author: Opinion by Henderson, J.,

text:
    Fidler v. Rehmeyer, Appellant.

      Trespass — Obstruction of lane — Prescriptive use — Evidence—Cross- ' examination.

    In an action of trespass for obstructing a private way or lane, where it appears that the plaintiff before purchasing a farm demanded that the lane in question, which was on one of the boundary lines, should be closed, and the plaintiff, the vendor, and the owner of the adjoining land agreed that the lane should be closed, and the adjoining owner subsequently did close it, a sufficient consideration exists between the plaintiff and the adjoining owner to support the agreement entered into between them in relation to the fence.
    In such a case where the plaintiff claims the right to the lane by prescriptive use, and testifies that the fence was erected against his protest, and claims exemplary damages against the defendant, the adjoining owner, the defendant may show upon cross-examination of the plaintiff an agreement made before plaintiff took title that the fence should be removed, and that in pursuance of such agreement, a fence was constructed along the boundary line, and that it was built by the defendant with the knowledge, consent, and in the presence of the plaintiff, and on an agreement that the plaintiff should bear his share of the expense. Such proof is proper cross-examination, and is not in contradiction of plaintiff's deed. Declarations and acts of the plaintiff may be shown by the testimony of other witnesses, indicating an intention on the part of the plaintiff to abandon the easement.
    Where a right to a private way on the boundary line between two farms is claimed by prescription, the person denying the right may show that the use of the way had its beginning in the friendly and intimate association of a father-in-law and a son-in-law who owned the adjoining properties, that the use of it was for mutual accommodation, by permission, and so continued thereafter and was, therefore, not adverse. A . change in ownership by a sale of either property does not necessarily change the character of the relation, nor make that hostile which had previously been permissive.
    Argued March 12, 1907.
    Appeal, No. 97, March T., 1907, by defendant, from judgment of C. P. York Co., Oct. T., 1905, No. 45, on verdict for plaintiff in case of Charles H. Fidler v. Henry C. Rehmeyer.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Obstruction for a private right of way. Before Bitten-GER, P. J.

      At the trial the plaintiff on the stand claimed a prescriptive use of the right of way in question, and also exemplary damages for its obstruction. He asserted that the defendant, who was an adjoining owner, had constructed a fence against plaintiff’s protest along the boundary line of their respective properties, and thus obstructed the lane in question. On cross-examination the following offer was made:
    Mr. Hoober: It is sought to aslc the witness on the stand the question whether in contemplating the purchase of the land in question he did not say to his vendor, Noah S. Flinchbaugh, that he would not purchase the land, or would not have this land, with the lane in question between the two properties; and that he asked the vendor, Noah S. Flinchbaugh, to call on Henry C. Rehmeyer, the defendant in this action, and ask him to release or surrender or give up his right to this lane so that it might be closed; that he did not want the property unless the lane could be closed; and that subsequently he, the witness, personally spoke with Henry 0. Rehmeyer, the defendant, and made request as above in person; and that it was mutually agreed between the plaintiff and the defendant, after the defendant demurred, that the lane should be closed, and the fence placed on the line ; to be followed by evidence that the fence is upon the line as shown in the plaintiff’s deed, marked exhibit “ No. 1, H. C. D.,” together with evidence that said Noah S. Flinchbaugh, witness’s vendor, requested Mr. Henry C. Rehmeyer, the defendant, to close the said lane in order to effect the sale of the property now owned by plaintiff, and that defendant finally agreed, which information was conveyed by said Flinchbaugh, vendor, to the witness on the stand; and that in pursuance of said arrangement so made between the witness and Flinchbaugh, and Rehmeyer, the fence was moved, the witness himself taking away his fence made of palings, assisting the defendant .in placing posts into position, and in the construction of said fence, having agreed to bear in part the expense of the removal and the erection of the line fence; that said fence was constructed by the defendant at his own expense, wdth the knowledge, consent and presence of the witness on the stand; that subsequently, after said fence had been erected by defendant, the witness refused to bear his part of the expense; and the defendant, after allowing a gap in said fence for a period of over one year, finally constructed this fence at his own expense on the line contained in the plaintiff’s exhibit, marked “No. 1, H. C. D.” This for the purpose of contradiction, if he denies it.
    The Court: You are offering your whole case. He has testified to much of this already, and almost everything he has denied.
    Mr. Hoober: I want to lay ground for denial.
    Mr. Glessner: Objected to as not proper evidence at this time, not cross-examination; contradictory of the right and title of the plaintiff in this suit. The easement being appurtenant, was eonvej'ed to the plaintiff, and to the parties under whom he held, being a conveyance under seal, cannot be contradicted or affected by parol agreement between the parties, even if it had taken place. Not evidence for the purpose offered, and not cross-examination.
    The Court: We reject that part of the offer that refers to what took place before the deed was delivered, between Flinchbaugh and the witness and the defendant, and we admit the other part. That is, we allow the examination of the witness in reference to the other matters which are in the offer alleged to have occurred between the witness and the defendant, Mr. Rehmeyer; and we seal an exception for both sides. [1]
    When Noah S. Flinchbaugh was on the witness stand the following offer was made :
    Mr. Hoober: It is sought to be proved by the witness on the stand that although the lane was in the condition stated at the time of the delivery of the deed, that the agreement between the plaintiff, Charles H. Fidler, and Henry C. Rehmeyer, the defendant, was that the lane was to be changed and the fence placed on the line, and the lane extinguished or surrendered as it then existed, and that in pursuance of said agreement, at the request of the plaintiff in this action, the witness called upon Henry C. Rehmeyer and made request in compliance with the agreement prior to the delivery of the deed to make request for this change ; that it was agreed to by Henry C. Rehmeyer, and the consent was made known to the plaintiff by the witness, and upon the strength of said agreement the property was sold by the witness to the plaintiff; and, subsequently, in conversation between the witness and the plaintiff, the conversation was had between the two showing a ratification of the previous contract calling for the placing of the fence on the line, and the extinguishment and surrender of the lane. This for the purpose of contradicting the plaintiff in his testimony, as well as to show in cross-examination that although the fence remained in that condition at the time of his delivery of the deed, that there was an agreement that it should be changed between the plaintiff and the defendant. This for the purpose of abating any claim for damages on account of the obstruction of the right of way or the lane.
    Objected to by Mr. Glessner as not proper cross-examination; an attempt to enter a matter of defense into the case at this time ; as irrelevant and immaterial.
    The Court: We reject the offer and seal an exception for the defendant. We have already expressed our ideas in reference to this offer, when it was made before, as not cross-examination, and it is an offer to contradict or vary the deed that is offered in evidence. It was made before the deed was delivered, and therefore it is not competent evidence, and we think the objections are valid. [2]
    Mr. Hoober: Defendant offers to prove by the witness on the stand that prior to the delivery of the deed dated March 28, 1903, marked “ No. 1, H. C. D.,” the plaintiff came and lived with the witness, and that while living with him,—
    The Court: He went there in December, and the deed was delivered in April.
    Mr. Hoober: Yes, sir; and while living with them, and prior to the delivery of the deed, plaintiff requested the witness to confer with Mr. Rehmeyer, the defendant, and ask him to agree to surrender, or to the closing up of the lane in question, saying that he did not want the premises that way, meaning the lane ; that in pursuance of the request of the plaintiff, witness conferred with Rehmeyer, the defendant, requesting him to agree to the closing of this lane; that defendant at first demurred, and declined to agree, but finally agreed that the lane should be closed and the fence placed on the line ; that witness conveyed this agreement to the plaintiff and later delivered the deed for the property; that subsequently to the delivery of the deed, witness having moved away from the premises, plaintiff wrote to the witness, and in the letter complained about the fence not having been placed on the line, making no reference to the closing of the lane improperly or illegally; that the fence was subsequently placed on the line at the place indicated by the stakes put in position by the surveyor who had run the line at the instance of the witness, together with testimony showing the character of the lane, to mitigate the damages, as well as to rebut the presumption of an easement, or the attempted proof of an easement, as shown by plaintiff’s witnesses this morning. This for the purpose of showing that if any easement or right of way ever existed, that it was surrendered, or agreed to be closed, between the plaintiff and his agent, the witness, and the defendant, and that upon that agreement there was a fulfillment on the part of the defendant, and so far executed throughout, in the way of expense and labor, that it would be inequitable to order or permit any damages to be incurred by reason of the change of the fence and the closing of the lane. For the purpose of sustaining the issue on the part of the defendant, and the plea of not guilty entered in this case.
    Mr. Glessner: Objected to as not evidence for any purpose in this case, as irrelevant and immaterial; does not rebut the presumption of an easement; that it is contradictory of the law. An easement once granted by deed cannot be revoked by any parol agreement. Contradictory of the first part of the offer, in that the evidence proposes to prove and sustain the contention of the plaintiff in this case, that the fence was not put there by his consent, it not being proven, or pretended to be proven, that this line was put upon any line agreed upon by the plaintiff, but proves that the fence was not put upon the line that the witness attempts to prove was agreed upon by the plaintiff, which was contended by him; as contradictory, and not evidence for the purpose offered.
    The Court: We do not think this offer is admissible as offered. We admit it for the purpose of showing that the plaintiff, in view of that lane being there, and stating that he did not want it there, and requested Mr. Rehmeyer to consent or agree to its being done away with, and the fence being put on the line, for the purpose of affecting the question of damages in the case, and we seal an exception for both sides. [B]
    When William Webb was on the witness stand the following offer was made:

