text:
    Ray v. Jefferson County Gas Company, Appellant.

      Contract — Question for jury — Conflicting evidence — Charge.
    Where in an action for salary against a corporation, the defense is that the work done was for the president of the company personally, and the evidence is conflicting, a verdict and judgment for plaintiff will not be reversed, if there is no error or inadequacy in the charge, and no error is alleged as to the admission or rejection of evidence.
    Argued May 21,1906.
    Appeal, No. 153, April T., 1906, by defendant,-from judgment of C. P. Warren Co., June T., 1905, No. 30, on verdict for plaintiff in case of W. A. Ray v. Jefferson County Gas Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for salary. Before Lindsey, P. J.
    The court charged in part as follows :
    Now, gentlemen of the jury, if you find from the evidence that W. A. Ray was actually employed to work for the Jefferson County Gas Company and that he did do the work and he has not received his pay, then we say to you that he is entitled to recover. This defense that is set up here is largely in the declarations of Mr. Ray and Mr. DeGolia, tending to show that such was not the employment. But if you come to the conclusion from the evidence that Mr. Ray was actually employed to do this work, then this defense cannot avail them.
    [Among the papers and other things that are offered in evidence in support of this, is an entry which they claim Mr. De-Golia-entered on the books of the Jefferson County Gas Company, and it is in the following words and figures : “ August 29, Well account ” — the figures “ 93 ” are given there, what they refer to I don’t know, but “ Well account, $1385.40. To George E. DeGolia, depth of well 2309 feet, at 60 cents per foot, $1385.40.” So you see, gentlemen, that what Mr. DeGolia directed the clerk there, the young lady that was called as a witness, to enter was “Well account, $1385.40.” A charge to George E. DeGolia of a like amount and giving the depth of the well and the price.] [1]
    Now, gentlemen, let me call your attention to what Mr. De-Golia says in relation to the time when he employed Mr. Ray. He stated that Mr. Ray had been working for them and he .continued to work right along, but he said he had purchased a string of tools, as I understood him, and to do this work, or over in the section where Mr. Ray was sent afterwards. And he stated that he didn’t know but the directors might object to that and prefer that the wells be drilled by contract, and he said that he kept the accounts separate, and that he directed Mr. Ray to keep the accounts separate, and that he kept the accounts separate so if they did object he would do the drilling upon the contract and for the price of sixty cents a foot. Now, he says he directed this entry for the purpose of keeping the account separate, and thus it was entered on the book.
    [We say to you, gentlemen, if you find that Mr. Ray was employed according to the evidence, then this defense must fall, it cannot avail the defendant in this case if he was actually employed to do the work. And the question would be a question between DeGolia and the Jefferson County Gas Company.] [3]
    [Now other testimony, other papers, are given in evidence here, among them a bill sent by Mr. Ray, which is a bill made out to George E. DeGolia, and “ Debtor to W. A. Ray,” and goes on then to give the amount of the indebtedness from April 1, 1904, to December 1, 1904, $100 per month, $800. Aiid on it is written “ O. K. Pay it and charge my account. George E. DeGolia. 1-12-05.”
    Now, gentlemen of the jury, Mr. Ray’s explanation, as I understand him is, that he made this out and sent it in response to a letter which he had received from some officer of the company saying that they wanted the bills made out to George E. DeGolia, and he made this bill in response to such letter or such direction, and he says that he had presented his bill before that to the J efferson County 'Gas Company.
    Now it is for you to say whether there is anything inconsistent in this, and these other papers which are given in evidence, with the account or with the explanation which Mr. DeGolia gives. Mr. DeGolia says here “ O. K. Pay it and charge it to my account.” If Mr. Ray was employed as we have said, if you come to that conclusion, then he is entitled to recover, and these matters are matters between Mr. DeGolia and the corporation, the Jefferson County Gas Company.] ' [4]
    Verdict and judgment for plaintiff for $848. Defendant appealed.

      Errors assigned were (1, 3, 4) portion of charge as above, quoting them.

      D-. I. Ball, for appellant.

      John W Dunkle, with him Wm. S. Clark and A. B. Vera, for appellee.
    June 30, 1906:
   Opinion by

Orlady, J.,

The plaintiff brought this suit to recover the sum of $800, alleged to be due as a salary of $100 per month, from April 1 to December 1,1904, on an agreement made with the president and manager of the defendant company. The defense was that he was in the personal employment of Geo. D. DeGolia, who was then president and manager of the defendant company. The appellant frankly admits that.the question at issue was the credibility of the plaintiff’s witnesses and his claim. It is difficult to reconcile some of the conflicting statements of the witnesses. The solution of these questions was referred to the only tribunal authorized by law to dispose of them, and we accept the result arrived at as a fact settled by the verdict.

The third assignment of error is as follows: “We say to you, if you find that Mr. Ray was employed, according to the evidence, then this defense must fail. It cannot avail the defendant in this case. If he was actually employed to do the work, the question would be a question between DeGolia and the Jefferson County Gas Co.” If this were all that the court had stated on the subject, it would necessarily have given the jury a wrong basis for determining the question between the parties. The mere fact of the work being done was not sufficient to entitle the plaintiff to recover. His claim was for careful and diligent work, performed by him for the defendant at the defendant’s special instance and request, and it was necessary for him to make good that allegation before he was entitled to a verdict. The jury was directed to examine all the evidence carefully, and while it happens that in several places in the charge it was not made clear that the measure of proof should be as above stated, the concluding suggestion in the charge carefully submitted that thought in a way in which the jury could not misunderstand it.

The court said as follows : “ If you find from the evidence that has been given to you by the defendants, that he was not employed for them, that he did not do the work for them, or that he has been paid, and there is no allegation that he has been paid, then he would not be entitled to recover. But we say, whether or not Mr. DeGolia was doing this work by contract, it cannot affect Mr. Ray, provided you come to the conclusion that he was actually employed for the Jefferson County Gas Company.” Taking the charge as a wholb, we do not feel that there was any reversible error.

The judgment is affirmed.


source: Caselaw Access Project

author: Orlady, J.,

license: Public Domain

text:
    Pennsylvania Company, Appellant, v. Marquis Limestone & Clay Company.

      Common carriers — Railroads—Demurrer—Affidavit of defense.

    Where an action brought by a railroad company to recover car demurrage is based upon a rule of its own creation, an affidavit of defense which specifically denies the existence of such a rule, is sufficient to prevent judgment.
    Argued May 16, 1906.
    Appeal, No. 163, April T., 1906, by plaintiff, from order of O. P. Lawrence Co., Sept. T., 1905, No. 6, discharging rule for judgment for want of a sufficient affidavit of defense in case of Pennsylvania Company v. Marquis Limestone & Clay Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for car demurrage. Before Porter, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court discharging rule for judgment for want of a sufficient affidavit of defense.

      Oscar L. Jackson, with him Charles R. Davis, for appellant.
    —This case is ruled by Pennsylvania Railroad Company v. Midvale Steel Company, 201 Pa. 624, and by Baltimore & Ohio Railroad Company v. Gray’s Ferry Abbatoir Company, 27 Pa. Superior Ct. 511.

      J. Norman Martin, for appellee.
    June 30, 1906:
   Opinion by

Orlady, J.,

It is conceded that the right of the plaintiff to recover any amount from the defendant is founded upon a rule of its own creation, and in regard to which the defendant was not consulted. The statement alleges that the plaintiff, acting in conjunction with other railroad companies, had adopted and established a general rule applicable within the territory known as the Pittsburg district, in which the business of the defend,ant company was conducted, providing that a charge of $1.00 per day for each day, or part of a day, should be imposed for car service, for and upon each car carried over any portion of its line of railroads, not unloaded by consignee within forty-eight hours after seven o’clock in the morning of the day following the delivery of the car, or after notice to the consignee that the plaintiff was ready to deliver the car to the consignee, as the case might be, not including Sundays and legal holidays, during which such car should remain unloaded, the said charge being payable by the consignee or person receiving said car.

The claim is for car service under this rule, from April 18, 1904, to January 12, 1905, and amounts to $769. The affidavit of defense denies unequivocally and positively that any such rule was in existence, and that such rule did not at any time form a part of any contract of carriage of cars for the defendant company over the lines of the plaintiff’s railroad.

The rule, under which the plaintiff claims, as incorporated in the statement, is not printed in the form of a quotation, but as part of the general narrative of the plaintiff’s case. ■ As presented, it is a suggestion of what charges “ should be imposed,” rather than a declaration that .the consignee would be expected to pa3r the rate named for the detention of the car. The defendant does not deny the right of the railroad company to adopt and enforce reasonable car service rules, but it does specifically deny, that under the facts as scheduled in the plaintiff’s statement, the rate charged would be just and reasonable. Every allegation of the plaintiff’s statement, that is material to maintain its cause, is as plainly and explicitly denied in the affidavit of defense.

The existence of the rule should be established by proof sufficient to sustain a judgment, and the plaintiff’s demand for a summary judgment is fully answered by the positive denial, under oath, by the defendant, that the rule does not exist. The rule for judgment for want of sufficient affidavit of defense was rightly discharged.

The judgment is affirmed.


author: Morrison, J.,

text:
    Holthouse, Appellant, v. Bray.

