieve against danger at that crossing. While this proceeding is in many respects analogous to the specific enforcement of contracts (a familiar field of equity jurisdiction), wherein the existence of the obligation is triable and its enforcement in the most efficient manner is within the scope of the decree, it is repugnant to the characteristics of a mandamus proceeding in the law courts, for in the latter procedure the applicant must show in the first instance a pre-existing clear legal right to have the thing which he asks done in the manner sought to be enforced. High Extr. Rem. 13 § 9, and cases there cited. No mandamus would be allowed to try the question of the existence of the duty sought to be enforced by that writ, nor would that mode of procedure enable a decision to be made, determining as this statute contemplates, which of several safeguards will most perfectly protect the crossing. The statute cannot be held to be unconstitutional because it intrudes upon the inherent constitutional powers of the supreme court.

That the jurisdiction of this court may rightfully be invoked by a municipality to protect the highways from a railroad company’s wrongful exercise of its admitted rights at a crossing was unanimously held by the court of appeals in the case of Easton and Amboy Railroad Co. v. Greenwich, 10 C. E. Gr. 565.

There is another ground of equity jurisdiction under which the powers, conferred upon this court by the statute of 1898, may be well exfercised. This is the regulation of the enjoyment by two or more persons of several easements in common property. This was luminously expounded by the late Chief-Justice Beasley, sitting in this court for the chancellor, in Delaware, Lackawanna and Western Railroad Co. v. Erie Railroad Co., 6 C. E. Gr. 304. He there says: “In the case before me the parties possess a community of interest in their property. They are tenants in common of an easement, and if this court cannot protect the one against the injustice of the other, the party whose rights are invaded is clearly without any adequate remedy. The general cognizance of equity in cases, of this kind, where property is enjoyed in common, will not, it is presumed, be disputed by anyone.” This exposition of the jurisdiction of this court was approved by the court of appeals, and it was there declared that it might be invoked in cases where conflicts arise between railroad companies in the use of a crossing. National Docks Railroad Co. v. Central Railroad Co., 5 Stew. Eq. 767. The same ruling was approved by the court of appeals in National Docks Railroad Co. v. United New Jersey Railroad Co., 24 Vr. 224 The principle is the same where a dispute arises between a railroad company and a municipality as to their respective use of a highway crossing the railway.

Municipal authorities being charged with the duty of keeping the highways fit for safe and convenient passage, this court has always maintained their right to its aid to restrain wrongful' acts by railroad companies at crossings (City of Newark v. Delaware, Lackawanna and Western Railroad Co., 15 Stew. Eq. 196), or longitudinally (City of Burlington v. Pennsylvania Railroad Co., 11 Dick. Ch. Rep. 260). The same principle was unanimously declared by the court of appeals in Township of Greenwich v. Easton and Amboy Railroad Co., ubi supra.

The jurisdiction conferred by the statute of 1898 upon this court accords with its modes of procedure and is consistent with' its general equity powers. On this application that statute may be given its more limited effect, authorizing an inquiry to ascertain, whether at Cinnaminson avenue the defendant company has so dealt with the highway that it has increased the danger at the crossing, thereby incurring a duty to provide additional safeguards. This court takes cognizance of the present matter to ascertain whether such a duty is owing by the defendant company, because of its own conduct, and to determine which of the safeguards named in the statute should be provided.

Hpon the case presented there is a sufficient showing that there is such a condition of danger at Cinnaminson avenue crossing named in the petition, occasioned by the acts of the defendant company; that it is reasonable and necessary for the security of human life and for the protection of the public that additional protection should be there provided.

In view of the evidence that a large number of pedestrians and also horses and carriages go over that crossing, the most effective mode of protecting life and property there appears to be the adjustable bars referred to in the testimony, which not only serve as a warning to pedestrians but also as a check to passing teams of horses and carriages. They may be raised and lowered as occasion may require, and appear to afford the most protection to, with the least obstruction of, the highway.

The evidence shows that the occasion for this additional safeguard is the act of the defendant company in so locating its station that it obscures, from one point of view, the sight of approaching trains. Under such circumstances the expense of establishing and maintaining'the additional protection required should be borne by the defendant company.

I will advise an order according to the views above expressed.


source: Caselaw Access Project

license: Public Domain

text:
    Timothy W. Ashby et al. v. Amos K. Ashby.
    [Filed November 7th, 1901.]
    1. Where one is guilty of a -contempt of court by removing fixtures from a mill of which he is in possession, while under an injunction restraining such removal, and it appears that an order of restoration of the removed equipment would be an ineffectual remedy because the removed equipment has to some extent been injured, and in some instances destroyed, the party in contempt, in addition to a restoration, must meet any expenditure of money required to remedy the wrong done.

      2. Where one commits a contempt of court by removing fixtures from a mill of which he is in possession, while under an injunction forbidding such removal, he will not only be compelled to restore the fixtures and make reparation for damage done to the injured party, but a punishment will be imposed because of the offence to the dignity of the court, and the punishment to be inflicted for the offence to its dignity will depend on the conduct of defendant in regard to the reparation for the injury.
    On bill, &e. On petition for attachment for contempt.

      Mr. Clarence T. Atlcinson, for the complainants.

      Mr. David J. Pancoast, for the defendant.
   Grey, Y. C.

(orally).