      Mr. Hoober: Defendant offers to prove by the witness on the stand that in the spring of 1903, prior to the erection of the fence in question, Fidler, the plaintiff, told the witness that he wanted the lane in question closed, but that Rehmeyer was so damned bull-headed he would not agree to it; that he, Fidler, had as much money to spent at law as Rehmeyer; and that he, Fidler, wanted the lane closed so that Rehmeyer would stay on his ground, and Fidler would stay on his. This for the purpose of sustaining the issue generally on the part of the defendant, the plea of not guilty; showing the abandonment or surrender of any right the plaintiff may have had, together with mitigation of damages.
    Objected to by Mr. Glessner as not proper legal evidence; that no parol declaration by the plaintiff can affect or close up the right or easement in question; being contradictory of the defendant’s own witnesses; wholly irrelevant and immaterial, and not evidence for the purpose offered.
    The Court: We sustain the objection, and do not admit the offer, and seal an exception for the defendant. The right of way cannot be surrendered in that waj' at all.
    Mr. Hoober : I renew the offer for the purpose of showing malice on the part of the plaintiff, and for showing consent; and the offer to be followed by evidence, or in connection with evidence already offered, that the lane was closed, the money laid out and expended, and labor performed, to carry out the agreement. Also to corroborate the statements already offered in behalf of the defense, and in contradiction of the evidence offered by the plaintiff.
    '. Mr. Glessner : Objected to;
    The Court: We regard it as an offer to prove an intention which has not been carried out, before the fences were changed; and before any change was made in. the lane; and not being admissible under the statute of frauds, and not being admissible even for the purpose of showing malice at that time, and particularly malice between people who already have roads to their lands on both sides. We reject the offer, and seal an exception for the defense. [5]
    Defendant presented these points:
    ■ 7. If from the evidence the jury is satisfied that the travel over this lane began in the intimate relations existing between

      father-in law and son-in-law, who owned, and occupied the two properties, it would not be an adverse user by either; and if the successors in title have permitted and enjoyed the same user, no right would be acquired by mere lapse of time by means of it. What the fact is as to the beginning and continuance of travel between the owners is for the jury. Answer : We answer this point as follows : This-point as written cannot be affirmed. The facts as to the establishment of the lane in question, and its use by the adjoining owners is for the jury — its use by the parties to this action and the predecessors in title. [12]
    10. If from the evidence the jury is satisfied that the original use was friendly, and for mutual accommodation, then the change in ownership, by selling either property to a stranger, whether the present owners, or their predecessors in title, does not necessarily change the character of the relation. Answer: We answer this point as follows: This point is not correct, and it is refused. [14]
    11. If the jury is satisfied from the evidence that the travel over the lane was a matter of mutual accommodation, it was not adverse, and no right would be acquired by reason of it, and the verdict will be for the defendant. Answer : We answer this point as follows : This point is not correct, and is refused. [15]
    Verdict and judgment for plaintiff for $220. Defendant appealed.

      Errors assigned were (1, 2, B, 5) rulings on evidence, quoting the bill of exceptions; (12, 14, 15) above instructions, quoting them.

      John A. Eoober, with him Boss <j- Brenneman, for appellant.
    —Appellant contends that after making the agreement with appellee to close the lane, and fulfilling the agreement by actually closing the lane at an expense of labor and money, it would be inequitable to permit appellee to rescind the same, and the parol agreement should have been admitted as evidence of estoppel and not merely to affect the damages : Hudson v. Watson, 5 Pa. Superior Ct. 456.
    The user was not adverse: Bennett v. Biddle, 140 Pa. 396.

      October 7, 1907.

      James G. Glessner, with, him Robert S. Frey and Me Glean Stock, for appellee.
    Defense cannot be introduced by cross-examination : Mackinley v. McGregor, 3 Wharton, 369; Page v. Simpson, 172 Pa. 288; Sullivan v. New York, Lake Erie and Western Railroad Company, 175 Pa. 361.
    The easement being appurtenant was conveyed to the plaintiff and the parties under whom he held by deed under seal, and could not be affected by parol agreement between the parties: Erb v. Brown, 69 Pa. 216.
    The use was adverse: Godino v. Kane, 26 Pa. Superior Ct. 596.
   Opinion by

Henderson, J.,

The plaintiff alleged an obstruction of a private way and supported his case by evidence of the existence of a lane along the line between his land and the defendant’s, which had been used by their predecessors in title for about forty years. It was not shown that the right was created by grant, but evidence was introduced to establish a prescriptive use. The plaintiff was called as a witness in his own behalf and in his examination testified to the existence of the lane and that the defendant, against his protest, erected a fence along it and near the middle thereof, thus depriving the plaintiff of its use and compelling him to drive over other portions of his land in performing his farm work. The defendant undertook to show on the cross-examination of the plaintiff that before the latter bought his farm he asked the owner from whom he was about to buy to attempt to secure an agreement from the adjoining owner, the defendant, to have the lane closed, the owner and the defendant to agree to release or surrender any rights they might have in the lane, the plaintiff not desiring to have it remain open as a joint way, and that Mr. Flinchbaugh, the owner, consulted with the defendant with reference thereto as a result of which consideration it was agreed by Flinchbaugh, the plaintiff and the defendant that the lane should be closed and the fence placed on the dividing line and that subsequently, after the plaintiff bought from Flinchbaugh, in pursuance of the arrangement theretofore made, a fence was constructed along the line, the plaintiff assisting the defendant in its construction; that the fence was built by the defendant with the knowledge, consent and in the presence of the plaintiff and on an agreement that the plaintiff should bear his share of the expense. The court rejected so much of the offer as related to what took place between Flinchbaugh, the plaintiff and the defendant before the deed was delivered by Flinchbaugh to the plaintiff and admitted the other part of the offer. A second offer of evidence tendering substantially the same proof was rejected by the court because it was not cross-examination and was an offer to contradict the plaintiff’s deed.

The first and second specifications- assign this action as error. We think the defendant was entitled to the evidence as proposed in these assignments. The pith of the plaintiff’s evidence was the existence of the way and the defendant’s unlawful obstruction of it against the plaintiff’s protest and request and his claim for damages was based wholly upon the allegation that the defendant without any right or justification had deprived him of the use of a way which his predecessors in title had acquired by prescription. He claimed further that he was entitled to exemplary damages by reason of the manner in which the defendant had proceeded. It was pertinent, therefore, to ascertain whether the defendant’s action was not in accordance with the agreement made before the plaintiff acquired title and whether the closing of the lane was not with his consent, at his request and with his co-operation. The questions did, indeed, introduce the defendant’s case but they were in line with, and suggested by, the plaintiff’s evidence in chief and had a direct bearing on the bona fides of his case as presented in his testimony. If the plaintiff demanded an abandonment of the lane as a condition precedent to his purchase from Flinchbaugh by reason of which all the parties in interest agreed that the fence should be placed on the line between the lands and this was done after the plaintiff acquired title, a sufficient consideration existed for the alleged agreement: Hudson v. Watson, 5 Pa. Superior Ct. 456.

Upon like consideration the offer contained in the third specification was admissible as made. It had a bearing not only on the question of the amount of damages, but on the allegation of abandonment or surrender of the easement which if established would defeat the plaintiff’s right of action. The proposal was to show voluntary acts of the plaintiff of a character so decisive and conclusive as to prove his intention to abandon the easement. The necessary effect of the erection of a fence by the parties along the line, in execution of a preceding agreement with the plaintiff, would be to destroy the easement. The case assumed is not one of an unexecuted agreeement for the surrender of the way, but of an abandonment pursuant to an executed agreement. The fact of the agreement and the nature of the acts done or acquiesced in by the plaintiff because of the agreement are material subjects of inquiry and if they clearly indicate an intention on the part of the owner of the right to abandon it, it is sufficient: Liggins v. Inge, 7 Bing. 682; Moore v. Rawson, 8 Barn, and Cress. 332; The Queen v. Chorley, 12 A. & E. (N. S.) 515.; Pope v. Devereux, 71 Mass. 409 ; Dyer v. Sanford, 50 Mass. 395; Crain v. Fox, 16 Barb. 184; Canny v. Andrews, 123 Mass. 155.