      Mechanic’s lien — Amendment—Practice, C. P.

    Where on the trial of a scire facias sur mechanic’s lien filed six months prior to the date of the trial, it appeared from the uncontradicted testimony that the plaintiff did not furnish the material on the credit of the building, it is not error for the court to refuse to permit the record to be amended so as to substitute as plaintiff, the person who really furnished the material on the credit of the building.
    Argued April 24, 1906.
    Appeal, No. 152, April T., 1906, by plaintiff, from order of C. P. No. 1, Allegheny Co., JuneT., 1903, No. 328, refusing to take off nonsuit in case of A. W. Holthouse v. Charles W. Bray, Owner, and George E.' Hardie, Contractor.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head, J J.
    Affirmed.
    Scire facias sur mechanic’s lien.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned -were (1) refusing to take off nonsuit; (2) in refusing leave to amend.

      William M. MoElroy, with him J. S. Ferguson, for appellant:
    Gebhard v. Levering, 14 Phila. 120; Herr v. Harnish, 13 L., Bar. 175; Jones v. Philler, 13 Pa. C. C. Rep. 232; Dill v. Gaughan, 9 Kulp, 384; Linden Steel Co. v. Imperial Refining Co., 138 Pa. 10.

      W. H. Lemon, with him Chas. A. Woods, for appellees,
    cited : Knox v. Hilty, 118 Pa. 430; McFarland v. Schultz, 168 Pa. 634.
    June 30, 1906 :
   Opinion by

Morrison, J.,

The appellant in this case states the questions involved as follows:

“1. The action being a scire facias sur mechanic’s lien, whether under the testimony in the case ex-parte plaintiff, there was sufficient to go to the jury that the lumber claimed for was furnished either to or on the credit of the building.”
“ 2. Whether the amendment asked for at the trial, making the plaintiff H. H. Hopkins for use of A. W. Holthouse should have been allowed.”
“ 3. Whether or not judgment of nonsuit was properly entered.”

The assignments of error raise the questions of the refusal of the court to take off the compulsory nonsuit, and the refusal to allow the amendment above mentioned.

An examination of the testimony convinces us that outside o,f the hearsay and incompetent testimony of the plaintiff, there was a clear showing that the lumber for .which the lien was filed was purchased in Cleveland on credit and account of H. H. Hopkins and that it was delivered to George E. Hardie, by Hopkins’s direction, on the credit of said Hardie, and not on the credit of the building mentioned in the lien. It clearly appears in the evidence of Hopkins that he sold the lumber to Hardie and on his credit. When the plaintiff rested and was met by the defendant’s motion for a compulsory nonsuit, it then seems to have been conceded by the learned counsel for the plaintiff that the lien ought not to have been filed in favor of A. W. Holt-house. If the counsel had suggested that both Hopkins and Holthouse were interested in the subject-matter of the lien and that a mistake had been made in failing to include with Holt-house the name of Hopkins, as claimants, there would have been much force in the proposition to amend. But the purposed amendment conceded that H. H. Hopkins was the person who purchased the lumber and sold it to George E. Hardie, contractor. This being so, the lien ought to have been filed in the name of Hopkins.

We then have a lien filed more than six months prior to this trial and motion to amend, in favor of one who had no right to a lien against the property mentioned in the lien, for the lumber in question. To have permitted the amendment would have been, in legal effect, permitting Hopkins to file a lien for the lumber against Bray’s property, more than six months after it had been delivered to Hardie at his planing mill and on his individual credit. In our opinion, what has been said clearly indicates that the learned court did.not err in refusing the amendment and in granting the compulsory nonsuit and refusing to take it off.

The assignments of error are dismissed and the judgment is affirmed.


text:
    Yeager’s Estate.

      Evidence — Witness—Party dead — Cross-examination.
    Where an administrator has been cross-examined as to his accounts and writings showing business relations with the deceased, he may testify in his own behalf as to his transactions between himself and the decedent in the latter’s- lifetime. »

      Auditor — Findings of facts — Gift.
    An auditor’s findings of facts relating to a gift if based on sufficient evidence and confirmed by the orphans' court, will not be reversed in the absence of manifest error.
    Argued May 16, 1906.
    Appeal, No. 77, April T., 1906, by Margaret Miller, from decree of O. C. Mercer Co., Oct. T., 1908, No. 10, dismissing exceptions to auditor’s report in Estate of Sarah E. Yeager, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, O ready, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of James D. Emery, Esq., auditor. Before Williams, P. J.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were to various findings of law.

      8. E. Miller, with him J. Gr. White, for appellant,
    cited: Shaw v. Levy, 17 S. & R. 99 ; Kidder v. Kidder, 38 Pa. 268; Campbell’s Estate, 7 Pa. 100 ; Zimmerman v. Streeper, 75 Pa. 147.

      S. S. Mehard, with him A. E. McElrath, for appellee,
    cited: Corson’s Est., 137 Pa. 160; Boyd v. Conshohocken Worsted Mills, 149 Pa. 363; Watkins v. Hughes, 206 Pa. 526; Ritchie v. Deposit & Trust Co., 189 Pa. 410; Lowrey v. Robinson, 141 Pa. 189; Gettysburg National Bank v. Kuhns, 62 Pa. 88; Huntzinger v. Jones, 60 Pa. 170; Masser v. Bowen, 29 Pa. 129; Flemming v. McClain, 13 Pa. 177; Patton v. Ash, 7 S. & R. 116.
    June 30, 1906 :
   Opinion by

Morrison, J.,

This is an appeal, by Margaret Miller, a daughter of the decedent, and exceptant below, from the final decree of the orphans’ court of Mercer county upon the account of Dr. M. G. Yeager, administrator of the estate of Sarah E. Yeager, deceased.

The able and fair presentation of the disputed questions by the learned counsel for the appellant and appellee enables us to get a fair grasp of the facts upon which the controversy arises, without difficulty. The counsel for the appellee has concisely stated the errors of which the learned counsel for the appellant complains as follows, to wit: “1. Was the accountant made competent to testify on his own behalf to transactions with the decedent. in her lifetime, through his cross-examination on behalf of the exceptant? 2. Were accountant’s sisters competent witnesses for him ? 3. Was there manifest error in the findings of the auditor approved by the court?”

It is conceded that the accountant was not competent to testify in his own behalf to transactions with his mother in her lifetime, unless made so by his cross-examination on the part of the exceptant. The solution of this question depends upon the Act of May 23, 1887, sec. 7, P. L. 158, to wit: “ In any civil proceeding whether or not it be brought or defended by a person representing the interests of a deceased or lunatic assignor of any thing or contract in action, a party to the record or a person for whose immediate benefit such proceeding is prosecuted or defended, or any other person whose interest is adverse to the party calling him as a witness, may be compelled by the adverse party to testify as if under cross-examination, subject to the rules, of evidence applicable to witnesses under cross-examination, and the adverse party calling such witnesses shall not be concluded by his testimony, but such person so cross-examined shall become thereby a fully competent witness for the other party as to all relevant matters, whether or not these matters were touched upon in cross-examination.”

The examination of the accountant was as follows: He was called, sworn and cross-examined on behalf of the exceptant as follows: “ Q. Have you books of account, or other writings, showing your business transactions with and for your mother, relating to the collection of rents and moneys realized from the sale of real estate, and the disbursements of the same, since the date of the death of your father, or covering any portion of said period, or including any part or parts of the money collected and disbursed as rents or purchase money as aforesaid ? A. I have papers and receipts to cover a part of the amount, and other evidence to cover the balance. Q. "Will you produce such accounts, books, etc., as are in your possession, to the auditor for inspection ? A. Gladly. Adjourned until Friday, March 4, 1904. And now, March 4, 1904, hearing resumed. Doctor M. G. Yeager recalled. By Mr. White: Q. These papers (the checks, etc., delivered to the auditor) are all the papers and accounts that you have relating to my preliminary question in this case ? A. They are all the written papers I have.”

The learned counsel for the appellant argues that the foregoing cross-examination of the accountant was only such as was permitted under the common law, and that it did not entitle the accountant to testify in his own behalf as to transactions between himself and his mother in her lifetime. The case of Shaw v. Levy, 17 S. & R. 99, is relied on to support this contention, but that and kindred cases only go to the proposition that á a party to a cause, sworn on his voir dire, to his book of original entries, cannot be examined generally by the opposite party, without his consent, but can only be examined to show it was not his book of original entries, or that the entries were not made at the time.” But the cross-examination of the accountant in this case does, not relate to books of original entry. There were no books of original entries. We think the questions and answers were much broader than an inquiry with a view to putting a certain book or paper in evidence. Our conclusion is that the examination made the accountant competent, in his own behalf, under section 7 above quoted, and the following cases: Corson’s Estate, 137 Pa. 160; Boyd v. Conshohocken Worsted Mills, 149 Pa. 363; Watkins v. Hughes, 206 Pa. 526. As to the second question, we are clearly of the opinion that the sisters of the accountant were competent witnesses for him. The appellant, another sister, testified .generally in the case and so did the other sisters, and we can see no merit in the contention that any of these sisters were not competent witnesses for the accountant.