This is a proceeding by petition to punish the defendant, Amos K. Ashby, for an alleged contempt of the decree and injunction served upon him in this case. Not only the counsel but the parties are here in court, and an expression of the court’s views in the presence of the parties may aid in the settlement of the matter. The previous course of procedure was that a bill o'f complaint was filed in this court alleging that Amos K. Ashby claimed ownership of the fixtures in the mill called the Delaware Avenue Mill, situated at Burlington, New Jersey, and that he gave out in speech and declared his purpose to remove those articles. The articles named were “three roller mills, one purifier, smut mill, separators, two buhr mills, flour packer, and all the belting and other fixtures in said mill.” The bill also prays that he may be restrained from committing any waste upon the mill premises. The defendant, Amos K. Ashby, by answer, asserted his title to the disputed fixtures.. There followed a very severe litigation resulting in an adjudication in favor of the complainant, restraining the defendant, Amos K. Ashby, from removing the named articles and the belting and other fixtures in the mill, and from committing any waste. That injunction was admittedly served upon him on the 8th day of August, 1900. The executors of Edward Ashby’s will, who are named in the bill of complaint as having a power of sale, after the decree was-made, sold the mill. The purchaser was David G. Ashby, a brother of the defendant, Amos K. Ashby. The purchase was made about August 8th, 1900, and there was a delay of a week or two in delivering the deed. When David G. Ashby received it, possession was not delivered by Amos, and an action of ejectment appears to have been brought against him, which has been adverted to here in the testimony, resulting in a judgment for the plaintiff, David G. Ashby, who was put in possession of the mill in February of the present year, 1901. He then found that the mill had been denuded of a very considerable part of its equipment. These facts are not denied by anybody. The petition now in hearing was then filed by David G. Ashby, one of the parties in the original suit against Amos K. Ashby, asking that the latter be attached for contempt for removing the following-named parts of the equipment of the mill:

“Belting on roll No. 1070, main belt on engine, belt on flour packer, grain conveyer belt, belt running from main shaft in third story, belting on roll elevators, on grain elevators, on separators, a wheat heater, main grain elevators, set of big scales, which were set in floor; also small scales, flour packer tubes, 3 pulleys, also an awning attached to said premises.”

The proof is substantially without dispute that all of the articles there named were in the mill, and remained in the mill up to the time of the purchase by David G. Ashby, the petitioner, in August after the service of the writ of injunction. The proof is also substantially without dispute that Amos K. Ashby had built a new mill foreseeing his removal from the old one, and that, after the'judgment in ejectment against him, he had moved his business from the old mill to his new mill and took with him almost all the articles named in the petition. I am not prepared to say that the testimony satisfies me that this removal of the fixtures was intendedly in contempt of the court, in the sense that the defendant conceived a purpose to insult the court and carried it into action by open defiance of its decree, but the evidence does indicate that he contemned the court in this: Having full knowledge of its order that he should not remove the equipment of the mill, he disobeyed it. His motive is of minor significance. My impression from the evidence is that he removed the articles named in order that his successor, when he got possession of the mill, might be put to serious inconvenience, annoyance and loss in running it, and thus be less likely to be a dangerous competitor with himself. This is indicated by the fact that he took from the mill almost everything which went to make it immediately usable. He did not take one or two articles of the equipment of the mill, about which there might be a doubt whether they were within the injunction, but he took the main belting which runs around the fly-wheel, without which no motion whatever could be communicated to any of the machinery; he put in its place an inferior article, and put the removed one to use in his new mill; he took the belt off the flour packer and also the belt running from the main shaft to the third story, the belt on the grain elevator and on the separator and on the roll elevator. The belting ivas expressly mentioned in the injunction served upon the defendant, and its removal was prohibited. That'he took'this belting is not only proven, but is not denied even by himself. The effect of its removal was for the time to dismantle the mill. The evidence also shows that he removed a wheat heater (one of the machines used for the purpose of preparing the wheat for grinding) out of its place. He swears that he left this on the premises, but he took it out of its place and disconnected it in disobedience of the injunction, whether he left it on the premises or not. The manner of the defendant on the witness-stand, and the testimony with relation to his conduct, leads me to doubt whether that machine is in the same condition in which it was at the timé when the injunction was served. The proof is that he removed the main 'grain elevator from the position in which it was at the time the injunction was served, and changed it materially; whether he seriously injured it, I am unable to say from the testimony, because it was not sufficiently clear in detail. He removed the scales which were built into the floor, and quite recently, by his own postal card, has offered to restore them. He removed the smaller flour packing tubes, which I am entirely satisfied were part of the equipment of the flour packer, necessary to its use. He says he did not remove the large barrel packer tube. The evidence shows that the packer was equipped with several sizes of packing tubes, and that they are necessary to enable it to pack not only barrels but bags in smaller quantities. He also removed an awning, and recognizing Ms wrongdoing in tliis, attempted to right this matter by lately putting up a new one, probably by the advice of counsel. The only articles named as removed in the petition as to which the evidence is insufficient to show removal are the small scales and the three pullej's.

The proof conclusively shows that the defendant is in contempt of the decree of this court, and for this he must answer.

A proceeding for contempt of this character has two phases, and the order of the court thereon must have two considerations, one of which is full redress to the party injured. He is entitled to full restoration, and if expenditure of money be required to procure that restoration, the party who did the wrong must meet it. Another aspect of the case is the assertion of the dignity of the court. This will be accomplished by imposing upon the defendant such proper punishment as will teach him that he is bound to recognize the law of the land in which he lives, upon which he depends for his own safety and for the protection of his property.

As to that branch of the case which looks to this remedy to restore the party injured to his former place, the testimony shows that the acts of the defendant have not only removed equipment of the mill against the prohibition of the injunction, but it appears quite plainly that in making the removals injury has been done to the things removed, belting has been cut and used elsewhere than in its proper place, machines and other equipment have been disconnected, disarranged and displaced, parts have been taken away and in some cases substitution has been attempted. An order for mere restoration of the removed equipment to the places it occupied at the time the writ was served would not be an effectual remedy, for the removed equipment has by the act of removal been injured and in some instances destroyed. Justice can only be done by ascertaining the extent of these injuries, for the petitioner’s remedy must be had in this court on this proceeding or he is remediless. • The wrongs were doire while the defendant himself was in possession of the premises.

The evidence before me, while fully sufficient to show contemptuous conduct on the part of the defendant in breach of the duty imposed upon him by the injunction, does not afford the means of finally determining what recompense he shall make in the way of restoration or satisfaction for the injuries he has done to the mill. I will therefore refer the matter to a master to ascertain and report what portion, if any, of the physical injury done to the mill by the removals may be redressed by restoration of the things removed, and what satisfaction by way of money should be paid for the residue. I find, as a fact, that all the items named in the petition, except the small scales and the three pulleys, were removed by the defendant. The master will accept this as established. He may have before him the proofs here taken, and such further testimony as either party may offer, but solely upon the matter of restoration, so far as it may be practicable, and money compensation for the residue of physical injury done in breach of the injunction. He may apply, if necessary, for further instructions.