The plaintiff having denied that he had any arrangement with the defendant by which the lane was to be closed or that it was closed with his concurrence or consent the offer of evidence contained in the fifth specification seems clearly competent. The declaration of the plaintiff there referred to was made before the fence in the lane was built and bears directly on his intention with reference thereto and is corroborative of the defendant’s claim that the fence was not made against the will of the plaintiff and in violation of his right, but because he had abandoned the easement.

The twelfth, fourteenth and fifteenth specifications are based upon evidence introduced by the defendant tending to show that the use of the lane had its beginning in the friendly and intimate association of a father-in-law and son-in-law- who owned the adjoining properties; that the use of it was for mutual accommodation, by permission, and so continued thereafter and was, therefore, not adverse. It is a well-established rule of law that mere possession will not give title though such possession may have continued for a long period. The possession necessary to accomplish this result must.be adverse to the title of the owner. Where one enters in subordination to another’s title the statute will not begin to run in his favor until he does some act which destroys the relation: Wheeler v. Winn, 53 Pa. 122; Cadwalader v. App, 81 Pa. 194; The Tinicum Fishing Co. v. Carter, 61 Pa. 21. This rule applies to a right of way claimed by prescription. Such a right must not only have been enjoyed continuously for twenty-one years, but such use must have been adverse to the rights of the owner of the land in order to give a title : Okeson v. Patterson, 29 Pa. 22; Bennett v. Biddle, 140 Pa. 396. A grant will be presumed where one uses a road over another's land without objection and without asking for the privilege, but this presumption may be rebutted and the use may be shown to have been in subservience to the title of the owner of the land: Bennett v. Biddle, supra. If the use of the way grew out of the intimate relation of father-in-law and son-in-law for mutual convenience and accommodation and was continued by them and their successors in title in the same way and in the same spirit of mutual convenience, such enjoyment would not be adverse and no title would be acquired thereby. How it originated and the character of it was a question for the jury. It is clear that if it were such as is claimed by the defendant the change in ownership by a sale of either property did not necessarily change the character of the relation, nor make that hostile which had previously been permissive. The attitude of the respective owners may have changed, but whether it was changed is a question of fact. The plaintiff acquired no greater right than existed in favor of his grantor, and if the way in question was not established adversely before the plaintiff received his deed it is not created by that instrument. The case of Godino v. Kane, 26 Pa. Superior Ct. 596, is cited by the appellee’s counsel in support of the action of the court. That case does not go further, however, than to hold that where one uses an easement whenever he sees fit without asking leave and without objection such use is adverse and such adverse use may be shown by the manner in which it is enjoyed. The case is authority, however, for the proposition that evidence is admissible showing that the use began and continued in a manner inconsistent with an adverse enjoyment. The testimony of several of the defendant’s witnesses might lead the jury to believe that the lane was an arrangement of neighborly accommodation; that its use was permissive and that there had not been an assertion of an adverse title thereto before'the plaintiff .bought his land. We are of the opinion that the defendant was entitled to an affirmance of the seventh, tenth and eleventh points. The other specifications do not require consideration.

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


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Commonwealth v. Levinson, Appellant.

      Criminal law — Evidence—Independent crimes — Adultery.
    Generally speaking, evidence of an independent crime is not admissible in the trial of a defendant for a specific offense; but where the testimony bears upon the conduct and motive of the accused with reference to the particular charge, or where it tends to show the relation between parties in connection with the crime alleged, such evidence is always admissible.
    On the trial of an indictment for larceny of money stolen from the bed of the prosecutor’s wife, it may be shown that at the time of the larceny the defendant and the wife were living in adultery.

      Criminal law — Bill of particulars — Larceny—Trespass—Adultery.
    On an indictment for larceny, a bill of particulars furnished by the commonwealth set forth that the defendant committed the larceny charged in the indictment, and that the taking of the property was accompanied by a trespass. The proof showed that the defendant entered an apartment occupied by the prosecutor's wife, in her absence, and took and carried away the money which she had concealed in her bed. It also appeared that the prosecutor's wife had not acted promptly in an effort- to recover the money. Held, that the evidence supported the bill of particulars, and was sufficient to sustain a conviction.
    Receipt from the wife of the husband’s goods by an adulterer or one intending to elope with her and live with her in adultery, is larceny from the husband.
    Where a wife sells land belonging to her husband as an attorney in fact, and receives the purchase money as his agent, and thereafter elopes with another, and her paramour steals the money from her bed in her absence, he may be convicted of the larceny of the husband’s money.
    Argued April 10,1907.
    Appeal, No. 194, April T., 1907, by defendant, from judgment of Q. S. Allegheny Co., Dee. T., 1906, No. 266, on verdict of guilty in case of Commonwealth v. Barney Levinson.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Indictment for larceny. Before Gillan, J.
    The court charged in part as follows:
    The commonwealth has offered evidence to show this: That this prosecutor, Isaac Simpson, owned a farm in South Africa. That he employed the defendant to manage that farm under the terms which were testified to by both of them, and in which they do not differ. That after he was there for a while he persuaded the owner of the farm to go to Johannesburg. Subsequently he procured, according to the evidence of the common-, wealth, the husband to give a power of attorney to his wife to sell that farm. A good deal has been said about the deed of sale for the farm ; whether it was conveyed by the wife in pursuance of a power of attorney, or whether the husband signed the deed, we are not informed; the papers are not put in evidence before us.
    It is further testified, and it is the theory of the commonwealth, and they offer evidence for it, that the defendant connived, schemed, to get this man to sell this farm, to get the money into the hands of the wife, and to get it finally himself. The woman testified that during the summer on this farm he asked her to come with him and ride horseback. That they rode around the farm, which was a large one; that on their return home he gave her something to drink which made her drunk; that having made her drunk he got her to his room, disrobed her, and had carnal knowledge of her person. That was the beginning of her downfall. As I recollect • the testimony, that was not contradicted. It is for you to recollect the testimony, but as I recollect it, the defendant did not contradict that statement of this woman that he made her drunk, thereby secured possession of her person and gratified his animal passions upon her person.
    It is further testified that the farm was sold; that the money came into the actual custody of the wife. She deposited it in a bank in Heilbron, in South Africa. She subsequently withdrew the money from the bank and brought it to America, at least a portion of it. I have not gone over the figures to count up just how much was left according to Levinson’s statement; you must remember that. But if you believe from this testimony, and you may believe it, I do not say that you shall, if you find the fact to be that she deposited this money in bank in Heilbron, that she brought it with her to America, that Barney took it from under her pillow as the children testify he did, he is guilty of larceny and ought to be convicted. [The property, the monejq was the money of Isaac Simpson. It was the money of no other person. She, according to the testimony, was his attorney in fact; the money was his. Her possession of it was his possession;] [10] and if he took it from under that pillow and appropriated it to his own use he was guilty of the crime of larceny and ought to be convicted.
    [Something has been said about her having given him the money. If he obtained that money from her by her handing it over to him by any trick or fraud — if she gave it to him simply to have the custody of it — the ownership not to pass, but to take care of it for her — and he appropriated it to his own use, he is just as much guilty of larceny as though he took it from under the pillow.] [11]
    [So you see that it becomes a question of fact, and of fact entirely. Who will you believe? Do you believe the commonwealth’s witnesses, or do you believe the defendant’s witnesses? That is wholly for you. You will likely inquire of your own mind why any woman would come into a court of justice, in the presence of her children — the product of her womb, in the presence of her husband, and falsely testify to her own shame. Is that possible ? Is that in accordance with human experience?
    Do the little children tell the truth, or are they, as suggested by the counsel for the defense, telling a story ? It is for you to determine.
    Did this defendant, while in South Africa, plan to get this woman to America with the money, take it from her, and then send her back penniless to her husband ? Did she follow him, pursuing him for evil purposes ? If, as contended by the defense, she was following him for an evil purpose, he was not as skillful or as anxious to get away from her as was the great Hebrew of olden time, who lost his coat off his back rather than commit adultery. He could have gotten away from her. Did he try ?]