As to the last question, we do not discover anything in the evidence, arguments and authorities cited, requiring us to reverse the findings and conclusions of the learned auditor, which were approved by the court. While the questions involved in the answer to this inquiry are rather close, and while it may be that the fact as to the gift of $1,000 might have been found against the accountant, yet we cannot say that there was a lack of sufficient competent evidence to sustain the findings of the auditor. He saw and heard the witnesses and was, probably, well acquainted with all of the parties and the circumstances disclosed by the evidence, and we are not prepared to say that there is clear or manifest error in his conclusions of fact. In our opinion, the testimony of the accountant and two of his sisters is sufficient to sustain the finding that the decedent gave $1,000 to the accountant to buy a home for himself. As to the $400 and the $35.00 checks, we do not think, under all of the evidence, that they raise a presumption of indebtedness from the accountant to his mother : Ritchie v. Deposit and Trust Co., 189 Pa. 410; Lowrey v. Robinson, 141 Pa. 189; Gettysburg National Bank v. Kuhns, 62 Pa. 88.

We do not discover any reversible error in the conclusions of law and the decree.’

The appeal is dismissed at the costs of the appellant and the decree is affirmed.


text:
    White Independent School District.

      School law — Independent school district — Notice—Acts of May 8, 1855, P. L. 509, and May 20, 1857, P. L. 587.
    An order establishing an independent school district, will not, after the expiration of fifty years, be vacated and the district abolished, merely because the notice required by the act was not given before the order was made, nor because the order was made prior to the term provided by the Act of April 15, 1834, P. L. 537; and this is especially the case, where there is ground for holding that the report of the commissioners and the confirmation thereof, were made at the times prescribed by the act.
    The Act of May 20, 1857, P. L. 587, has no application to proceedings for the formation of independent school districts begun and consummated under the Act of May 8, 1855, P. L. 509, before the act of May 20, 1857, was passed.
    Argued May 21, 1906.
    Appeal, No. 33, April T., 1906, by White Independent School District of Sparta Township, from order of Q. S. Crawford Co., Nov. T., 1855, No. 38, and April Term, 1856, No. 17, abolishing independent school district in the Matter of the White Independent School’ District of Sparta.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Petition to abolish an independent school district. Before Thomas, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court.

      Cfeorge TV. Haskins, with him John Gc. MeQlintoek, ,for appellant.

      Thomas J. Prather, for appellee.
    June 30, 1906:
   Opinion by

Morrison, J.,

On November 24, 1855, taxable inhabitants of the township of Sparta presented a petition to the court of quarter sessions of Crawford county, praying that certain territory described in the petition be formed into an independent and separate school district, and praying for the appointment of commissioners, etc. On the same day the court appointed three commissioners- to view the premises and report at the next court in accordance with the act of assembly of May 8, 1855. By paper dated the following January the commissioners reported in favor of the independent school district, describing the territory to be embraced therein. On April 11,1856, the court made the following order: “ And now, April 11,1856, approved and confirmed by court. And election to be held for school directors on ten days’ notice to be given by the constable of the township. Election to be held at the schoolhouse at George White’s in Sparta township, the name to be White District.” It is conceded that said independent school district was thereupon organized and has been in existence ever since, a period of about fifty years, exercising all the functions and performing all the duties of such a school district.

On February 17, 1880, at No. 56, February Sessions, 1880, citizens of Sparta township petitioned the court to abolish the said independent school district. This petition was not based upon any alleged irregularities or defects in the original proceedings, but its prayer was to have the independent school districts abolished on other grounds as provided by the Act of Assembly of May 20, 1857, P. L. 588.

After a lengthy and careful hearing on the merits, by testimony and arguments of counsel for and against this application, the court .in a lengthy opinion dismissed the petition and decreed that the said independent school district be continued. It is conceded that the original proceedings in this case were under the Act of May 8, 1855, P. L. 509, the fifth section of which provides :

“ Section 5. That upon petition of not less than twenty taxable inhabitants of any township or townships, desiring the formation of the territory upon which they reside into a separate and independent common school district, and setting forth the bounds of such proposed district, the court of quarter sessions of the proper county shall appoint commissioners to view the premises and report to the court at its next term, the lines of the proposed new district, either according to the bounds set forth in the petition or to such other bounds as they shall think more advisable, together with their opinion on the expediency of establishing or not establishing the same, the proceedings upon which petition, commission and report, and the final disposition thereof shall, in all other respects, be according to the act of assembly now in force relative to the erection of new townships : Provided, That if said proceedings result in the establishment of a new common school district, the cost of the commission and the office fees shall be paid by the new said district, but if otherwise, said costs and fees shall be paid by the petitioners themselves.”

It seemed to be conceded and is clear that the act of assembly referred to in said section 5, “ now in force, relative to the erection of new townships,” is the Act of April 15, 1834, P. L. 537, section 14 :

■ “ Section 14. Upon application by petition to a court of quarter sessions, for the purpose of erecting a new township or altering the lines of any township, ‘ or of ascertaining and establishing the lines or boundaries of any township,’ the said court shall appoint three impartial men, if necessary, to inquire into the propriety of granting the prayer of the petition, and it shall be the duty of the commissioners so appointed or any two of them to make a plot or draft of the township proposed to be divided, and the division line proposed to be made therein, or of the township proposed to be laid off, or of the lines proposed to be altered of two or more adjoining townships, ‘ or of the lines proposed to be ascertained and established,’ as the case may be, if the same cannot be fully designated by natural lines or boundaries, all of which they or any two of them shall report to the next court of quarter sessions, together with their opinion of the same, and at the term after that at which the report shall he made the court shall take such order thereupon as to them shall appear just and reasonable.”

On December 14, 1904, the petition of twenty-eight citizens of Sparta township, outside of said independent school district, was filed in the original case, asking the court to abolish said independent school district on the ground of the irregularity and illegality in the original proceedings establishing.the same, and the court upon hearing filed a decree abolishing said independent school district on those grounds. The present appeal is from that decree.

The learned court seems to have based its action upon the want of notice being given before the making of the original decree, and because said decree was made, as the court contends, at a time prior to the time at which the law authorized it to he made. The court cites Independent School District No. 8, in Sewickley Twp., 83 Pa. 297. In that case the proceedings were under the act of May 8, 1855, and the decree was made establishing the district without any notice being given of the time and place the commissioners would view the premises. The Supreme Court held that want of notice was fatal to the proceedings. But in it exceptions were filed and the want of notice was promptly brought to the attention of the court, and the proceedings were duly removed to the Supreme Court. The Supreme Court also sustained the fifth exception, that:. “ The court erred in confirming the report of commissioners at the same term to which it was returnable, it appearing that the confirmation was made absolute within five days after the report of the commissioners was made,”

In Stowe Township Division, 23 Pa. Superior Ct. 285, we held: “ The act of 1834 relative to the division of townships is silent as to notice, but it has been authoritatively determined that the inhabitants have a natural right to a hearing before the commissioners, and, therefore, it is the duty of the commissioners to give notice.” But that is a case where the question was promptly raised by exceptions, while in the present case no exceptions were filed' and it does not affirmatively appear that the commissioners did not give notice, and we are strongly of the opinion, that in view of the fact that this independent district has existed and been recognized for about fifty years, it ought now to be presumed that the court was satisfied that the notice required by law had been given. It ought now to be presumed that the learned court would not have made the decree without satisfactory proof of notice.

The learned counsel for the appellee contends that an independent school district can only be created under the act of May 8, 1855, as defined by the Act of May 20, 1857, P. L. 588, and Hatfield Township School District, 2 Walker, 169, is cited to sustain the proposition that the original petition in the present case is fatally defective, because it does not comply -with the requirements of the act of May 20, 1857. But that proceeding was not begun until long after the passage of the act of 1857, and of course the act of 1855 and the act of 1857 must be construed together in such a case. But in the present case the proceeding was begun and consummated under the act of 1855, before the passage of the act of 1857, and, therefore, we are of the opinion that its legality does not depend at all upon the provisions of the act of 1857. That act is not retroactive as we view it.

As we understand the opinion of the Supreme Court in the Hatfield township case, it decides that the provisions of the act of 1857 are only applicable to cases arising since its passage and as to such cases, the two acts are to be read together; therefore, when that case holds that independent school districts can only be formed where they are necessary, not where they are expedient, it only refers to such as are formed since the act of May 20, 1857; Certainly section 5 of the act of 1855, does authorize the courts to establish independent school districts on the ground of expediency.

We then have the somewhat difficult question remaining that the decree was made in the present case prior to the term provided by the act of 1834. That act clearly requires the commissioners to “ report, to the next court of quarter sessions, together with their opinion of the same, and at the term after that at which the report shall be made, the court shall take such order thereupon as to them shall appear just and reasonable.”.

It is • contended that the terms of the courts of quarter sessions of Crawford county were, in 1855, “ on the second Mondays in February, April, August and November.” The petition was presented at the November sessions. The commissioners were appointed November 25, 1855. It is not clear by the record before us when the report of the viewers, with the plot of the district, was filed. But it is dated the January following the date of their appointment, and was confirmed absolutely at the April term of 1856, and we are disposed to assume that the report was filed at the February term of 1856, and if so, the confirmation was regular.