Upon the coming in of the master’s report I will determine what shall be done because of the offence to the dignity of the court. What this shall be will depend very largely upon the conduct of the defendant in regard to the reparation of the injury which he has committed. If he earnestly tries to restore and make whole for the wrong he has done, the court will consider his penitence as an endeavor to return to right conduct. If, on the other hand, there is a manifestation of a contumacious determination to persist in his wrongdoing, the court, by imposing a proper punishment upon this defendant, will enforce respect for its decrees.


author: Grey, V. C.

text:
    The Knickerbocker Trust Company v. The Penn Cordage Company et al.
    [Filed November 14th, 1901.]
    1. A mortgage, executed both as a real estate and a chattel mortgage, was recorded only as a real estate mortgage. The mortgagee took no possession of the chattels. On foreclosure of the mortgage it will, as against the creditors of the mortgagor, be held to be void as a chattel mortgage, and to be forceful only upon the portion of the mortgaged premises which is real estate.
    2. Whether machines, &c., brought upon the mortgaged premises have, by the acts of the mortgagor, been converted into and become part of the real estate, depends upon three points: (1) actual annexation of some sort; (2) application to the uses to which that part of the realty which they are annexed has been appropriated; (3) that they were annexed with the intention that they should become a permanent accession to the freehold. Each case must be determined accordingly, as the facts proven show the existence of all these conditions.
    3. Although the proofs may show that the machines were adapted to the uses of that portion of the realty where they were placed, yet if they fail also to show actual annexation, and an intention permanently to annex them to the freehold, their conversion into real estate will not be declared.
    4. Where the machines came upon the premises as completed articles of merchandise, are fastened to the floors by adjustable attachments for the purpose of keeping them from displacement while in use by the application of the power, are in no way built or incorporated into the real estate, can be removed without injury either to themselves or to the building in which they are located, they will be held to remain personal property.
    The bill in this case is filed, to foreclose a mortgage, made by the defendant the Penn Cordage Company, a corporation of the State of New Jersey, to the Knickerbocker Trust Company, a corporation of the State of New York, to secure the payment of numerous bonds of the cordage company, amounting, in all, to $100,000, with interest, &c.
    The complainant mortgagee, the Knickerbocker. Trust Company, makes defendants the mortgagor, the Penn Cordage Company; Thomas E. Shields, receiver of the Penn Cordage Company —appointed in an insolvency suit, sub nom. Reilly v. Penn Cordage Co., in this court—and also Alexander Simpson and others, who claim to be holders of, or interested in, a second mortgage made by the Penn Cordage Company to one Constantine P. Ralli, and also the Pennsylvania Railroad Company, in respect to a judgment recovered by it .against the Penn Cordage Companjf, and Claud S. Fries, in respect to a judgment recovered by him against the Penn Cordage Company.
    • The complainant, in its bill, sets forth a description of the mortgaged premises, which consists of fifteen acres and twenty-two hundredths of an acre of land, situate at Beverly, in the county of Burlington. The bill states that the mortgage contains the following clause:
    , “Together with all the improvements thereon, or that thereafter might be erected thereon, and together with the franchises of the said the Penn Cordage Company, and all its income whatsoever, and all the goods, chattels and personal property then in the possession of the said Penn Cordage Company, in, of and about the said described premises in the town of Beverly, in the county of Burlington and State of New Jersey, and all the property, real, personal and mixed, now owned by the Penn Cordage Company, and also all the goods, chattels and personal property that may hereafter be acquired by said Penn Cordage Company.”
    The bill sets forth the execution of the complainant’s mortgage, with the formalities incident to both a real estate and a chattel mortgage, and alleges that it was recorded in the office of the clerk of Burlington county on the 10th day of April, 1896.
    The entire series of bonds secured by the complainant’s mortgage, amounting, in all, to $100,000, has been issued, and they are all now outstanding and unpaid, with considerable accumulations of interest, and, by reason of these defaults in the payment of interest and of other defaults, set forth in the bill, the principal-money of the mortgage has come to be due and payable, and the holders of the bonds, in accordance with the terms of the mortgage, have requested the complainant to foreclose it.
    The bill of complaint sets forth the making of a second mortgage to one Constantine P. Ralli, for the sum of $50,000, dated October 4th, 1897, and recorded in Burlington county clerk’s office, and subsequently assigned to the Guarantors Finance Company, which company, having become insolvent, Alexander Simpson and others were appointed receivers thereof. The bill alleges that the Guarantors Finance Company assigned the last-mentioned mortgage for $50,000 to the People’s Bank of Philadelphia, a corporation which has also been adjudged insolvent, and whereof Thomas TV. Barlow has beexx appointed receiver. The receivers of each of the above-xxamed corporations are made defendants, in respect to their several interests in the last-named mortgage. Several judgment creditors of the Penn Cordage Company are also made defendants.
    The prayer of the bill is for the foreclosure and sale of the mortgaged premises, including the personal property described in the mortgage, or covered by the general provisions of the same, or, if it be deemed more equitable and just, that the mortgaged premises, with the appurtenances, may be sold.
    Thomas E. Shields, the receiver of the defendant the Penn Cordage Company, answers the bill of complaint, substantial^ admitting the execution of the complainant’s mortgage as alleged in the bill, so far as it is a real estate mortgage, but charging that it was not executed in accordance with the statutes of this state regulating the execution of chattel mortgages, and was not recorded as a chattel mortgage, and does not cover any of the personal property which the Penn Cordage Company then owned or. which it afterwards acquired, and the receiver claims that the personal property of the Penn Cordage Company vested in him as receiver of that company, free and clear of the lien of the complainant’s mortgage.
    Mr. Shields, the receiver, in his answer, makes the same allegation with relation to the mortgage made by the Penn Cordage Company to Constantine P. Ealli, and also charges that the latter mortgage is entirely void for waxxt of consideration. He alleges that the receivers of the Guarantors Finance Company and the receiver of the People’s Bank, who had come by assigxxment to be interested in the Ealli mortgage, had filed their claim uxxdcr it with the receiver in the insolvency suit of Reilly v. Penn Cordage Company; that their claims were disallowed by the receiver; that appeals from the disallowance have been taken which are yet unheard, and he claims that the disallowance stands unreversed, and the said mortgage and bond accompanying the same are invalid. The defendant Shields further alleges his appointment as receiver of the Penn Cordage Company on December 7th,. 1897, and that a number of the defendants named in the complainant’s bill in this case as judgment creditors recovered their judgments after his appointment, and he insists that no judgment against the Penn Cordage Company is forceful against his title as receiver of that-company, to have its personal property, unless execution had been issued under such judgment .and actually levied against such, personal property prior to the ■appointment of said receiver. The receiver further sets forth his inventory of such, property of the Penn Cordage Company as he has determined was personal property, reciting in his answer schedules of the same by separate articles. He alleges that he notified the complainant and all the judgment and other creditors of his said determination, and that no one has appealed therefrom -and that his said determination stands unreversed, and cannot now be questioned in these proceedings. He suggests that no disposition of the property covered by the complainant’s mortgage can be made without fixing the nature and extent of each of the liens thereon, and he prays that such ascertainment may be made and that his determination of the question which of said property is realty and which personalty, no appeal having been taken therefrom, may be affirmed, and that the possession •of the personalty may be awarded to him subject to'such lawful liens as have been created thereon.
    The Pennsylvania Railroad Company, a judgment creditor, by its answer disputes the validity of the complainant’s mortgage, and also of the mortgage originally made to Ralli, as encumbrances upon the personal property of the Penn Cordage Company, and charges that neither was recorded as a chattel mortgage as required by the Chattel Mortgage act of 'this state. It alleges .that it had obtained a levy on execution issued'upon its judgment against the personal property of the Penn Cordage Company, on the 1st day of December, 1897, and that its lien thus obtained is the third lien upon the personal property of the Penn Cordage Company. ' ■