      Defendant presented the following points:
    1. The commonwealth in this case has set forth in the bill of particulars that the larceny in this case was accomplished by means of a trespass. Trespass is an essential element in the offense of larceny. In this case it is undisputed that the money received from the sale of the farm was deposited by Mrs. Simpson in a bank in South Africa in her own name; she and not her husband had possession of the money. The prosecutor, Mr. Simpson, never had possession of the $6,000, or any part thereof, which it is alleged the defendant stole ,• lienee there can be no trespass against the possession of Simpson and the defendant cannot be convicted of larceny. Answer.-Refused. [1]
    2. If the jury believe that the defendant and Mrs. Simpson conspired to run away together and steal the money of Mr. Simpson, the ■ prosecutor in this case, and in pursuance of this plan Mrs. Simpson stole his money, her act was his act and there, then, could be no conviction of larceny in this case because the jurisdiction over such an act belongs to the court in South Africa. Answer: Refused. [2]
    3. If the jury believe that Mrs. Simpson drew the money out of the bank in South Africa with the intention of running away with the defendant and that subsequently she did run away with the defendant in this case and came to Pittsburg, and subsequently in Pittsburg the defendant took possession of the money in' July last with her consent, or having taken said money, the defendant and Mrs. Simpson went to New York together, she knowing he had the money in his possession and consenting to such possession, there can be no conviction of larceny in this case. Answer: Refused. [8]
    5. If the jury believe that the money received from the sale of the farms was deposited by Mrs. Simpson in South Africa in a bank in her own name with the knowledge and consent of her husband, a subsequent taking and appropriation to her own use of this money would not be larceny, because there would be then no trespass, and the defendant could not be found guilty of receiving stolen goods. Answer: Refused. [4]
    6. Under the pleadings and evidence in this case the verdict of the jury must be for the defendant. ‘ Answer: Refused. [5]
    Verdict of guilty, upon which judgment of sentence was passed.

      October 7, 1907:

      Errors assigned were (1-5, 10-12) above instructions, quoting them.

      W. I. Seymour, of Seymour, Patterson Siebeneeh, with him B. P. Marshall, for appellant.
    Testimony of independent crimes is inadmissible because it tends to prejudice the minds of the jury against a defendant: Snyder v. Com., 85 Pa. 519; Swan v. Com., 104 Pa. 218.
    The commonwealth should have been restricted to evidence tending to prove larceny accompanied by a trespass, and that, the court should have charged the jury that they could find the defendant guilty as indicted only if they believed that the defendant’s act was accomplished by means of a trespass: Goersen v. Com., 99 Pa. 388; Com. v. Johnston, 19 Pa. Superior Ct. 241; Com. v. Stanley, 19 Pa. Superior Ct. 58.
    The conviction cannot be sustained, because Isaac Simpson, the prosecutor, neither owned nor possessed, either actually or constructively, the money: Regina v. Prince, L. R. 1 C. C. Rep. 150; Com. v. Berry, 99 Mass. 428; Bazely’s Case, 2 East’s P. C. 571.
   Opinion by

Henderson, J.,

The appellant contends that this judgment should be reversed for three reasons. The first is that evidence was admitted of independent crimes committed by the defendant -in another country ; the second, that a bill of particulars was filed by the commonwealth alleging that the larceny charged in the indictment was accomplished by means of a trespass and that the court should have charged the jury that they could only find the defendant guilty if they believed that the defendant’s act was accomplished by means of a trespass ; and third, that the prosecutor neither owned nor possessed either actually or constructively the money alleged to have been stolen from him.

It may be conceded that, generally speaking, evidence of an independent crime is not admissible in the trial of a defendant for a specific offense. Evidence of collateral facts not only does not tend to establish the charge set forth in the indictment but diverts the attention of the jurors from the consideration of the real point in issue and has a tendency to mislead them in their inquiry after the truth. There are numerous exceptions to the rule, however, as was shown in Swan v. Com., 104 Pa. 218; Goersen v. Com., 99 Pa. 388; Hester v. Com., 85 Pa. 139 and Com. v. House, 6 Pa. Superior Ct. 92. Where the testimony bears upon the conduct and motive of the accused with reference to the particular charge, or where it tends to show the relation between parties in connection with the crime alleged, such evidence is always admissible. It was with such an object in view that the evidence bearing upon the relation of the defendant to the wife of the prosecutor in Africa and England as well as in this country was offered by the commonwealth and admitted by the court. It did not present a collateral and independent state of facts. The money alleged to have been stolen was taken from under the pillow of the prosecutor’s wife’s bed in the city of Pittsburg at the home of the defendant’s father. It became a matter of prime importance to ascertain how Mrs. Simpson happened to be in Pittsburg at that time, how she became possessed of the large sum of money which she then had, and this inquiry necessarily led to South Africa, to the relation of the defendant to the prosecutor and Iris wife, his connection with them in the sale of the farm, bis influence over the prosecutor’s wife, their trip to England and from there to the United States and their association together in various places. Without such evidence the commonwealth could hardly have expected the jury to believe the story of the principal witness for the prosecution or to have convicted the defendant. Much light is thrown upon the charge of the actual larceny in Allegheny county by the testimony showing the intimacy between the prosecutor’s wife and the defendant, the sale of the farm, the depositing of the money in the bank in South Africa, the preparation of the paper through which this was accomplished and the transfer of the money by the prosecutor’s wife first to England and then to the United States. It is manifest that this evidence was not introduced for the purpose of establishing an independent crime, but to account for the situation of the parties at the time the larceny was committed. If the facts disclosed bore heavily against the defendant they are not to be excluded on that account. Being admissible as a series of events which led up to and made possible the act charged against the defendant in the indictment the court was notin error in admitting the testimony to prove them.

In response to a petition for a bill of particulars, the commonwealth set forth that the defendant committed the larceny charged in the indictment and that' the taking of the property was accompanied by a trespass. And this is just what was proved by the evidence of the witnesses for the prosecution. It was thereby shown that the defendant entered the apartment occupied by the prosecutor’s wife, in her absence, and took and carried away the money which she had concealed in her bed. This was the only taking shown by the commonwealth and is evidently the act by which the conviction was supported. It is true, the learned trial judge stated to the jury that if the defendant obtained the money from the prosecutor’s wife by any trick or fraud, or if she gave it to him simply to have the custody of it, and he afterward appropriated it to his own use, he was guilty of larceny in like manner, as if he took it from under the pillow of the bed. But this instruction was apparently suggested by the claim of the defendant’s counsel in the progress of the trial, that the prosecutor’s wife gave the defendant the money, and was not based upon any evidence which would have justified the jury in concluding that the money was so given. It did appear that after Mrs. Simpson was informed by her children that the defendant had taken the money, she did not make an immediate effort to recover it, and that she remained quiet about the matter until after the defendant failed to meet her in Liverpool,, but if the taking was as shown by the commonwealth, the offense was completed when the money was appropriated by the defendant and the omission of the prosecutor’s wife to act promptly in an effort to recover it, did not change the character of the defendant’s act.

The evidence warrants the instruction of tbe court to the effect that the money was the property of the prosecutor. It does not appear whether Simpson executed the deed for' the farm, or whether the conveyance was made by his wife, under the authority of the power of attorney, but it is clearly established -that the land belonged to the prosecutor, that the money which his wife received was the purchase hioney therefor, and that she was acting as his attorney in fact in completing the sale. She deposited the money in his behalf, and in keeping the funds, acted as his agent. He could have recovered the fund from the bank in which it was deposited, or from the defendant in an action at law, by exhibiting the proofs presented at the trial, and he had such a property in the money as supported the averment in the indictment of ownership by him. Much of the appellant’s argument would be appropriate if the allegation were that the larceny was committed by the prosecutor’s wife, but the charge and the evidence are, that the defendant stole the money when it was in the custody of the prosecutor’s agent. This was positively and directly shown, but it was not proved that Mrs. Simpson first committed a larceny of the fund from her husband. We do not deem it necessary to go into a discussion of the amenability of the defendant to the indictment, if the prosecutor’s wife stole her husband’s money in Africa and afterward converted it into other funds which the defendant subsequently stole, for this is not the case presented by the commonwealth nór that submitted by the court to the jury. Moreover, the authorities are all to the effect that receipt from the wife of the husband’s goods by an adulterer or one intending to elope with her and live with her in adultery is larceny from the husband: People v. Schuyler, 6 Cowen, 572; Reg. v. Featherstone, 2 C. L. R. 774; Reg. v. Tollett, 41 E. C. L. 67. If the defendant sustained the illicit relation to the prosecutor’s wife which the commonwealth proved, and.counseled and connived with her to leave South Africa and go to the United States and afterward took the money from Mrs. Simpson’s room, his act would be a larceny of the prosecutor’s property. We are not persuaded that any error was committed by the trial judge.

The judgment is affirmed and the record remitted to the court below to the end that tbe sentence may be carried into execution.


author: Head, J.,

text:
    Dunmore Borough, Appellant, v. Scranton Railway Company.

      Street railways — Double track railway — Construction of single track— Exhaustion of power — Act of March 23,1865, P. L. (1866) 1199.
    A street railway incorporated under the special Act of March 23, 1865, P. L. (1866) 1199, with power to construct between points designated, “a railway with one or more tracks,” does not exhaust its power by the construction of a single track railway, but it may more than three years after the passage of the act construct a double track railway to provide for the increasing needs of the public. There is nothing in the act of March 23, 1865, which requires the consent of a borough mentioned in the act as one of the terminals, to the construction of such railway within the borough limits; nor is the company required to take out a permit under an ordinance of' the borough “ regulating excavations in streets, and requiring permits therefor.”