The independent school district having been recognized as legal and valid by all of the interested parties for about fifty years, the courts ought not now to be astute in endeavoring to discover that the learned court below made the decree establishing the district at the same term to which the commissioners reported. We will not convict the court of a palpable violation of the provisions of the acts of 1855 and 1834, in that respect, on the record as it appears before us. We, therefore, conclude that the learned court erred in its decree vacating and annulling the White independent school district. This view makes it unnecessary to discuss the question of estoppel raised by the appellant, based upon the proceedings of 1880, hereinbefore referred to.

We incline to the opinion, however, that there is considerable merit in the contention based on the action of the court upon the petition of February, 1880, asking to abolish the said independent district, and the decree of the court refusing the prayer of the petition, and continuing the district.

It is true that one of- the petitions was upon the merits, and the one now under consideration is based upon alleged illegalities, but all of these questions could have been raised in the one petition, and all of the inhabitants of Sparta township might have joined in that petition, if they had seen fit.

But not having done so, and raised all of the questions that might have been placed before the court in 1880, we are inclined to the opinion that they now come too late with their alleged irregularities and illegalities in the original proceeding. We think the court in 1855 and 1856 had jurisdiction of the subject-matter, and that the proceedings creating the district in question, were not void, and that any irregularities or illegalities appearing therein, ought to have been raised by exceptions.

The assignments of error are sustained and the decree is reversed at the costs of the petitioners, and the original decree of April 11, 1856, is reinstated.


text:
    Britton Run Independent School District.
    Argued May 21, 1906.
    Appeal, No. 34, April T., 1906, by Britton Run Independent School District, from order of-Q. S. Crawford Co., Feb. T., 1856, No. 51, abolishing independent school district In re Britton Run Independent School District.
    Before Rice, P. J., Porter, Henderson, Morrison, Or-lad y, Head and Beaver, JJ.
    Reversed.
    Petition to abolish independent school district. Before Thomas, P. j.

      George W. SasTcins, With him John O. MeOlintoeTc, for appellant.

      Thomas J. Prather, for appellee.
    June 30, 1906:
   Opinion by

Morrison, J.,

The questions in this case are substantially like those in White Independent School District of Sparta township, Crawford county, Pennsylvania, in which we have this day filed an opinion, ante, p. 205, reversing the decree of the court below and reinstating the original decree. And for the reasons given in that opinion, we must sustain the assignments of error in this case. It must, however, be conceded that the fact that the petition was presented at one term, the commissioner’s report at the next, and the final confirmation at the next, does not so clearly appear in the present case as in the former. But upon the entire record, as we understand it, it is now too late to reverse the original decree for alleged irregularities and illegalities which might have been fatal on exceptions, filed at the proper time.

The assignments of error are sustained and the decree is reversed at the costs of the petitioners, and the original decree of April 11, 1856, is reinstated.


author: Henderson, J.,

text:
    Lazzari, Appellant, v. Lazzari.

      Judgment — Payment—Partnership—Evidence.
    On the trial of an issue to determine what, if anything, was due upon a judgment entered on a judgment .note, the case is for the jury and a judgment and verdict for the defendant in the judgment will be sustained, where the evidence for the latter, although contradicted, tended to show that the debt represented by the judgment had been fully discharged by the settlement of a partnership business, and a delivery by the defendant to the plaintiff of the latter’s interest in the business which had been carried on in the defendant’s name.
    Argued April 17, 1906.
    Appeal, No. -62, April T., 1906, by plaintiff, from judgment of C. P. Washington Co., Feb. T., 1904, No. 121, on verdict for defendant in case of Guiseppe Lazzari v. Louis Lazzari.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Issue to determine the validity of a judgment.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were various rulings on evidence, and the refusal of binding instructions for the plaintiff in the judgment.

      T. F. Birch, with him Greorge L. Schuyler, for appellant,
    cited: Velott v. Lewis, 102 Pa. 326 ; Russell v. Miller, 54 Pa. 154; Sennett v. Johnson, 9 Pa. 335; Wharton v. Douglass, 76 Pa. 273; Laughlin v. Conn, 191 Pa. 150; Gilkyson v. Larue, 6 W. & S. 213.

      Call E. Gibson, of McIlvain, Vance & Gibson, for appellee.
    June 30, 1906 :
   Opinion by

Henderson, J.,

The first four assignments of error relate to the admissibility of evidence. The relevancy of the portions objected to depends upon the question at issue and this is ascertained b} reference to the petition and answer. The defendant in the judgment alleged that he had settled in full with the plaintiff for all debts and claims existing on December 1, 1902 ; that no part of, the debt secured by the note on which the judgment was entered remained unpaid and that the payee of the note when asked to deliver it to the maker said that be had destroyed it. The plaintiff in the judgment denied these allegations and the case was tried on the issue so formed. The maker of the note asserted that it was given for a partnership interest in a firm then formed, composed of the maker of the note, the payee and their brother, Peter. The former had been carrying on the business for about three years in his own name, and when his brothers came from Italy he gave them an interest in the business for which each of them paid a sum of money. Inasmuch, however, as it was deemed advisable to carry on the business in the name of the appellant as it had been before the partnership was formed and no articles of association were signed, Guiseppe and Peter desired evidence of their interest in the firm until their title was otherwise made to them. The interest of Guiseppe was fixe'd at the amount of the note. According to the theory of the appellee this arrangement was to continue until there was a division of assets or the appellant was otherwise satisfied in regard to his share of the business. It was shown that the partnership was dissolved and the firm assets, except uncollected accounts, divided December 2, 1902, at which time an agreement in writing was entered into by the three partners wherein it was agreed among other things, “ All previous business heretofore existing between the parties herein named is by this instrument in writing settled and forever closed.” The appellee’s allegation was that by the delivery of his share of the firm assets to the appellant the obligation of his note was met and discharged and from-his point of view the evidence objected to was relevant. The mode of attaining the object sought was not a usual one, but was the same as that resorted to by the parties at another time, and if it was the agreement that Guiseppe would accept the note of Louis in place of written articles of partnership no legal objection exists against such a mode of attaining the desired end. If Guiseppe got his interest out of the firm and the transaction was as claimed by Louis, he received the consideration for the note. While the allegation of the appellee is denied by the appellant the case is not one simply of oath against oath, for the agreement of December 2, 1902, strongly corroborates the appellee. The appellant alleges that it was not intended to apply to any individual transaction, but it is broad enough in its terms to cover the transaction as contended for by the appellee. The testimony of Mr. Williams, who witnessed the agreement, also supports the plaintiff’s claim that the contract was intended to include all their business. It is also shown that Guiseppe and Peter gave to Louis on the date of the agreement their note for $3,872.24 to secure him against the debts of the firm, which were all contracted in his name. There was also some evidence that Guiseppe did not possess $780 at the date of the note. In connection with the other evidence the fact is also significant that no steps were taken to collect the note for about ten years after it became due, notwithstanding the fact that business transactions had taken place between the parties during that period. While the evidence of the appellee is contradicted by the appellant, and to a considerable extent by Peter, an issue of fact is raised which might well induce a chancellor to consider the question involved so doubtful as to call for the opening of the judgment. The defense in the judgment was not, therefore, an allegation of failure of consideration but an averment that the consideration had been fully discharged by settlement of the partnership business and a delivery by the appellee to the appellant of the latter’s interest in the business which had been carried on in the appellee’s name.

In this view of the case the charge of the court is free from criticism. The jury was fully instructed as to the burden of proof and the charge of the court indicates that the counsel engaged in the trial of the case were in accord upon the question of the degree of evidence required. The substance of the appellee’s claim was that he had turned over to the appellant the latter’s interest in the firm in satisfaction of the obligation, and upon that he is corroborated to a material extent. After a careful examination of the voluminous evidence brought up on the appeal we are unable to conclude that the court erred in. admitting the evidence and giving the instructions complained of.

The judgment is, therefore, affirmed.


text:
    McConahy v. Western Allegheny Railroad Company, Appellant.
    , Equity — Trespass—Injunction—Evidence.
    A court of equity will restrain by injunction the commission of a trespass which by reason of its character or the persistency with which it is repeated will become or threatens to become of a permanent nature.
    On a bill in equity to restrain a continuing trespass, it is not incumbent upon the complainant to set forth in his bill the evidence upon which he relies to show that the trespass was committed on his land. Such evidence is admissible at the trial, although not set forth in the bill.
    ■ Appeals — Assignments of error — Practice, S. C.

    An assignment of error which sets forth two distinct orders of court is in' violation of the rules of court.
    An assignment of error which avers error in granting an injunction is insufficient if it does not set forth the decree itself.
    Argued May 16, 1906.
    Appeal, No. 134, April T., 1906, by defendant, from decree of C. P. Lawrence Co., March T., 1906, No. 2, on bill in equity in case of Alexander T. McConahy v. Western Allegheny Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Porter, P. J.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were (1-4) rulings on evidence; (5) decrees granting and continuing injunction setting forth both decrees and (6) that “ the court erred in granting and in continuing the preliminary injunction to the final hearing.”