      The defendant Claud S. Fries also answers, and charges that neither the mortgage of the complainant nor the Ralli mortgage was recorded as a chattel mortgage, and insists that his claim is a first lien upon the personal property of the Penn Cordage Company, because of a levy made thereunder, on the 12th day of October, 1891, prior to the two mortgages and to the judgments set out in the complainant’s bill. He also contends that neither the complainant’s nor the Ralli mortgage complies with the requirements of the Chattel Mortgage act.
    The defendants Alexander Simpson, Jr., and others, receivers of the Guarantors Finance Company, and Thomas W. Barlow, receiver .of the People’s Bank, representing their respective interest in the Ealli mortgage, also answer. They insist that the Ealli mortgage was made upon good and lawful consideration, and that it is a lien upon the lands, premises, goods and chattels and personal property described in the complainant’s bill, and they ask that the amount due on their said mortgage may be paid to them.
    Issue was joined on these answers, and the cause was brought to a hearing on evidence.
    At the hearing defaults by the Penn Cordage Company in performance of the conditions of the complainant’s mortgage, and the proper exercise of the election whereby the principal of that mortgage came to be due, were admitted by the defendants. It was also agreed that Receiver Shields’ petition in the case of Reilly v. Penn Cordage Company, 'asking for an ascertainment and classification of the mortgaged property as realty or personalty, and the testimony taken thereon, should be submitted in this cause as evidence. The answer of the Knickerbocker Trust Company in the suit of Reilly v. Penn Cordage Company was also admitted in evidence, without dispute. A copy of notice is produced, signed and served in that case by counsel for complainant in this cause, in which the complainant specifies the items of property which he claims are permanent fixtures, “constituting part of the soil, and, as such, subject to mortgages on real estate.” This was admitted by agreement.
    The counsel for the complainant admitted that the complainant’s mortgage was not recorded as a chattel mortgage. Counsel for defendants admitted that the complainant’s mortgage, in its present condition, was received by the county clerk at the time mentioned in his certificate, but that the clerk caused it to be recorded only as a real estate mortgage, and not as a chattel mortgage.
    Counsel for the complainant and for the several parties judgment creditors, mentioned in the amended bill, also agreed that the several judgments were recovered, executions issued thereon, and levied upon the property mentioned in the schedule of the receiver as the personalty of the Penn Cordage Company.

      Mr. Eugene Stevenson, for the complainant.

      Mr. James E. Howell, for the defendant Receiver Shields.
    • Mr. F. Morse Archer, for the defendants Receivers Beeber and Detwiler and for the defendant Receiver Barlow.

      Mr. Charles V. D. Joline, for the defendant Claud S. Pries.
    . Mr. Joseph H. Gaslcill, for the defendant the Pennsylvania Railroad Company.
   Grey, V. C.

The mortgage of the Penn Cordage Company to the Knickerbocker Trust Company, the complainant in this cause, securing the payment of $100,000, though executed with the formality of a chattel mortgage, was not, in fact, recorded as a chattel mortgage.

It was conceded at the hearing that the complainant’s mortgage, because not recorded as directed by the Chattel Mortgage act, was ineffectual as a chattel mortgage against the claim of the creditors of the Penn Cordage Company, mortgagor. No argument was advanced by the complainant asserting any validity in the mortgage as a chattel mortgage. As against the claims of the judgment creditors and of the receiver of the Penn Cordage Company, representing the creditors of that company, the complainant’s mortgage must be held to be invalid as a chattel mortgage.

The mortgage made by the Penn Cordage Company to Constantine P. Ralli, dated October 4th, 1897, purporting to secure the payment of $50,000, also fails of efficiency as a chattel mortgage. Though expressed, in terms, to be a lien upon the personal property of the mortgagor company, no affidavit of the mortgagee, stating the consideration of the mortgage, or the amount due or to grow due thereon, is annexed to it, nor has it been recorded as a chattel mortgage, as directed by the statute. No claim or argument was made by -the holders 'of this mortgage, defendants in the cause, asserting its validity as a chattel mortgage.