      Semble that a borough has no standing to file a bill in equity by itself without notice to, or authority from, the state, to question the right of a railway company to add an additional track to a single track railway where the company has under its charter the right to “ construct a railway with one or more tracks.” It seems that no such authority is given to the borough by the Act of June 19,1871, P. L. 1360.
    Argued March 1, 1907.
    Appeal, No. 50, Jan. T., 1907, by plaintiff, from decree of C. P. Lackawanna Co., May T., 1905, No. 6, dismissing bill in equity in case of Dunmore Borough v. Scranton Railway Company.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Superior Court.

      jError assigned was decree dismissing the bill.

      I. H. Burns, with him James W. McDonald, for appellant.—
    The first laying exhausted the defendant’s powers: Wirth v. Philadelphia City Pass. Ry. Co., 2 W. N. C. 650 ; Pierce on Railroads, 254; Morrow v. Com., 48 Pa. 305 ; Cleveland, etc., R. R. Co. v. Speer, 56 Pa. 325 ; Holden v. Cole, 1 Pa. 303; McMurtrie v. Stewart, 21 Pa. 322; Furniss v. Furniss, 29 Pa. 15; Mine Hill, etc., R. R. Co. v. Lippincott, 86 Pa. 468; Jones v. E. & W. V. R. R. Co., 169 Pa. 333; Junction Pass. Ry. Co. v. Williamsport Pass. Ry. Co., 154 Pa. 116; Com. v. Street Commissioner, 3 Lackawanna Jurist, 45; People’s Pass. Ry. Co. v. Baldwin, 14 Phila. 231; P. & R. R. R. Co.’s Appeal, 16 W. N. C. 165; Penna. Sch. Valley R. R. Co. v. P. & R. R. R. Co., 157 Pa. 42; West Chester & Phila. R. R. Co. v. Goddard, 10 Sadler’s Sup. Ct. Cases, 53; Mooney v. The Rome Railroad, 76 Ga. 749; Joplin & W. Ry. Co. v. Kansas City, etc., R. R. Co., 135 Mo. 549 (37 S. W. Repr. 540); Morris, etc., R. R. Co. v. Cent. R. R. of N. J., 31 N. J. L. 205; Tissue v. P. & C. R. R. Co., 12 Pa. Dist. Rep. 175; Ransom v. Citizens’ Ry. Co., 104 Mo. 875 (16 S. W. Repr. 416).
    October 7, 1907 :

      E. N. Willard, of Willard, Warren £ Knapp, for appellee.—
    The company had a right to lay the additional track: Phila., Wilmington, etc., R. R. Co. v. Williams, 54 Pa. 108; People’s Pass. Ry. Co. v. Baldwin, 14 Phila. 231; Penna. Schuylkill Valley R. R. Co. v. Philadelphia, etc., R. R. Co., 157 Pa. 42; Ransom v. Citizens’ Ry. Co., 104 Mo. 375 (16 S. W. Repr. 416) ; Workman v. Southern Pac. R. R. Co., 129 Cal. 536 (62 Pac. Repr. 185).
   Opinion by

Head, J.,

Whilst the appellant asserts the irrelevancy of some of the facts found by the learned judge who heard this cause, the correctness of the findings is not challenged. Indeed we do not understand that any issue of fact has been raised by the pleadings or testimony, but the whole controversy hinges upon a pure question of law, viz.: has the defendant company, under its charter, the right to do the acts complained of in the bill? From these findings and the testimony the following statement of facts may be summarized.

The defendant company, then called the Peoples Street Railway Company of Luzerne county, was incorporated by a special act of assembly approved March 23, 1865, P. L. (1866) 1199. By section 1 of that act the corporators named and their successors were erected into a body corporate under the title quoted, with perpetual succession'; and' the-object for which the corporation was created and the powers conferred upon it to effectuate the creative purpose, were stated, in part, in the following language, to wit: “ and shall have the right to lay out and construct a railway, with one or more tracks, with turnouts and sidings, from or near Scranton, to Providence, Hyde Park or Dunmore, through any streets or roads, etc., selecting any routes, between the places indicated, that they may deem advisable, etc.” By section 4 it is provided “ that the company may commence said railway at any time within three years from the passage of this act, the completion of any one mile thereof perpetuating all the rights herelw granted.”

At the date of the passage of this act Scranton was but a borough. The evidence does not disclose whether Dunmore was then a borough or only a village ; but it is a matter of common knowledge that Scranton has grown to be the third city in entire commonwealth, whilst Dunmore — physically contiguous with and practically a part of the city, although retaining its municipal identity — is one of the large boroughs of the state, with a population nearly, if not quite, sufficient to entitle it to the rank of a city of the third class. Within the period of three years after its incorporation the defendant company had adopted its route and constructed and completed a railway, with a single track, from the city of Scranton to “ Dunmore corners,” a central point in the borough of Dun-more, and has ever since maintained and operated it. The rapid growth of the community, which set in during the decade between 1880 and 1890, impelled the company, if it desired to render the public service which was the object of its creation by the state, to make a corresponding development in its facilities to transport the traveling public, and accordingly it began to double track its line, starting in the city and gradually extending towards its other terminus, so that, as early as 1895, it had in operation a double track line to and into the borough of Dunmore. This double track, however, did not reach Dunmore comers. To do this it would be necessary to put down a second operating track along South Blakely street, upon which street but a single track had theretofore been used for the running of cars, although the business had required, for some years prior to the filing of this bill, the maintenance and use of a switch or siding for a distance of several hundred feet along that street. When the company began to convert its single track line- and siding on Blakely street into a double track operating line and to extend that line along that street to Dunmore corners, this bill was filed and a preliminary injunction sought.’ After an answer had been filed and a hearing had, the injunction was refused by Judge Edwards in a careful opinion covering the points in controversy. The company then went on, pendente lite, and finished its track' and has been since operating it. At final hearing before Judge Kelly, the question involved was again carefully gone over, and that learned judge adopted the conclusions previously reached by Judge Edwards, strengthening them by additional reasoning and citations of authorities, and dismissed the bill. From that decree this appeal was taken. We may add that, during the year 1905, the company transported upwards of 2,200,000 passengers, and the court has found that the construction and operation of the additional track is “ a substantial advantage to the defendant and to the traveling public without obstructing the general travel, over the street in question, to any appreciable extent.” No consent of the municipal authorities of the borough of Dunmore to the laying of the additional track was asked or obtained by the company; and no permit, as required by an ordinance of that borough, adopted in 1901, “regulating excavations in streets and requiring permits therefor,” was applied for by or issued to the defendant.

The main question raised and argued by the learned counsel for the appellant, viz.: that the act of the defendant, in attempting to construct and operate, on Blakeley street in Dunmore, a line of railway with double tracks, is ultra vires, is thus developed in his paper-book. “ Let us again call the attention of the court to the exact grant that was made to the defendant. It was ‘ to lay out and construct a railway.’ This railway might be a single track road or it might be a road with more than one track, but which of these two kinds of road should be constructed depended on the decision. of the company. It might have either, but not both. When it had exercised such choice and built a road in compliance therewith the charter power was exhausted. The choice of the company was a single track road. It might have chosen to build a double track road, but it did not. When it exercised its right of option, such right was fixed and determined and could not be changed.”

It is conceded, therefore, as it most be, that the charter of the defendant plainly and expressly conferred upon the company the right to do the very act now complained of, viz.: to construct and operate a line of railway with more than one track. Why does not that right now exist? Because, says the appellant, it was subsequently forfeited by the failure to build such a line within three years, or because the act of the company, in first building a single track line, amounted to a surrender of the conferred power to construct and operate a line with more tracks than one. How does the municipality of Dunmore acquire the right to raise and have determined such a question in a proceeding begun by itself without notice to or authority from the state, which long ago conferred the power and has not questioned its continued existence? Not under the Act of June 19,1871, P. L. 1360, because the courts have uniformly held that it was not intended, by that act, to authorize a collateral attack upon a corporate franchise or charter. Whenever it has been made to appear, in a proceeding under that act, that the right of the corporation to do the act complained of had been expressly granted in the charter, then, although it might be alleged such right had been subsequently lost by forfeiture, non user, surrender or otherwise, the act had no further application. The only proceeding by which such alleged forfeiture or surrender could be ascertained and enforced, since the act of 1871 as before it, was one directly begun for that purpose at the instance and by the authority of the state itself. “ In general after a charter is once shown, the subject is only open to further inquiry at the direct suit of the commonwealth itself. This act enables the private suitor to demand that the charter right to do the things complained of shall be shown. But it does not put him in the commonwealth’s place or clothe the court, at his instance, with the commonwealth’s powers of inquiry. The inquiry is limited to the nature and extent of the franchises prima facie conferred by the charter and does not extend to the validity of the charter itself: ” Per Mitchell, J., in Windsor Glass Co. v. Carnegie Co., 204 Pa. 459; Phila. & Merion Ry. Co.’s Petition, 187 Pa. 123; Western R. R. Co.’s Appeal, 104 Pa. 399.