      J. Norman Martin, for appellant.
    — We submit that the bill does not contain sufficient averments to confer jurisdiction in equity: Fisher v. Philadelphia, 75 Pa. 392; Kennedy v. Skeer, 3 Watts, 95 ; Sheik v. McElroy, 20 Pa. 25 ; McBarron v. Gilbert, 42 Pa. 268; Wallace v. Elder, 5 S. & R. 143 ; Cahill v. Benn, 6 Binney, 99; Hunt v. McFarland, 38 Pa. 69; North Penna. Coal Co. v. Snowden, 42 Pa. 488; Norris’s App., 64 Pa. 275; Tillmes v. Marsh, 67 Pa. 507; Duncan v. Iron Works, 136 Pa. 478; Thomas v. Hukill, 131 Pa. 298; Washburn’s App., 105 Pa. 480 ; Grubb’s App., 90 Pa. 228 ; Lewis v. Cocks, 90 U. S. 466.

      C. H. Akens, with him H. A. Wilkison, for appellee.
    — The bill sufficiently describes the lands and distinctly informed defendant of the nature of the case it was called upon to meet. A statement of the facts is all that is necessary. It is not required that the bill contain the evidence of the facts: Winebrenner v. Colder, 43 Pa. 244; Barbey’s App., 119 Pa. 413 ; Finley’s Est., 196 Pa. 140 ; Walters v. McElroy, 151 Pa. 549 ; Keppel v. Lehigh Coal & Navigation Co., 200 Pa. 649 ; Riegel v. American Life Ins. Co., 153 Pa. 134; Bussier v. Weekey, 11 Pa. Superior Ct. 463 ; Mazet v. Pittsburg, 137 Pa. 548; Roanoke St. Ry. Co. v. Hicks, 5 Am. & Eng. Dec. in Equity, 483.
    The fifth assignment offends against Rule XIY, as it embraces the decree of January 19, 1906, and the decree of February 5, 1906: Erie City v. Grant, 24 Pa. Superior Ct. 109; Wabash Ave., 26 Pa. Superior Ct. 305.
    This assignment does not quote or set out the order or decree of the court referred to: Benzinger Twp. Road, 135 Pa. 176; Landis v. Evans, 113 Pa. 332.
    June 30, 1906 :
   Opinion by

Henderson, J.,

. The complaint set forth in the plaintiff’s bill is that the defendant entered upon his land by repeated trespasses and is erecting an abutment of a bridge and a roadbed thereon and that it threatens and intends to permanently hold and occupy that part of the plaintiff’s land on which it is constructing its roadbed and erecting the abutment referred to. It is specifically averred that the trespass complained of was committed on the plaintiff’s land at a place south of a piece of land 215 feet in width which the plaintiff had theretofore conveyed to the defendant and the evidence offered in support of the application for a preliminary injunction sustains the allegation of the bill. It is averred and not denied that the land south of that point is the property of the complainant and the evidence clearly shows that one of the abutments of the bridge in process of erection is more than 215 feet south of the north line of the plaintiff’s original tract. The plaintiff’s title to his land is not in dispute nor does it appear that there is any question as to the location of the south line of the land held by the defendant. It is not denied that the bridge abutment is more than 215 feet south from the north boundary of the plaintiff’s laudas he held prior to the conveyance to the defendant and a prima facie case of interference is, therefore, presented. It has passed beyond the range of debate that a court of equity will restrain by injunction the commission of a trespass which by reason of its character or the persistency with which it is repeated will become or threatens to become of a permanent nature. This is the uniform course of adjudication as will be seen by reference to many cases, among which are Masson’s Appeal, 70 Pa. 26 ; Walter v. McElroy, 151 Pa. 549; Keppel v. Lehigh Coal & Navigation Co., 200 Pa. 649; Bussier v. Weekey, 11 Pa. Superior Ct. 463. The first four assignments of error relate to the admission of testimony. This evidence was competent under the bill and in direct support of the plaintiff’s complaint. It was not incumbent on the appellee to set forth the evidence upon which he proposed to rely to show that the trespass was committed on his land, and his testimony and that of the surveyor that the pier was located south of the land conveyed by him was admissible. The fifth assignment violates rule XIV. in that it embraces two subjects, to wit: a decree of the court made January 19, 1906, and a decree made February 5, 1906, in one assignment and the sixth assignment does not contain the decree to which exception is taken. These assignments might, therefore, be disregarded. We are satisfied, however, that, on the case presented, the court was justified in making the order complained of. As the appeal is from the granting of a preliminary injunction we refrain from entering into a discussion of the merits of the case. That can be done if necessary after the defendant’s case has been presented on final hearing.

The decree is affirmed and the appeal dismissed at the cost of the appellant.


author: Pouter, J.,

text:
    Anspach, Appellant, v. Lightner.

      Deed — Will—Consideration—Life estate.

    Where a writing is a formal conveyance of real estate in fee reserving the property to the grantor “ as long as she lived,” but with no reservation in the habendum, and extraneous evidence shows that the object of the grantor was to compensate the grantee for services rendered or to be rendered to her, and that she understood what the effect of the delivery of the instrument would be, and that she directed the scrivener to keep possession of the paper, the paper will be construed to be a deed, and not a will.
    Argued Nov. 13, 1905.
    Appeal, No. 34, Oct. T., 1905, by plaintiffs, from decree of O. C. Berks Co., on appeal from register of wills, reversing the .action of the register in refusing to admit a will to probate in estate of Elemina Schlaseman, deceased.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Appeal from register of wills. Before Bland, P. J.
    The facts appear by the opinion of the Superior Court.

      Error assigned was decree reversing the register.

      John M. Frame, with him D. Nicholas Schaeffer and Chas. K. Derr, for appellant.
    — If the instrument possesses all the elements of a contract the fact that the time of performance is fixed at the testator’s death, or a given time thereafter, does not make it a will: Page on Wills, page 55, edition 1901; Beatty v. College, 177 Ill. 280 ; Hegeman v. Moon, 131 N. Y. 462 ; Wolfe v. Wilsey, 2 Ind. App. 549; Krell v. Codman, 154 Mass. 454.
    This distinction has been made in many cases, among which are the following, which hold that a conveyance of property subject to the reservation of a life estate is a deed passing a present interest: Book v. Book, 104 Pa. 240 ; Cable v. Cable, 146 Pa. 451; Knowlson v. Fleming, 165 Pa. 12.

      William Miele, with him Henry P. Keiser, for appellee.
    — Instruments conforming to and described as deeds, indentures, articles of agreement, letters of attorney, have been established through extrinsic evidence as wills, and as such admitted to probate : Kisecker’s Estate, Harter’s Appeal, 190 Pa. 476, 478.
    A deed which in terms was not to be operative until after the testator’s death has been held to be testamentary: Turner v. Scott, 51 Pa. 126.
    The form of the instrument is immaterial if its substance is testamentary. Whether the writing is a will or not does not depend upon the maker’s declaring it to be a will at the time he executed it, but upon its contents: Turner v. Scott et al., 51 Pa. 126-134; Patterson v. English, 71 Pa. 454; Frew v. Clarke, 80 Pa. 170; Rife’s Appeal, 110 Pa. 232; Brown v. Mattocks, 103 Pa. 16 ; Kisecker’s Estate, 190 Pa. 476; Diehl’s Estate, 11 Pa. Superior Ct. 295 ; Coulter v. Shelmadine, 204 Pa. 120.
    The disputed instrument has the fundamental essentials of a will: Mack and Person’s Appeal, 68 Pa. 231; Frederick’s Appeal, 52 Pa. 338.
    June 30, 1906:
   Opinion by

Pouter, J.,

The instrument which the orphans’ court decreed to be a will was not merely testamentary, but a conveyance, in substance as it was in form. The consideration was stated to be the sum of $5.00, “ to her in hand paid by the said Frank Lightner, the receipt whereof is hereby acknowledged, and also of the natural love and affection which she, the said Elemina Schlaseman, widow as aforesaid, hath and beareth unto the said Frank Lightner, her next best friend, and also for the better maintenance, support and livelihood of him, the said Frank Lightner, her next best friend.” The deed was a formal conveyance in fee of two tracts of land, and while there were injected into the granting clause certain covenants and provisions with regard to the personal property of the grantor, the only exception, reservation or condition as to the land was in those words, “ the said property as aforesaid, to be and remain the property of the said Elemina Schlaseman, as long as she lived,” which appeared in the granting clause. The habendum and the covenant of warranty are absolutely without exception, reservation or limitation. The life estate thus excepted out of the grant is not inconsistent with the passage to the grantee of an interest or title, and the deed may thus be supported upon the principles laid down by Sharswood, J., in Eckman v. Eckman, 68 Pa. 460. This instrument would, the moment it was delivered, have vested in the grantee an estate in the land, to be enjoyed after the death of the grantor; it was, therefore, a deed and not a testamentary paper: Eckman v. Eckman, supra ; Waugh’s Executors v. Waugh, 84 Pa. 350 ; Book v. Book, 104 Pa. 240; Dreisbach v. Serfass, 126 Pa. 32; Cable v. Cable, 146 Pa. 451; Knowlson v. Fleming, 165 Pa. 12. These authorities rule the present case, which is clearly distinguishable from Turner v. Scott, 51 Pa. 126, in which the instrument passed upon contained this provision, “ this conveyance is in no way to take effect till after death,” and the like limitation in the habendum.