The complainant’s mortgage being solely a real estate mortgage, this suit to foreclose it must be considered as a real estate foreclosure, and only those issues can be considered which are pertinent to the foreclosure of a mortgage upon land.

The only contested point in the cause arises from the dispute between the complainant and the defendants as to what portions of the equipment, machinery, tools and appliances of the Penn Cordage Company are real estate, and, as such, subject to the lien of the complainant’s mortgage, and what portions are personal property, and, as such, free from that lien. All the evidence offered and all the arguments presented have been addressed to the establishment or refutation of the conflicting claims of the complainant or defendants on this one question.

Elaborate proofs were taken in the case of Reilly v. Penn Cordage Company on this point. They have been accepted by consent as evidence in this cause, and some additional expert testimony has been presented on the hearing. The petition of the receiver in the Reilly v. Penn Cordage Case (accepted by consent as evidence in this cause) shows that the receiver in that case determined that certain articles named in schedules annexed to the petition were personal property. The complainant,. by notice, claimed that certain articles which the receiver has classified as personalty are, in fact, real estate. The receiver’s schedules have since by agreement of the_ parties been corrected and certain articles named therein as personal have been admitted to be real estate. But there still remain certain other machines declared by the receiver, or the other defendants, to be personal propertjr, which are claimed by the complainant to be realty and to be subject to sale on this foreclosure. The present inquiry is directed, in the first'instance, to the ascertainment of the character of these disputed articles.

The Penn Cordage Company’s property is located in Beverly township, in Burlington county, and lies on the southerly side of the railroad which runs from Camden to Trenton. It consists of eleven buildings, some of brick, some of frame; in which the machinery and articles in dispute and the other equipment of the factory are placed. The larger structures are the three-story brick building, where most of the machines are located; the boiler, engine and repair shop; the rope-walks, the- tar-house, the office, wareroom, stables, shedding, &c.

The testimony shows that while these buildings are immediately usable for their present purpose, a cordage works, they are readily adaptable for many other kinds of manufacture. The only buildings peculiarly devoted to the manufacture of cordage, &c., are the. rope-walks. A rope-walk is a long; low shed with tracks running its entire length, carrying the machinery which makes the rope, the motive power being supplied from one end. The change of so peculiar a structure from the original use for which it was constructed, would be a sacrifice of -some of its value. The testimony shows that the end nearest the other buildings could be advantageously used as a storehouse.

The products of the works are rope' and binder twine, the latter of the kind used by the harvesting machines in the grain fields.

The following is a list of the machines which the complainant insists are real estate—describing them in its notice as “constituting part of the soil and as such subject to said mortgages on real estate”—and which the receiver, or other defendants, contend must be held to be personal property, with a summary of the evidence descriptive of tire disputed articles, their use, their relation to the land 'and their character as realty or personalty:

The scutcher. This is a machine used to clean hemp. It is constructed of wood with iron and steel posts, weighs probably one thousand two hundred to one- thousand five hundred pounds, is not built into the building in any way. It sits upon and is fastened to the floor by four lag screws and is run by an overhead belting connection with the shafting. It might be used in any other cordage mill, and was, in fact, brought to Beverly from another mill in Brooklyn, where it had previously been run. It has no special adaption for use at the Penn cordage factory. By the testimony it appears to be doubtful if this machine is essentially necessary for use in a cordage plant.

The lapper. This is a machine having a cylinder with fine teeth on it, into Which short hemp is fed, which it rolls up into what is called a lap or bundle. It is constructed of wood and iron, weighs about one thousand five hundred pounds, is fastened to the floor by screws and run by overhead belt connection with the shafting. Either such a machine or one doing like work is essential to a cordage works. It is, however, usable in any cordage works and; in fact, came from the Brooklyn mill, where it had previously been used. It can be removed and set up elsewhere without injury to the building or the machine, and appears to be an article of manufacture and sale in quantities.

The breaker. This is the first machine that most of the hemp is put through, it “breaks it outY It is made of iron, and is a long and heavy machine. It probably weighs a couple of tons. It is fastened to the floor by eight lag screws, and is run by a belt and overhead shafting. The fastening to the floor is for the purpose of preventing it from jarring out of its place and to keep the tight belt from lifting it from the floor. In short, to keep it stationary while in use. The machine is similar to others of like nature used in other cordage factories, is not especially adapted to the Penn cordage factory, and could be removed without injury either to itself or to the factory.

The coarse spreaders. These machines are similar to the breakers, except that they are lighter and finer. .Each machine will weigh something over a ton. They are fastened to the floor with screws and operated by overhead belting. They are very essential to any complete cordage plant and are used in all cordage factories. The machines in question were not especially constructed for the Penn cordage factory, do not differ in their construction from ordinary machines of similar character and can be removed without damage to the machine or to the building-in which it is placed. The fixing to the floor is shown to be for the purpose of preventing the motion of the power from jarring the machine out of’line so that the belts'would not run. The vibration of the machine and of the building itself would have this effect, unless it was fastened to the floor.

Four fine spreaders. These machines are described by the expert as identical with the coarse spreaders, except that the pins of the fine spreaders are finer, smaller and nearer together. They have the same characteristics of use and annexation to the building as the coarse spreader.

Two drawing frames. These are used for combing hemp. They weigh about a ton and a half. Like the others, they are fastened to the floor by lag screws and operate by a belt from overhead shafting. They are an essential part of every cordage plant. They came as finished machines from the place where they were ordered, and may be removed from the factory without injury to the machine or the buildings. They are fastened to the floor for the purpose of keeping them steady. ■ •

Eight finishers. Five of these machines are on the third floor and two on the second floor of building No. 1, and one on the second story of building No. 3. They are used for drawing in hemp, and are sometimes called “finishing frames,” because they are the last frames through which the hemp goes. They are made of iron and steel, each weighing about a ton and a half. They are essential to every cordage plant though usable to some extent for other purposes. These particular machines are not especially adapted to the Penn cordage works, are finished for use anywhere. Fastened to the floor in order to steady them in their places to prevent them from jarring.