Although the plaintiff is thus confronted, in limine, with a serious obstacle, inasmuch as this point was not pressed upon us at the argument, we will consider and dispose of the questions raised on their merits. The opinions filed by the learned court below so thoroughly and satisfactorily vindicate the decree that but little of value may be added to them.

When the state created the defendant corporation and invested it with some of the high powers of its creator, it must have regarded the existence of such a corporation and the •working out of the objects of its corporate life, as defined and prescribed in its charter, as helpful in the development of its territory, in supplying the wants and promoting the convenience of a portion of its people. As the state must have contemplated that the community, whose necessities its newly created corporation was to serve, would grow and multipty, thus bringing about ever changing conditions and ever increasing wants, so also it must have contemplated that the physical instrumentalities, through which the objects of the corporate life were to be accomplished, would develop and increase in power and efficiency. We regard the construction and operation of the second track by the defendant as nothing more than the' normal development thus intended. We can find no evidence either in the title to the special act of 1865 or the body of it, that the legislature intended to confer upon the defendant the right to do but one of two separate and distinct things, so that its election to do the one would, by the terms of the act itself, work a prohibition of its right to do the other. In other words, the act does not treat a line of railway with one track, and a line with two tracks as species of a common genus, railway. On the contrary, the expressed purpose for which the corporation was created was single, viz. : the construction of a street railway between the points designated and the transportation of passengers over it, and the construction of a second track has, in no sense, changed the identity of the railway originally built or converted it into something not authorized by the legislative will as expressed in the act. And this conclusion seems to be not only consonant with sound reasoning but to be supported by the highest authorities. In Phila., Wilmington & Baltimore R. R. Co. v. Williams, 54 Pa. 103, the legislature had authorized the company “as soon as they conveniently can, to locate and construct a railroad of one or more tracks.” Construing this grant Mr. Justice Agnew said: “ The expression ‘ as soon as they can conveniently locate and construct,’ is not a limitation upon the power to compel the company to exercise its whole authority in the very beginning, when the demands of business are few. It would be an unreasonable construction of its charter to require provision to be made for all the unknown wants of the future. The increase in trade and business, and the changes taking place, often require new and increased facilities.” The principle announced in this plain language has not, to our knowledge, been adversely criticised in any subsequent case. It was again well stated in a careful opinion by the late Judge Thayer in this form: “No rule of law in this state requires a railroad corporation to exercise all the powers contained in its grant in the beginning, or declares that those powers which are not then exercised are lost: ” People’s Pass. Railway Co. v. Baldwin, 14 Phila. 231.

The application of it to the case before us seems to me to be destructive' of the position of the appellant and the able argument of its learned counsel in support of it. Many other cases, some from the highest courts of other states, are cited by the court below, but no good purpose would be subserved by again quoting from them. We are of opinion, therefore, that the construction, by the defendant, of a second track on Blakely street was but the exercise of a power clearly conferred by its charter.

Could this charter power, however, be lawfully exercised within the borough of Dunmore without the consent of the local municipal authorities ? There is nothing in the special act of 1865, which requires the company to obtain such consent before it may exercise its powers; nor was there anything in the then existing constitution or any general act of the legislature -which made such consent a condition precedent to the enjoyment of the rights conferred by the charter. There was no legal obligation on the defendant, therefore, to seek the assent of the borough before laying its track, unless such obligation was imposed by the constitution of 1874. True, that instrument provides that “no street passenger railway shall be constructed within the limits of any city, borough or township, without the consent of the local authorities.” But it is the settled law of our state that “ charters of private corporations are left exactly as the new constitution found them, and so they must remain until the companies holding them shall enter into 'a new contract with the state by accepting the benefit of some future legislation: ’’ Hays v. Commonwealth, 82 Pa. 518; Williamsport Pass. Ry. Co. v. Williamsport, 120 Pa. 1. The fact, therefore, that the consent of the local authorities was not obtained by the defendant in no way invalidated the full exercise of the company’s charter powers and furnished no ground for intervention by the court.

We do not understand we are seriously urged to reverse the decree because the construction of the defendant’s track was a violation of the borough ordinance offered in evidence. It surely was not the purpose of this bill which attacked the right of the company to build and operate a second track, and sought to restrain it permanently from doing so, to convict the defendant of a violation of an ordinance, the penalty for which is a small fine. Besides, the court below held, and we think rightfully, that the construction of a railway track on the surface of the street was not such an excavation as the ordinance intended to prohibit.

After a careful review of the entire record we are fully satisfied that the learned court below reached the correct conclusion and, thez’efore, the appeal znusb be dismissed.

Decree affirmed at the costs of appellazit.


text:
    Keller, Appellant, v. Riverton Consolidated Water Company.

      Corporations — Merger—Recording certificate of charter — Office of recorder of deeds.

    Where several corporations which have been regularly organized under the general corporation Act of April 29, 1874, P. L. 73, and have recorded their respective certificates of charter in the office of the recorder of deeds, have been merged and consolidated under the Act of May 29, 1901, P. L. 349, the certificate of merger of the new company need not be recorded in the office of the recorder of deeds.

      Corporations — Water companies — Eminent domain — Exhaustion of power.

    A water company does not exhaust its right to condemn land by a single exercise of the power of eminent domain. It has the right to acquire, by purchase or condemnation, such additional land as it reasonably requires for the extension or enlargement of its plant necessary to enable it to discharge its duty of furnishing the public an adequate supply of water.
    Where additional land condemned by a water company is adjacent to the company’s existing plant, is marked off by easily visible and well-defined boundaries, and its adaptability for the use intended is obvious, the condemnation is not invalid, because it was not preceded by a preliminary entry and experimental survey, showing topography, grades, and the exact location of each proposed building.

      Courts — Judges—Prejudice—Previous employment-as counsel.

      A judge is not disqualified from sitting in a case involving the right of a merged corporation to condemn land, merely because some years previously he had been employed as counsel by one of the constituent corporations in other condemnation proceedings against the plaintiff.
    Argued March 11, 1907.
    Appeal, No. 9, March T., 1907, by plaintiff, from decree of C. P. Cumberland Co., March T., 1905, No. 1, dismissing bill in equity in case of M. R. Church Keller v. Riverton Consolidated Water Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Sadler, P. J.
    The opinion of the Superior Court states the case.

      Error assigned amongst others was decree of the court dismissing the bill.

      E. M. Biddle, Jr., with him S. S. Rupp, for appellant.
    The defendant company was not authorized to do business : Guckert v. Hacke, 159 Pa. 803; Bank v. Crowell, 177 Pa. 313 ; Braddock Boro. v. Water Co., 189 Pa. 379 ; Mill Co. v. Gallatin, 10 York, 183.
    The former taking by the Riverton Water Company, exhausted its power: McKay v. Water Co., 6 Pa. Dist. Rep. 364; Brigham v. R. R. Co., 83 Mass. 316; Neal v. R. R. Co., 2 Grant, 137 ; Lodge v. P., W. & B. R. R. Co., 8 Phila. 345.

      October 7, 1907:
    There was no valid location and appropriation by defendant : Williamsport R. R. Co. v. R. R. Co., 141 Pa. 407; New Brighton, etc., R. R. Co. v. R. R. Co., 105 Pa. 13; Homestead St. Ry. Co. v. Ry. Co., 166 Pa. 162; P., H. & P. R. R. Co. v. Gorgas, 14 Pa. Dist. Rep. 827.