The extrinsic evidence is only confirmatory of this conclusion. The justice of the peace who wrote the instrument testified that when Mrs. Schlaseman came to his office for the purpose of having the paper drawn he asked her if she wanted to have a will made and “ she answered that she didn’t want to have a will made, that she wanted to have a paper more binding than a will; and then I asked her that in such a case she would have to — a consideration should be made, or stipulated in the- paper; and she remarked then that Mr. Lightner was going to purchase this property from her for §5.00; but this paper should stipulate that the property in the meantime should remain in her possession until her death, and why she-was going to make this paper, so as to compensate Mr. Lightner for the services that he rendered her or was to render her during her lifetime or as long as she lived.” The pecuniary consideration named in the deed, $5.00, was actually paid at the time. The justice of the peace further testified, “After the paper was executed and signed, she told me, now, you keep this paper in your possession until I call for it, and give it to no one, no difference who applies for it, give it to no one, not to Mr. Lightner, he was present, give it to no one, not even to Mr. Lightner, so that if I want to make any changes I can.” This clearly indicated that the decedent knew that if she delivered that paper to Lightner her power to change it would be at an end. The fact that the decedent retained control of the paper and postponed its delivery does not justify the inference that she intended that it should take effect as a will. One of her reasons for executing the conveyance was to compensate Lightner for services which he was to render in the future, during her lifetime as long as she lived ; it was natural for her to hesitate before delivering a deed which would have vested in Lightner an estate in remainder in all the property until satisfied that it would be prudent to do so. The testimony clearly established that the decedent understood that if the instrument in question was delivered it would be something, in her language to the scrivener, “ more binding than a will.” Lightner also understood that the paper was not a will, for it is an undisputed fact that he declared, after the death of Mrs. Schlaseman, that he had bought all the property.

The decree of the orphans’ court admitting to probate the writing dated June 8, 1898, is reversed.


author: Rice, P. J.,

text:
    Shinzel v. Bell Telephone Company of Philadelphia, Appellant.

      Telephone company — Damages to landowner — Municipal use — Eminent domain.

    The erection of telephone poles and wires in city and borough streets, under charter rights, with municipal consent, and in conformity to municipal regulations, is not in itself an additional burden for which the owner of the fee is entitled to compensation. It follows from this, that unsightliness of the poles, and noises which are the ordinary incident of the lawful and non-negligent maintenance of the poles and wires and the conduct of the business, do not constitute a special injury for which damages are recoverable; but appreciable interference with light, air, access or drainage is an additional burden to which the land of the abutting owner cannot be subjected without rendering to him just compensation.
    In an action against a telephone company by a landowner claiming to recover injury to his drainage by reason of the erection of a telephone pole, the question of the alleged injury will not be submitted to the jury where the only evidence on the subject is, that water backed into the plaintiff’s cellar, and that the pole was erected within about eight inches of the drain, without anything to show a connection between the two conditions. An additional ground for such ruling is found where there is no evidence as to the specific amount of the loss caused by the injury to the drainage.
    Where a large telephone pole designated as distributing pole of a diameter of sixteen inches is planted opposite to kn alley, at a point distant from the house line between nine and ten feet, and it appears that by reason of the pole it was impossible to take long pieces of timber and lumber through the alley for the purpose of repairs and alterations, the owner is subjected to an injury that is not temporary, and for which he is entitled to damages.
    Argued Dec. 11, 1905.
    Appeal, No. 100, Oct. T., 1905, by-defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1901, No. 1,595, on verdict for plaintiff in case of Charles Shinzel v. Bell Telephone Company of Philadelphia.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Trespass to recover damages alleged to have been suffered by the erection of a telephone pole. Before Bregy, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows :
    [If the erection of this pole injured Mr. Shinzel in that it deprived him of the light and air that he otherwise would have had, that it interfered with the comfort of his house by reason of noises from what is called the drum, if it interfered with the use of his alley, and caused dampness in the cellar, ¿e is entitled to be compensated for that. You are to fix that compensation with the light of the evidence upon that subject.] [4]
    [Mr. Hasson was the only man who testified upon that subject, and he has attempted to give you what he thought the damages are and the reasons therefor. You are to determine whether the reasons appeal to your judgment and whether they are to be followed to their conclusion.] [5]

      If the erection of the pole did not damage Mr. Shinzel, of course he has no cause of action here, and the verdict ought to be against him.
    Defendant presented these points :
    1. A telephone company, duly incorporated under the laws of Pennsylvania, and authorized by ordinance of councils of the city of Philadelphia, to erect poles and wires in the conduct of its business on its public streets, may locate a pole for such purpose with the assent of the city authorities on a public street in front of the property of a private owner, without being responsible to such owner for damages. Answer: Refused. [1]
    2. The erection of poles and wires on the'streets of the city of Philadelphia by a telephone company, duly incorporated for that purpose, and duly authorized by ordinance of councils of the city to erect such poles and wires, may be made at such points on the streets as shall be approved by the proper city authorities. Such erection is not an easernent for which the property owner has any right to recover. Answer: Refused. [2]
    3. Your verdict should be given for the defendant. Answer: Refused.
    Yerdict and judgment for plaintiff for $950. Defendant appealed.

      Errors assignedwere (1-5) above instructions, quoting them.

      John Cr. Johnson, for appellant.
    — A telephone company in cities, towns and boroughs, may locate its poles and wires on public streets without any liability for damages because of the taking of the property of the abutting owner: Livingston v. Wolf, 136 Pa. 519; Penna. Telephone Co. v. Hoover, 209 Pa. 557; Lockhart v. Ry. Co., 139 Pa. 419; Sterling’s App., 111 Pa. 35; Rafferty v. Central Traction Co., 147 Pa. 579; York Telephone Co. v. Keesey, 5 Pa. Dist. Rep. 366; Penna. R. R. v. Montgomery Co. Pass. Ry., 167 Pa. 62; Dempster v. United Traction Co., 205 Pa. 70.
    A telephone company which locates its poles and wires in cities, towns or boroughs, is only liable for such damages as will be occasioned the abutting owner, by interference with access to his property, or by depriving him appreciably of light or air, or by inflicting some physical injury in or by means of the construction: McDevitt v. Gas Co., 160 Pa. 367; Provost v. Water Co., 162 Pa. 275.
    A telephone company is not responsible for damages resulting from the doing of its business in a proper way, In the operation of its poles and wires: Penna. R. R. v. Lippincott, 116 Pa. 472; Penna. R. R. v. Marchant, 119 Pa. 541; Jones v. R. R., 151 Pa. 30; Penna. Co. for Ins., etc. v. R. R., 151 Pa. 334; Hartman v. Incline Plane Co., 159 Pa. 442.
    It is error tó permit a jury to allow damages for alleged injuries by the construction of poles and wires in particulars where there is no proof of the fact of damage or where there is no testimony as to the amount of the damage.
    It is error to instruct a jury that it may find a verdict based upon an estimate of damages given by a witness who admits that such estimate rests upon a basis, which basis was improper.

      John A. Clark, for appellee.
    — A telephone company has the right of eminent domain upon the streets of a city: Penna. Telephone Co. v. Hoover, 24 Pa. Superior Ct. 96; Pfoutz v. Penna. Telephone Co., 24 Pa. Superior Ct. 105 ; Brown v. Electric Light Company, 208 Pa. 453.
    Under the provisions of section 8, of article 16, of the constitution of the state of Pennsylvania, the owner of a property on a public street in a city is entitled to just compensation from a telephone company, which under the right of eminent domain, has injured his property by the construction of its works in the erection of a terminal pole in front of his dwelling house.
    June 30, 1906:
   Opinion by

Rice, P. J.,

The plaintiff is the owner of a lot, with a three-storied dwelling house thereon, situate on the east side of Lawrence street, in the city of Philadelphia, and under his deed has the right to the use of, and the right to build over, an alley, twenty-two inches in -width, laid out and opened for the accommodation of his premises and the adjoining premises on the north. At the height of about seven feet the houses upon these two lots project over this alley and adjoin.

The defendant was duly chartered under the laws of this commonwealth, and authorized by the ordinances of the city to run and maintain its wires over and through the streets of the city, for the purpose of rendering telephone service to the public.

In 1900, under a permit duly issued in accordance with the city ordinances, the defendant erected between the house line and the curb, and directly in front of the entrance to the alley, a terminal, or, as sometimes designated, distributing, telephone pole, sixteen inches in diameter at the sidewalk, about fifty-nine feet high, and distant from the house line between nine and ten feet. Alongside the pole is a metal tube in which cables are carried up, and at the top the wires, which radiate in different directions, are protected by an iron hood or drum.

We do not understand it to be disputed that in height, diameter, location and other particulars the pole conforms substantially to the permit, and to the regulations of the department of public safety therein referred to ; at any rate, no variance of that kind is set up, either in the pleadings or in the appellant’s brief, as a ground of recovery. Nor do we find in the plaintiff’s statement of claim any specific averment of negligent or improper construction or operation, and no evidence was adduced to support such averment, unless it be that which relates to the drainage pipe.