Forty-two double jennys- These are spinning machines used to spin yarn. They are made of iron and steel, operated by belts from overhead shafting, most of them are fastened to the floor, with a lag screw, and weigh about a ton each. They are not especially adapted to the Penn cordage works, were brought upon the premises as finished machines, are movable and fastened to the floor to avoid jarring and displacement.

Single and double twisters. There are nine of these machines, which are used for twisting the yarn together into rope and strands. There are two kinds, single machines and double machines. The single ones weigh 'about one thousand two hundred pounds, and the double ones probably a ton. Such of them as are fastened to the floor are attached by lag screws. Some of them are not fastened at all. All of them are movable, were brought upon the premises as finished machines, and may be removed without injury to the building or machines, and used in any cordage factory. Every cordage plant has them.

Marline machines. These machines are similar to the twister, except that they have an additional turn. They are used in every cordage plant which goes into marline making. They are brought upon the premises as finished machines,- can be taken out without injury to the building or to the machine and used elsewhere, and are fastened to the floor to prevent displacement.

Houseline machines. They are similar to the marline machines, except that they have three bobbins in the rear instead of two. Each weighs about one thousand two hundred pounds. They are fastened to the floor with lag screws to keep them steadjq are found in every cordage works, can be removed to any other building without injury to-the building or machine. They came upon the premises as complete machines, are not.especially adapted to the Penn cordage works.

The expert testified that in the use of the machines at the Penn cordage works, although, as a rule, they remained in-their places, yet they are frequently changed about. If twine were being made, the twisters would be removed and the 'bailers put in, and if rope, the twisters would be put in and the ballei’s removed. ■ -

Bailers. There are ten of these. They are iron machines, used for putting the twine into balls, such- as are used in reaping machines. Each-machine weighs about a thousand pounds. They are necessary in any cordage factory which makes binder twine. They came upon the' premises as complete machines, are fastened to the floor to prevent displacement, are'not especially adapted to the Penn cordage works, could be taken out and used anywhere in any other cordage works.

Strapping reel bars. These are iron bars, upon' posts, with pulley and belt to revolve'tile bar so as to coil up rope’. Two of these posts were specially put up. They could, however, be taken down and out of the building, and this would not injure the coil arrangement for usé elsewhere.

Eope machines. These are used to make small rope, from six threads up to twenty-four threads. The twenty-four-thread machines weigh from a ton to a ton and a half. The twelve-thread machines weigh about a ton and the six-thread machines somewhat less. They are fastened to the floor and run by belting, and are necessary parts of any cordage plant which makes small rope. They came upon the premises as finished machines, were not especially built for the Penn Cordage Company, could be taken away without injury either to the building or to the machine, and are usable in any other cordage factory. The particular machines in question were, in fact, second-hand machines—most of them-—-and had been used elsewhere before they were brought to Beverly. In their use they had been moved from place to place in readjusting the factory.

Boone layers. There are. two of these- machines, and are used for the purpose of putting the twist into rope. The double one weighs about three thousand pounds and the single one about two thousand pounds. They are fastened to the floor to steady them. Can be moved without injury to the building or machine, and are usable in any other cordage factory making the same product.

One former. This machine is used to twist the yarn into strands. It weighs about four hundred pounds, is a movable machine, usable in any cordage factory. Though essential to such a factory, was not especially built for ’the Penn cordage works. Could be taken out without damage.

The above-described machines are located in building No. 1 (except as mentioned), with reference to- their convenient use with relation to the amount of power there required. They constitute, as a whole, what the parties using them deem to be the most convenient arrangement of the conduct of their business. ■ •

In building No. 2 there are only two lathes, two drill's, one shaper, one grindstone, one oil pump and one emery grinder. Except the oil pump, used for oiling hemp, the whole- building •and its equipment make up a machine shop for repairing purposes.' The tools—most of them—are screwed to the floor. They are useful for the keeping of the machines of the factory in order.

Picker. This is a large cylinder of pointed teeth. It revolves and the fibre of material is fed into it and the machine picks it apart. It is used to tear old rope and old, and sometimes good, stock into shreds. It weighs about a toar and more. It is usable, not only in cordage plants, but for the other purposes outside of cordage in concerns which use pickers. It was brought to the Penn Cordage Company a complete machine,-and is capable of removal without injury to the machine or the buildings. It is fastened to the floor to prevent displacement.

Porgy spinner. This machine is used to twist up short waste material into strands. It weighs 'something less than a ton. The particular machine in question was not especially constructed for the Penn Cordage' Company, and is capable of use in similar manufacturing establishments, and is fastened to the floor to steady it while in motion.

Jacks. There are eight forming and laying jacks on the premises. They are the machinery in the rope-walk. They are run on tracks, up and down the walk, and are driven by an endless band and are taken along the floor by a windlass. The forming jacks travel from one end of the floor to the other, going down with the rope and coming back to get another lot. The laying jack, the lower one, is on wheels and movable, but, as a general thing, is tied fast to a post. The jacks on the new rope-walk are laid on rails of yellow pine timber, which are nailed to the floor. In the old rope-walk the tracks are light iron T rails, laid on the floor. The jacks themselves are movable, run back and forth on the rails, and form the yarn into strands. They are used only in rope-walks, are somewhat of the nature of small railroad cars, and are built of a certain width adapted to the tracks.

Eccling machines. These machines operate by separate gears, and are used to wind the rope into coils. The smaller ones weigh six hundred pounds and the larger one thousand five hundred. The frames of two of them are fastened to the floor. The third is on a track, with iron wheels. - It runs up and down the tracks, operated by an endless band. These machines were complete when brought on the premises, are usable in any cordage plant, and not especially adapted to the Penn cordage buildings, but might be used in any rope-walk, and are removable without injury to the building or the machines.