      F. F. Beltzhoover, with him J. 3. Reiff and S. B. Sadler, for appellee.
    ’Under the act of 1901, the new corporation is complete and fully authorized to do business the moment it obtains its letters patent. The act of 1874 requires the certificate to be recorded in the recorder’s office of the county. The act of 1901 does not require such recording: Com. v. Ry. Co., 53 Pa. 9; Rumsey v. R. R. Co., 203 Pa. 579 ; Robinson v. Ry. Co., 49 Pitts. L. J. 369; McClure v. Ry. Co., 90 Pa. 269.
    The former taking by the Riverton Water Company did not exhaust the power : Ellmaker v. Buckley, 16 S. & R. 72; Trenton Cut-off R. R. Co. v. Ry. Co., 8 Pa. Dist. Rep. 549; Brown v. Corry, 43 Pa. 495; Palairet’s App., 67 Pa. 479; Water Co. v. Troy, 200 Pa. 453; Brace v. Water Co., 49 Pitts. L. J. 169 ; Lehigh Coal & Nav. Co. v. Gas & Water Co., 6 Pa. Dist. Rep. 291; McKay v. Penna. Water Co., 6 Pa. Dist. Rep. 364.
    So it has been held that land may be condemned where it becomes necessary for the extension of the works of the corporation: Schepp v. Reading, 2 Woodw. 460; Edgewood Water Co. v. Troy Water Co., 7 Pa. C. C. Rep. 476 ; Bell v. R. R. Co., 2 Pitts. L. J. 42; Sutton v. R. R. Co., 211 Pa. 554; McClinton v. Ry. Co., 66 Pa. 404; Getz’s App., 10 W. N. C. 453; Fehr v. Schuylkill Nav. Co., 69 Pa. 161.
    There was a valid location and appropriation by the defendant: Johnston v. Callery, 184 Pa. 146; Pittsburg, etc., Ry. Co. v. R. R. Co., 159 Pa. 331; R. R. Co. v. Porter, 29 Pa. 165; Roberts v. R. R. Co., 1 Phila. 262.
   Opinion by

Head, J.,

Although the assignments of error in this case number a score, they have been so grouped by the learned counsel for the appellant, that the consideration and determination, of four questions will dispose of every material point raised by the assignments.

Prior to February, 1905, there existed, in the county of Cumberland, six separate corporations, each created for the purpose of supplying water to the public within the territory covered by their respective charters. Each of these companies had been regularly and lawfully created under the general act of 1874 and its supplements, and each had complied with every legislative requirement necessary to enable it to begin the work for which it had been created, and to exercise and enjoy the rights and franchises contemplated by the laws authorizing the formation of such corporations.

By an agreement, dated February 10, 1904, duly entered into in accordance with the provisions of the Act of May 29, 1901, P. L. 849, the six companies referred to were merged and consolidated into a new corporation named the Riverton Consolidated Water Company, the present defendant; and it is conceded that the merger proceedings were so conducted as to meet and satisfy every express direction and requirement of the said act. The defendant having determined, in 1905, that, in order to furnish an adequate supply of water to a rapidly growing community, it must enlarge its plant, attempted to secure from the plaintiff about one-half acre of land adjoining its works; but, being unable to agree with the owner, began proceedings to condemn the property. The plaintiff thereupon filed this bill to restrain the further prosecution of the condemnation proceedings. After, final hearing the bill was dismissed and this appeal followed.

The first proposition urged upon us by the appellant is that the defendant was not legally authorized to transact any business because it had not caused to be recorded, in the recorder’s office of Cumberland county, “its certificate of incorporation or merger.” To this objection it ought to be sufficient to reply that the act of 1901 neither requires nor authorizes such a record. But it is argued that the act of 1901 is but a supplement to the general corporation act of 1874; that the two are in pari materia and should be construed together and therefore the provision of the latter act that “ the said original certificate .... shall then be recorded in the office for the recording of deeds in and for the county, etc., and from thenceforth the subscribers, etc., . . . shall be a corporation,” must be read into the former. The argument is not convincing. It is exclusively the province of the legislature to determine and declare upon what conditions two or more corporations, created under its authority, may merge and consolidate. That body having, in the act of 1901, prescribed in detail the several conditions upon the happening of which “ the said merger shall be deemed to have taken place, and the said corporations to be one corporation,” the addition of other and different conditions by a court would be a rank usurpation of legislative power. Moreover, the injection, into the merger act, of the recording provision of the act of 1874 referred to, would result in substituting, for a statute which exhibits harmony in its several sections and expresses the legislative will in terms that are clear and intelligible, another, contradictory in its terms and characterized by confusion and obscurity.

In a merger proceeding under the act of 1901 there is no such certificate as is, by the act of 1874, required to be locally recorded. The former act expressly declares, in sec. 3, that upon the filing, in the office of the secretary of the commonwealth, of the merger agreement and the certificates mentioned in sec. 2, “ the said merger shall be deemed to have taken place; ” and that such merger and consolidation shall be complete and the corporation ready to transact business when, but not until, it shall have obtained new letters patent and paid the required bonus into the state treasury. We are asked to amend this act, in which there is no grant of new powers or franchises by the state, so as to make it also declare that the merger shall not be deemed to have taken place and be complete, until the consolidated corporation shall have complied with a requirement contained in a different act of assembly, intended to apply only to such corporations as receive, with and as a part of their patent of creation, a gift of powers or franchises theretofore held by the state. In the latter cases the legislature deemed it wise that the public should have notice of the gift that had been made and hence “ notice by record was required: ” G-uckert v. Hacke, 159 Pa. 303. In this and kindred cases the supreme court but enforced the clearly expressed legislative will. “ The said original certificate .... shall then be recorded .... and from thenceforth the subscribers shall be a corporation,” is the plain mandate of the act of 1874. The same loyal submission to the will of the legislature, when clearly expressed, that impelled the court, in those cases, to insist upon compliance with all that had been commanded, now prohibits us from demanding the performance of that which has not been commanded. Moreover, the act of 1901 was not a new venture by the legislature into territory previously unexplored and uncharted. As early as 1865 a statute was enacted (March 24,1865, P. L. 49) authorizing the merger and consolidation of certain railroad companies. It prescribed the manner and terms in and upon which such merger could he effected and, as to these, the language of the act of 1901 has been taken bodily from the earlier one. In construing the act of 1865 the Supreme Court has held — Commonwealth v. Atlantic and Great Western Railway Co., 53 Pa. 9; Rumsey v. Railroad Co., 203 Pa. 579 — that nothing more could be required of the consolidated corporation than performance of the several conditions specified in the act. We but adhere to the principle of these cases in holding that the failure of the defendant to record the merger agreement in the recorder’s office of Cumberland county, created no obstacle to its exercise of all the powers theretofore vested in its constituent companies.

One of these companies, the Riverton Water Company, was incorporated in 1892 to supply water to the public at Riverton, in Cumberland county, and the period during which it was to exist and perform its corporate -functions was without limitation as to time. It selected a site for its plant and works and, being unable to acquire it by purchase, secured it regularly through condemnation proceedings. In the second proposition now advanced the appellant contends that the one act of appropriation in 1893, by which the company acquired the property then sufficient to enable it to perform its corporate functions, completely exhausted its power in that important respect; so that it is now unable to secure, by the exercise of the right of eminent domain, any additional land no matter how essential such land may be to its further corporate existence, or how urgent the public demand for a greater supply of water.

An adequate supply of water is one of the prime necessities of human existence. To furnish such supply is not only a privilege to be enjoyed by a corporation created for that purpose, but a duty to be discharged of such serious obligation that the state expressly reserves the right and power, through its courts, to compel the performance of it by direct coercion of the corporation. The discharge of its corporate duties by such a corporation is the consideration returned to the state for the gift of its franchises, and as long as the gift endures the corresponding obligation must be discharged. Reasonably, therefore, it must continue to possess and exercise, in its maturity, all of those powers with which the state, in its wisdom, saw-fit to endow it at birth in order to enable it to attain the objects of its creation and continued existence. The grown man, equipped for his life’s work, has not been shorn of any of the powers he possessed as a child, nor has he acquired any new ones, no matter how greatly he has developed his muscles and faculties in answer to the ever-increasing demands of his life and environment. So a corporation, whose useful activities are to continue through its entire existence, may find the legitimate demands made upon it multiply a hundredfold; it may see the means and instrumentalities, once adequate and then adopted, through that very growth of population the state desired to encourage, through the increased fertility of human invention and the march of progress generally, rendered wholly inadequate, ineffective, perhaps even obsolete. To discard the old means and adopt new and better ones, or to increase the effectiveness of those already in use by adding to their quantity or size, is not to change the objects of the corporate existence, to go outside the legitimate sphere of the corporate operations or to usurp any powers retained by the state or conferred by it upon other of its creatures. But a corporation failing to do these things could no longer discharge its obligations to the state; could show no reason for its continued existence. It would invite and deserve its own dissolution.