Before discussing the main question we shall consider the evidence bearing upon the alleged interference with the drainage as an element of the damages recoverable in this action. It is necessary to consider this question, because the learned judge charged the jury (fourth assignment) that if the erection of the pole injured the plaintiff, in that it caused dampness in the cellar, he was entitled to be compensated for that. There was evidence that owing to something wrong with the plaintiff’s drain the water backs into his cellar. He testified : “ I say our drainage pipe must be broken with this pole, or by this pole, and the drainage goes back again in our cellar.” His witness, Mallo, who is a plumber, testified that he thought a vent box running down to the trap had been broken, but later, when asked to give his reason for this belief, he answered: “ Well, they had had water in the cellar constantly, and therefore I think there was something wrong with the drain.” He testified further that the drain is within about eight inches from‘the pole, and that he did not dig down to ascertain the cause and location of the leak, because he feared, if he “ dug up the pavement it might cave in, and the pole might slide and cause a lot of trouble.” The evidence above summarized would, perhaps, warrant a finding that the backing of the water was due to a defect in the drain, and is reconcilable with the plaintiff’s theory that the pipe was broken by the defendant’s employees in setting the pole in the ground, or in making the excavation therefor. But it is not enough that the testimony may be reconciled with his theory; it is also reconcilable with other theories, as shown by the cross-examination of the witness Mallo. True, the plaintiff expressed a positive opinion as to the cause of the backing of the water. But he was not qualified to testify as an expert, even if the subject of inquiry was open to the introduction of expert testimony. Therefore, his conjecture or opinion does not add to the probative value of the facts testified to. We do not say that the fact that the pipe was broken in the manner last stated could not be established by circumstantial evidence. Unquestionably it would be competent for a jury to find the fact from that kind of evidence, and that, too, notwithstanding the direct and positive testimony to the contrarjr of the defendant’s witness who superintended the erection of the pole. But the burden of proof was on the plaintiff. It is not a case where the maxim res ipsa loquitur applies. The facts that water backs into the plaintiff’s cellar, and that the pole was erected within about eight inches of the drain, are well supported by testimony, but the connection between the two conditions is left to conjecture. These facts, without more, do not furnish ground for inferring with reasonable certainty that the pipe was broken by the defendant in the manner alleged. “ Since the scintilla doctrine has been exploded, both in England and in this country, the preliminary question of law for the court is, not whether there is literally no evidence, or a mere scintilla, but whether there is any that ought reasonably to satisfy the jury that the fact sought to be proved is established. If there is evidence from which the jury can properly find the question for the party on whom the burden of proof rests, it should be submitted; if not, it should be withdrawn from the jury : ” Hyatt v. Johnston, 91 Pa. 196. Applying this well-settled rule, we are of opinion that the question of the defendant^ liability for the dampness of the plaintiff’s cellar ought not to have been submitted to the jury. Another objection urged against submitting the question to the jury is, that no evidence was introduced from which the jury could determine the pecuniary loss suffered by the plaintiff in consequence of this specific injury. This objection has not been satisfactorily answered, and as the case must go back for retrial, it is proper that we should consider it. The only evidence adduced by the plaintiff upon the question of damages was as to the depreciation of the property in market value. This is the proper measure of damages for a permanent injury, but we think the evidence would not warrant a finding that the specific injury under discussion was of that nature. Assuming that there was a break in the pipe and that the defendant is liable in damages for it, and for the consequent flooding of the plaintiff’s cellar, this was an injury of a temporary and remediable nature, and the measure of damages upon that score would be the cost of remedying it and compensation for the loss, or impairment, of the use of the premises meantime. We find no evidence as to the amount of such damage; therefore the objection is sustained. A third objection is, that interference with drainage is not specified in the statement of claim as a ground of recovery. But the substantial cause of action was the injury to the plaintiff’s premises by the erection and maintenance of the pole. Having set forth certain particulars in which his enjoyment and use of them was impaired, he adds, “ and in various other ways.” This was notice to the defendant that such damage as naturally or necessarily arose from the act complained of would be claimed, and even at common law the general rule was, that under the allegation of “ other wrongs,” etc., damages and matters which naturally arose from the act complained of could be given in evidence. This subject is very fully discussed and the authorities relating to it are cited in Martachowski v. Orawitz, 14 Pa. Superior Ct. 175. We are not prepared to say that the rule under our statutory system of pleading is stricter. Doubtless, if a bill of particulars had been applied for, the plaintiff . would have been required to furnish it. But as the defendant, without making such application, pleaded the general issue, the objection that the statement of claim is not broad or specific enough to support a recovery for interference with the drainage, if that was the natural result of locating the pole in that place, ought not to be sustained after a trial on the merits. Whatever may be the rights of a telephone company in the streets of a city, the right to interfere materially with the drainage of the premises of an abutting owner against his consent, and without compensating him, is not one of them. See Penna. Schuylkill V. R. R. v. Ziemer, 124 Pa. 560; Chatham Street, 191 Pa. 604. The plaintiff’s priority of occupancy of the subsurface of the street with his drain gives him standing, which he would not have otherwise : Provost v. New Chester Water Co., 162 Pa. 275. Our conclusion that interference with drainage was not to be considered by the jury as an element of the damage recoverable in this action is based, not upon the ground that it is damnum absque injuria, nor upon the insufficiency of the statement of claim, but upon the insufficiency of the evidence.

The plaintiff claimed further that the pole is an injury to him, in that it (1) deprives him of the light that otherwise he would have; (2) impairs access to his premises through the alley; (3) interferes with the comfort>of his house by reason of noises from what is called the drum. It is argued by the appellant that owing to the position of the pole it cannot affect the light of the premises at any season of the year or at any hour of the day. But the plaintiff testified positively from his experience and. observation before and after the erection of the pole that it does darken some of his windows nearest to it. We cannot say that this testimony was so obviously absurd that the court ought to have withheld the question from the jury. In support of the allegation of interference with access, the plaintiff showed that, by reason of the narrowness of the entrance to the alley and the position of the pole directly in front of it, it was impossible to take very long pieces of timber and lumber through it for the purpose of- certain repairs and alterations he made in the rear. This testimony based on actual experiment shows, not only the inconvenience the plaintiff was put to on that particular occasion, but also that access to his premises will be interfered with so long as the pole is maintained in its present position. Therefore it is not a mere temporary injury that is alleged. The impairment of access may not be very serious, but it is not so slight that the law will not take cognizance of it. The testimony is to the effect that, owing to the hood or drum at the top of the pole which protects the wires, whistling and humming sounds are produced when the wind blows which are annoying to the inmates of the house. But we find no evidence that this is due to negligent or improper construction or operation. For aught that is alleged in the pleadings or shown by the evidence, it is an ordinary incident of the lawful and nonnegligent maintenance of the pole and wires for the purpose of the business the defendant’s charter authorizes it to conduct. Another ground— though not specifically mentioned in the statement of claim— upon which the plaintiff claimed the right, and was permitted, to recover, is that a terminal or distributing telephone pole of the size and height of this one is an unsightly object — a disfigurement of the premises in front of which it is maintained— and that by reason thereof the market value of the plaintiff’s premises was lessened. Indeed, the only witness called by the plaintiff, who testified as to the amount of the pecuniary damages, admitted upon cross-examination that this was the principal ground for his estimate of the depreciation. It is true the learned judge did not expressly mention this as an element of the damages recoverable in the action, but that the jury were justified in supposing that they could so consider it is apparent from this except from the charge, which is the subject of the fifth assignment: “ Mr. Hasson was the only man who testified upon that subject (compensation for damages), and he has attempted to give you what he thought the damages are and the reasons therefor. You are to determine whether the reasons appeal to your judgment and whether they are to be followed to their conclusion.”