Strapping reel band. This is a small stand about eighteen inches square on the floor, standing about two feet and a half high, and contains a reel, used for reeling up small coils of rope, and is driven by shafting overhead. It is a small machine, screwed to the floor. It can be used in any cordage plant.

Yarn testing reel. This is a machine used to bind yarn upon or measure the length into pounds. The axle of the reel is horizontal, fastened to two wooden posts screwed to the floor.

Belt driver. This is an appliance at the top of an endless belt that runs from the first to the second floor of the new rope-walk, and is used to send bobbins and material down from the second to the first floor. It is in the nature of an elevator. It is adjustable and usable anywhere for a like service.

Eeversing reel. This is a machine used in reversing the yarn from the outside ends of one bobbin to the inside of another. It could be used elsewhere as part of any cordage plant, and is fastened to the floor to keep it steady.

Porgy jenny. This is a second-hand machine, which is on storage in building No. 6, has been there for three years, and has never been set up. It does not appear to have been in any way connected with' the realty.

Belting. At the hearing the belting was admitted to be a part of the realty, but, as the examination proceeded, the judgment creditors insisted that a portion of the belting, which related to particular machines, was not part of the realty, but was personalty. The expert testified that all belting below six inches in width was used to drive down to the machines, while that from six inches up drives from the shafting.

Bobbin reel. This is like a large spool, and hangs from the ceiling.

Large platform scale. This 'is a large Fairbanks platform scale, set in a pit. Its weighing capacity is three thousand six hundred pounds. There is an excavation within which the weighing machinery is set. This is walled in by stone or brick, and is immovable. The first floor of the building is recessed out so that the platform of the scale comes flush with its floor.

Tanks and kettles. -These are in "building No. 4, used for a tar-house, in which tar is heated in these large kettles by a steam pipe. The rope and yarn are then run through the melted tar. There is one tar tank, one tallow tank and large and small kettles. The large tar kettle is heated by steam pipes which run around it. The small tar kettle is heated by steam-pipe connections. The tar tank is built of wood, is copper lined and has steam-pipe connections. These steam-pipe connections carry steam from the boiler. The larger tar kettle was built with the tar-house, and appears to be a part of it, and it is proven would be injured by taking it out.

Windlasses. Two of these are used for hoisting up rope out of the tanks.

Reel flyers. These appear to be parts of machines which have been laid aside.

Platform scale. This is an ordinary platform scale on wheels, movable from place to place.

Some additional evidence has been offered by the complainant, going to show that the machinery in question, taken as a whole, is adaptable and usable solely for the purpose of the rope and cordage business; that the buildings have been adjusted for the use of such machinery; that the permanent shafting has been put in with special reference to the use of cordage machinery, and that the removal of that machinery would make it comparatively useless. The complainant also recalled the expert who testified as to the character of the machinery, and naming over the list of the disputed articles to him, asked his opinion, whether they were more valuable when sold in connection with the building whore they are than when sold to be removed. The expert was of opinion that they would be more valuable if sold as they were located in the building, ready to run, for the reason that it would cost something to take them out and move them away and place them in another building. The complainant further sought to show that there was a liability to additional loss from the disruption of the cordage works, and from the improbability that a purchaser woukl want to buy if he could not at once proceed to work the factory. The expert,was of opinion that any purchaser who might want the property as a cordage works would want everything that was upon it, the equipment with the buildings, though he admitted that there was a likelihood of more bidders for certain portions of the machinery. Finally, the expert was of opinion that the real estate and buildings would not sell as advantageously without the machinery, &c., as with it.

The court of appeals has several times declared the principles which govern the conversion of personal property into realty, by incorporation into the freehold. One of the latest deliverances of that court is the case of Feder v. Van Winkle, 8 Dick. Ch. Rep. 372. The rules there laid down are that in order to establish the claim of the mortgagee to machinery against the receiver (of an insolvent corporation) it must appear:

First. That the chattels were actually annexed to the real estate or to something appurtenant thereto.

Second. That they were applied to the use or purpose to which that part of the realty with which they were connected was appropriated.

Third. That they were annexed with the intention to make a permanent accession to the freehold.

As to the actual annexation and intended incorporation of the machines in dispute in this case into the realty, so that they became part of the freehold, it may be said of all the machines above described, that the testimony shows that they came to the Penn cordage works as finished and completed articles of merchandise, ready, when they arrived, to perform their work when set up in place and connected with power. Some had previously been in use elsewhere. None of them were specially made for the Penn cordage works. None of them were incorporated into or became, by construction, a part of the buildings or real estate of the Penn Cordage Company. All were served with power, not by cog-wheels, which might indicate permanent placing of the machines, but by adjustable belting, which allowed their ready removal. The court of appeals in Scheifele v. Schmitz, 15 Stew. Eq. 901, recognized this distinction. The only evidence of actual annexation to the realty, besides their presence in j;he buildings, is the fact that the machines were fastened in place by lag screws. This is a screw with a nut head which may readily be turned by a wrench. This adjustable fastening held them to the floors so that when in use they might not be jarred out of position by the motion of communicated power. None, even of the heavier and larger ones, were annexed in any permanent way to the buildings or real estate.

There is no evidence which indicates any intention that these machines should become either temporarily or permanently a part of the freehold. The Penn Cordage Company dealt with them as movable and adjustable tools, convenient for the conduct of its business. All are capable of removal and use in any other cordage works without injury to the Penn cordage buildings, or to the machines themselves. Many of the lighter machines were not only movable but were actually moved from one place in the factory to another, as the convenience of their use might require. When they made twine they removed the twisters and put in the bailers, and when they were making rope they took out die bailers and put in the twisters.

The counsel for complainant insists with much ingenuity that in view of the construction of the rope-walk buildings, their efficient use for rope-making purposes, and for no other, and the attendant construction of the other suitable buildings, the introduction upon the premises of machinery especially adapted to the manufacture of rope and cordage, must be considered as an annexation of the machines to the buildings specially constructed for that purpose. He insists that the evidence in the present case is much more forceful to show a conversion of the machines into realty than were the proofs in the case of Feder v. Van Winkle, and that the machines cannot be here held to be personalty without overruling that decision.