The right of the defendant to erect and maintain the pole and wires as part of its telephone system without the consent of the plaintiff, upon making or securing just compensation, is not disputed; it is argued by his counsel that the defendant possesses the right of eminent domain as to his land lying within the limits of the street, and this view of the law is in harmony with Penna. Telephone Co. v. Hoover, 24 Pa. Superior Ct. 96; s. c., 209 Pa. 555, and Pfouts v. Penna. Telephone Co., 24 Pa. Superior Ct. 105. But this is not the point upon which the case turns. Proof that, by reason of the construction and operation of its works by a corporation invested with the privilege of taking private property for public use, property of another in proximity thereto is worth less than it was before the construction, does not, standing alone, establish liability of the corporation to respond in damages to the extent of the depreciation: Penna. R. R. Co. v. Lippincott, 116 Pa. 472; Penna. R. R. Co. v. Marchant, 119 Pa. 541. But it is argued that in this case there was a taking within the meaning of section 8, article 16, of the constitution, and therefore the defendant is liable for all the damages, direct and consequential, resulting therefrom. And, applying the doctrine of analogous cases, there would be such liability if this were a country road. “ By appropriating land for the specific purpose of a common highway, the public acquires a mere right of passage with the powers and privileges incident to such right. The fee still remains in the landowner notwithstanding the public have acquired a right to the free and uninterrupted use of the road for the purpose of passing and repassing; and he may use the land for his own purposes in any way that is not inconsistent with the public easement. He may, for example, construct underneath the surface passage ways for water and other purposes, or appropriate the subjacent soil and minerals if any, to any use he pleases, provided he does not interfere with the rights of the public. In other words, the only servitude imposed on the land is the right of the public to construct and maintain thereon a safe and convenient roadway, which shall at all times be free and open for public use as a highway. It is in view of this servitude that damages may be awarded to the landowner. Laying and maintaining a pipe line, at the ordinary depth under the surface, necessarily imposes an additional burden on the land, not contemplated either by the owner or by the public authorities, when the land was appropriated for the purpose of a public road. It is a burden, moreover, which to some extent, at least, abridges the rights of the landowner in the soil traversed by the road, and hence it is a taking within the meaning of the constitutional provision requiring just compensation to be made for property taken, injured, or destroyed. (Const, art. XVI., sec. 8.) In some cases it is possible the injury may be consequential as well as direct. The constitutional provision embraces both: ” Sterling’s Appeal, 111 Pa. 35. The principle has been recognized in many other cases, including: Shevalier v. Postal Telegraph Co., 22 Pa. Superior Ct. 506, and Penna. Telephone Co. v. Hoover, 24 Pa. Superior Ct. 96, and is the settled rule in this commonwealth with respect to public roads in rural districts. But in the same case in which the rule was stated in the language above quoted, Justice Stbbbett said: “As to streets and alleys in cities and boroughs, there are reasons why a different rule to some extent should prevail; but that question is not before us.” There is abundant authority for this distinction, and for saying as we did in Cooke v. Central District, etc., Telegraph Co., 21 Pa. Superior Ct. 43, that a street in a city or borough is subject to a greater servitude in favor of the public than a road in the open country. For example, it has been held that the construction of a street passenger railway, when authorized by law, and municipal ordinance, upon a city or borough street, does not impose an additional servitude upon the property fronting on the street: Lockhart v. Craig St. Ry. Co., 139 Pa. 419; Rafferty v. Central Trac. Co., 147 Pa. 579; Thomas v. Inter-County Street Ry., 167 Pa. 120, while in townships it is an additional servitude to which the land of the abutting owner cannot be subjected without his consent: Penna. R. R. v. Montgomery Pass. Ry. Co., 167 Pa. 62; Dempster v. United Trac. Co., 205 Pa. 70. We have seen what was decided in Sterling’s Appeal as to gas pipes in country roads, but it has been held that the laying of such pipes, McDevitt v. People’s Nat. Gas Co., 160 Pa. 367, or of water pipes, Provost v. New Chester Water Co., 162 Pa. 275, is included in the ordinary uses to which streets in municipalities may be put, and for which the adjoining landowner is not entitled to compensation as for a new servitude. These two cases show beyond controversy that the present case is not controlled by the reasoning upon which the courts of some of the other states of the union have held that' the placing of telephone poles and wires in a street imposes an additional servitude on the land. In one case we find the reason stated in these words: “ They are not placed in the street to aid the public in tlieir right of free passage, nor to facilitate the use of the street as a public way, but to aid in the transmission of intelligence.” In another case it is declared: “ The primary use of a street or highway is confined to travel or transportation.” Such, is not the law of Pennsylvania as to streets in cities and boroughs. The reasons for distinguishing between them and country roads were thus stated in MeDevitt v. People’s Natural Gas Co., 160 Pa. 367: “ These reasons are obvious. The necessity for drainage ; for a water supply; for gas for purposes of lighting; for natural, or fuel gas, for heat; for subways for telegraph and other wires ; and for other urban necessities or conveniences, give to the municipality a control over the subsurface that the township has not. Property in a city is no less sacred than property in the country. The title of the owner is neither better nor worse because of the location of his land. But its situation may subject it to a greater servitude in favor of the public in a large, compactly built city than would be imposed upon it in the open country. The city has the right to use the streets and alleys to whatever depth below the surface it may be desirable to go, for sewers, gas and water mains, and any other urban uses. In taking the streets for these necessary or desirable purposes it is acting not for its own profit, but for the public good. It is the representative of the inhabitants of the city, considering their health, their family comfort, and their business needs; and every lot owner shares in the benefits which such an appropriation of the streets and alleys confers. If the city abridges his control over the soil in and under the streets, it compensates him by making him a sharer in the public advantages that result from proper drainage, from an abundant water supply, from the general distribution of gas, and the like.” Again in Dempster v. United Trac. Co., 205 Pa. 70, the late Justice Dean said: “ It is settled law, that abutting owners on streets and alleys in cities and boroughs have no claim for damages by reason of the appropriation of the surface or subsurface for public improvements to the advantage and benefit of all the inhabitants; it is much easier to say that such is the settled law than .to give a wholly satisfactory reason for it; the one usually given both in McDevitt v. People’s Nat. Gas Co., 160 Pa. 367, and in many cases preceding it, is, that the borough is the representative of the inhabitants, considering their health, their family comfort and their business needs; and every lot owner shares in the benefits which such an appropriation of the streets and alleys confers. If it abridges his control of the soil, it makes him a sharer in the public advantage resulting from the appropriation. In a legal sense, it is an invasion of his rights, but that is damnum absque injuria. But whether the reasoning to sustain the law be satisfactory or not, as a fact, the law is so deeply imbedded and firmly fixed as a rule of action, that it is not likely to be disturbed, at least in our day.” The doctrine of the McDevitt case is in accordance with previous utterances of the court in Lockhart v. Craig Street Ry. Co., supra, and Wood v. McGrath, 150 Pa. 451, and it would be too narrow a view for us to take of it to hold that what was said as to any other kind of urban use, except the maintenance of pipes for supplying gas to the inhabitants, is obiter dictum. The conclusion that this is an urban use is based on reasoning which would be fallacious, if the other uses expressly mentioned in the opinion of the court are not so. And, if the use of a city street for the purpose of communication among the inhabitants by means of the telephone is included within the servitude in favor of the public, there is no sound principle upon which it can be held that such use is confined to the subsurface. As well might it be said that although the use of the street for passage and transportation by means of a passenger railway is not an additional servitude, the erection of poles and wires on the surface for the transmission of the motive power is so, and that, as we have seen, would be directly in conflict with the decisions.

The principal question raised in this case has not been decided by our Supreme Court in a case involving the same state of facts. But the general principles, which have received recognition in the cases above cited, as to the servitude in favor of the public in city and borough streets, lead to the conclusion that the erection of telephone poles and wires in such streets, under charter right, with municipal consent, and in conformity to municipal regulations, is not in itself an additional burden for which the owner of the fee is entitled to compensation. It logically follows, that unsightliness of the poles, and noises which are the ordinary incident of the lawful and nonnegligent maintenance of the poles and wires and the conduct of the business, do not constitute a special injury for which damages are recoverable. In neither of these particulars is there a substantial and meritorious distinction between the construction and operation of a telephone line, and the construction and operation of an electric street railway, with its trolley wires and poles. Noise is an inseparable incident of many lawful uses to which a city street may be put, without the consent of the abutting landowners, and where such use is not in itself an additional servitude the resulting discomfort from noise is damnum absque injuria. See Jones v. Erie & Wyoming Val. R. R. Co., 151 Pa. 30, at page 49.

But the cases above cited, as well as others, recognize this qualification as to elevated structures, that appreciable interference with light, air, access or drainage is an additional burden to which the land of the abutting owner cannot be subjected without rendering to him just compensation. The principle is thus stated in the ease last cited: The permission of the municipality to cross or enter upon one of its streets, whether upon the surface or above or below it, is an authority to the grantee to enter within the limits affected by the public easement and in subordination to it. The grantee may lawfully enter under this permission, but his rights are subject to the same limitations that have been already pointed out. He must impose no new servitude upon the land. If he does he takes not only what the municipalitj'- had to grant, but he takes from the owner in addition. In such case, as we have seen by the cases already cited, the owner is entitled to compensation for the new servitude to which he is subjected.” See also Duncan v. Penna. R. R. Co., 111 Pa. 354; Penna. Schuylkill V. R. R. Co. v. Walsh, 124 Pa. 544; Penna. Schuylkill V. R. R. Co. v. Ziemer, 124 Pa. 560.

The affirmation of the defendant’s points, without accompanying with it the qualification last mentioned, might have been misunderstood by the jury as implying more than was intended by them; therefore the first and second assignments are not sustained. Neither is the third, because, as heretofore shown, there was evidence that the pole is a special injury, in that it interferes with light and access. But we think there was error in the instructions, which are the subject of the fourth assignment, in permitting a recovery by reason of noises, and also in the instructions quoted in the fifth assignment, in that the ef- ’ feet of them was to permit a recovery upon the ground that the pole is an unsightly object. So far as the fourth assignment relates to dampness of the plaintiff’s cellar we refer to the discussion of that matter in a former part of the opinion.

The decisions of the courts outside of this commonwealth upon the main question are not in harmony, and it would unduly prolong this opinion to attempt to review them. They will be found collected in McCann v. Johnson County Telephone Co., 66 L. R. A. 171, decided in 1904.

Judgment reversed and venire facias de novo awarded.