In the Feder Case the learned justice who delivered the opinion of the court of appeals put the decision upon the question whether there was an absence of the intention to incorporate the machinery with the real estate, as in Blancke v. Rogers, 11 C. E. Gr. 565, or the presence of such an intention, as in Speiden v. Parker, 1 Dick. Ch. Rep. 292. He reviews the evidence in the Feder Case as to the nature of the annexation of the various machines to the land, and holds that the chattels did not retain the character of personalty as in the Blanche Case, but were transmuted into realty and passed to the mortgagee as in the Speiden Case. The learned justice found that the evidence in the Feder Case showed that “the various appliances were actually annexed to the freehold, they were fitted for and applied to the use to which the real estate was appropriated, all being designed for and necessary to the prosecution of a common purpose, thus the machinery and the land became fixed and incorporated as a whole.”

To determine that there has been a conversion there must be evidence which shows, an annexation of a character to indicate that there is a purpose to malee the chattel a part of the realty. There was in the Feder Case, in the judgment of the court of appeals, sufficient proof to sustain this view. The character of the annexation to the land of the appliances in disputé in that case is related on page 375 of the report. It will be seen the annexation is so substantial and permanent as to be structural and incorporative of the machines into the realty.

In the present case, as to the machines, there is no such evidence. They were fixed in position, as the expert proved, by adjustable fastenings, to keep them from displacement by motion. They connected with the permanent shafting by adjustable belting. Many, of them were, in fact, moved as the convenience of their use required. These facts bring these machines within the ruling in the Blanche Case, recognized in Feder v. Van Winkle to be the leading decision of its class.

The proofs in this case do show one of the elements necessary to support a conversion of chattels into realty. The machines were used for the same purposes to which the realty was appropriated. But this is not enough. All the essential incidents must co-exist ip. order to effect a conversion. In this case there is no sufficient showing either of an actual annexation of the machines or of an intention to make them part of the freehold. The principles declared and applied in the decisions of Blancke v. Rogers, Scheifele v. Schmitz, ubi supra, and Penn Mutual Insurance Co. v. Semple, 11 Stew. Eq. 578, must control this ease.

There are, however, several articles in dispute, regarding which the evidence shows actual annexation to the freehold of a permanent character.

The large platform scale rests upon a stone or brick foundation, built in the ground, and is immovable. The first floor of the building is recessed to'hold it, and the platform of the scale is built to be flush with the floor. This annexation is structural and incorporative of the scale into the realty, and it thus becomes subject to the mortgage.

The tar tank and kettles are in the same class. The large one is built into the tar-house, and would be practically destroyed if removed. The smaller tar kettle and the tar tank are so fixed in the building that-they, are part of it, and are also connected with the realty by steam pipes leading from the boiler. The receiver concedes these to be realty, but the judgment creditors insist they are personalty. The tallow tank is within the same ruling. They are all part of the realty.

The movable platform scale on wheels is clearly unattached to the realty, and is personal property.

The belting usable in immediate connection with the individual machines which are held to be personalty, not usable without them, partakes of their nature, and is also personalty. This applies to the belting which the expert described as “all the belting below six inches, which drives down to the machines,” and not to that “from six inches up, which drives from the shafts.”

I have discussed the matters in dispute solely with reference to the evidence of a conversion of the machines in question into realty, and the consequent lien of the mortgages thereon. It may be proper to note that the mortgages do not refer to the thing mortgaged as a cordage factory or designate it in any other way as an entirety, whereof the land’, the buildings, the machines and tools and equipment were component parts, all going to make what is known in business parlance as “a plant.” The descriptions in no way indicate that the parties dealt with the things mortgaged as an entirety. The complainant’s mortgage was executed by the Penn Cordage Company, not only as a real estate mortgage, but also as a chattel mortgage, showing that the mortgagor did not deal with its property as a single thing—an entirety—in making the mortgage. The land is described as land, •the personalty as personalty. There is not even mention of the character of the business for which the property was used. Nor are machines or machinery named in the complainant’s mortgage. The complainant can maintain the lien of its mortgage on the machines only by showing that' they have, by the acts of the parties ancl by operation of law, become real estate. In this it has failed. The doctrine declared in Delaware, Lackawanna and Western Railroad Co. v. Oxford Iron Co., 9 Stew. Eq. 340, does not apply to this case.

It is no reason to include the personalty within the lien of the mortgage, and the sale of the mortgaged premises (against the wishes of those interested in the personalty), because a possible purchaser of the works would pay more for both factory and machines, if they were sold at one bid than if sold separately. The complainant is entitled to a decree for the sale of the property included within the mortgage and to no more. If any accompanying disposition is to be made of the personalty, it can only be by consent of parties interested in the personalty or by a showing of an equitable right in the complainant, which has not been exhibited in this case.

This disposes of all the questions necessary to the ascertainment and enforcement of the complainant’s rights. There are suggestions in the answers of equities claimed by the defendants as against each other, which, in the present state of the pleadings, cannot be determined in this foreclosure suit. The receiver claims that the Ealli mortgage held by the defendants, the receivers' of the Guarantors company, and of the People’s Bank, is absolutely void for want of consideration, &e. The answer which sets up this claim by one defendant against another is not framed as a cross-bill, nor has the mode of procedure required by the rules of this court in cases of cross-bills been followed. The Ealli mortgage is, as above shown, a lien only upon the real estate. The inferences to be drawn from the proofs indicate that it is very doubtful whether the purchase-money of the real estate will be sufficient to satisfy the complainant’s mortgage. If it is insufficient, litigation between the defendants as to whether the Ealli mortgage is valid or not would be futile.' The foreclosure sale of the premises ought not to be delayed to await the reformation of pleadings and the settlement of disputes between defendants which do not affect the complainant’s right to relief, but which may seriously interfere with the enforcement of its ■undoubtedly prior equity. The cross equities oi the defendants may be adjusted after the sale in the disposal of the surplus money (if there shall be any) by a subsequent proceeding for that purpose.

A decree will be advised in accordance with the views above' expressed.