It is not to be presumed that the high right of eminent domain is conferred by the state either idly or gratuitously. The corporation possessing it is the agent of the state and may exercise the power, in working out the objects of its existence, as freely as the state itself could exercise it. When it appears, as it does in the present case, that the performance of the duties it owes to the public, requires a second exercise of a power expressly conferred on a corporation, it seems both anomalous and unreasonable to hold that such a power was exhausted by a single use of. it, The conclusion we thus reach from general reasoning is not forbidden by any adopted rule of public policy, does not contravene any line or letter of constitutional or statute law, has never been declared unsound by any decision of our courts. On the contrary, in Sutton v. Penna. R. R. Co., 211 Pa. 551, it is held that “ Under the Act of March 17, 1869, P. L. 12, relating to the widening of rights of way of railroad companies, a single taking does not exhaust the power.” There are many other cases, such as Schepp v. City of Reading, 2 Woodw. 460, Gas Co. v. Butler Water Co., 210 Pa. 177, in which, although the exact question now before us was neither raised nor decided, the line of reasoning adopted would seem to lead to and support the conclusion we have arrived at. We are not unmindful of the line of cases in which it is held that when a railroad company, for instance, has once exercised its power of location and adopted a route for its line, there is neither necessity nor authority for any further exercise of that power. In such a case, from the very nature of the power, a single exercise of it has completely satisfied the legislative intent in conferring it. Such a company is incorporated to construct and operate but a single railway between the terminal points designated. There is an indefinite number of routes that could be adopted between two such points. It would be clearly competent for the legislature to designate in the charter the location of the entire route between the terminal points. But by its general laws it has seen fit to give to each of such companies the privilege of writing into its own charter the location it will adopt, the route it will follow. When such power has been once exercised the resulting location becomes as fixed and determined as if originally incorporated in terms in the charter. If the company could thereafter change that location at pleasure, instead of exercising its charter light to adopt and use one route between its terminal points, it would be usurping a right never intended to be conferred, viz.: the right to select and control all possible routes between the same points. The distinction between such cases and the one before us we deem too obvious to warrant more extended comment. We therefore hold that the defendant company had the right to acquire, by purchase or condemnation, such additional land as it reasonably required for the extension or enlargement of its plant necessary to enable it to discharge its duty of furnishing to the public an adequate supply of water.

Nor can we see any merit in the contention that, conceding the existence of the power to condemn, there was not, in this case, a valid exercise of that power. The court below has properly found from the evidence that the necessity for the acquisition of the land existed, and that the piece selected was well adapted to meet the end aimed at. The defendant first sought to acquire it by purchase, and failing in that the directors of the company, by proper and formal action, authorized the institution of condemnation proceedings, which were carried on in the usual way prescribed by law. The property sought lay immediately alongside that already owned by the company and occupied by its plant. It was marked off by easily visible and well-defined boundaries. Its physical features were open to the eye of every officer of the company, and its adaptability for the use intended could be readily determined by such officers. To make a preliminary entry on such a plot of ground, an experimental survey, showing topography, grades, the exact location of each proposed building, etc., such as would be made by a railroad company before determining upon the feasibility of a route across country between distant points, would be so wholly useless that neither the law of reason nor any reasonable law could require it.

Finally, we are asked to reverse this decree because the president judge of the court of common pleas of Cumberland county refused the request, made by the appellant, that he decline to hear and dispose of this case, and that he call in some other judge for that purpose. This request was based on the fact that some years ago the presiding judge had been of counsel for the Riverton Water Company, and assisted in conducting the proceeding by which that company had secured, from the present plaintiff, the site for its original plant. That proceeding had long since been fully finished and ended. Neither the propriety nor soundness of the conclusion there reached w.as in any way involved in the present case. When a judge has been duly elected and commissioned, the law imposes on him the duty of hearing and disposing of the litigated questions'that may arise in his jurisdiction, unless some cause to the contrary, recognized by law as sufficient, exists. As long as the bench must be recruited from the ranks of the bar, we think it would be hypercritical to insist that no judge, actuated by a proper delicacy of feeling, should hear a cause between parties to one of whom he had at some time rendered professional assistance. However much the learned trial judge might have welcomed a proper avenue of escape from the hearing of a cause that demanded the expenditure of much time and labor, we are unable to say that his refusal of the appellant’s request left her any just ground of complaint. Being unable to discover any reversible error in the entire record, this appeal must be dismissed at the costs of the appellant.

Decree affirmed.


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    Citizens’ National Bank, Appellant, v. Marks.

      Judgment — Opening judgment — Contradiction of evidence — Laches.
    A rule to open a judgment should be discharged where it appears that the petition for the rule is flatly contradicted by the answer, that the defendant’s testimony stands alone and uncorroborated, and is squarely contradicted by the only other person having knowledge of the facts, that the testimony of such person is corroborated by the plaintiff’s possession of the note, and that the judgment stood unquestioned for nearly ten months.

      Accord and satisfaction — Payment—Assignment of wages.

    An agreement under which a creditor forgoes one-half of his claim in consideration of the debtor paying the other half out of his wages to'be earned in future, is not an accord and satisfaction where it appears that the assignment of the wages from the debtor to the creditor was never presented to or accepted by the debtor’s employer, who continued to pay .the wages to the debtor after the execution of the paper as before.

      Corporation — Directors—Relinquishment of debt — Contract—Banks and banking — Principal and agent.

    When a debtor of a bank sets up an agreement that would extinguish one-half of the debt in consideration of a second promise to pay the other half, and alleges that such an agreement was made by a director of the bank, the debtor is bound to show the authority of the agent in order to bind the bank. The mere fact that the agent was one of the directors, does not in itself amount to proof of his authority to bind the bank by such an agreement.

      Argued March 12, 1907.
    Appeal, No. 6, May T., 1906, by plaintiff, from order of C. P. Mifflin Co., April T., 190-1, No 53, making absolute rule to open judgment in case of The Citizens’ National Bank v. Florence L. Marks.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, J J.
    Reversed.
    Rule to open judgment. Before Woods, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order making absolute rule to open judgment.

      Sorace J. Culbertson, for appellant.
    As a general rule judgment will not be opened on the defendant’s unsupported evidence, which is contradicted by the plaintiff’s oath: Kocher v. Rice, 2 Luzerne Law Register, 24; Jenkintown Nat. Bank’s App., 23 W. N. C. 359; Roberts v. Cross, 4 Kulp, 525; Ice Co. v. McLoughlin, 12 W. N. C. 322; Zaring v. Earley, 2 Pearson, 352.
    When one person enters into an agreement with another in consideration of the payment of money which such person was legally entitled to receive, the agreement is without consideration: Dunn v. Washington B. & L. Assn., 2 Pennypacker, 109; Rice v. Morris, 4 Wharton, 249 ; Keen v. Vaughan, 48 Pa. 477 ; Rising v. Patterson, 5 Wharton, 316 ; Cunningham’s App., 122 Pa. 464; Hosler v. Hursh, 151 Pa. 415.
    The court will not open a judgment if upon all the testimony it would not justify sustaining a verdict for the defendant: Goodwin v. Cooper, 4 Kulp, 239 ; Steel Iron Co. v. Jacobs, 9 Pa. Superior Ct. 122; Kaier Co. v. O’Brien, 202 Pa. 153; Phillips v. Meily, 106 Pa. 537; Jackson v. Payne, 114 Pa. 67; Gardener’s App., 44 Legal Int. 357 ; Knarr v. Elgreu, 19 W. N. C. 531; Jones v. Backus, 114 Pa. 120; North v. Williams, 120 Pa. 109 ; Green v. Boyd, 13 Pa. Superior Ct. 651.

      Evfas C. Elder, with him E. W. Woods, for appellee.
    The judgment should have been opened: Stockwell v. Webster, 160 Pa. 473; Fisher v. Holbrook, 7 Pa. Superior Ct. 647.
    There was no accord and satisfaction: Potter v. Hartnett, 148 Pa. 15; Fowler v. Smith, 153 Pa. 689; Mechanics’ Bank of Harrisburg v. Huston, 11 W. N. C. 389; Flynn v. Hurlock, 194 Pa. 462.
    October 7, 1907:
   Opinion by

Head, J.,

In the spring of 1901 the defendants were indebted to the plaintiff in the sum of $2,000, evidenced by three notes, to wit: one for $500 due January 7, 1901, a second for the same sum due April 8,1901, and a third for $1,000 due May 14, 1901. The last mentioned note was probably a renewal of a former one of like amount. Each one- of these notes was signed by one W. C. Prickett and the appellee, Florence L. Marks. At the time the first loan was made the former was an entire stranger to the bank and to the communitj^ while the latter was the local manager of the telephone company, well known to the bank officials and had 'both property and credit. On the strength of her introduction and signature the loans were made. She was therefore bound not only in law but by every consideration of good morals for their repayment. After the first two loans of $1,000 and $500 respectively had been made, Prickett applied for a third one of $1,000. This was declined by the board of directors of the bank for the reason that they feared the appellee was allowing herself to become too heavily involved. Mr. Hays, one of the directors, explained to Miss Marks their reason for the action taken, and after some explanation from her, as to which the testimony is conflicting, he recommended to the board the discount of a third note for $500, the board assented, and the loan was made.

When the first note for $500 matured the makers failed to renew it. .Nothing was done until the second note for a like amount fell due. It then appeared that Prickett had left the community and. could not be located.

Hays was then directed to see Miss Marks and procure a renewal note or notes with some other security. At the time of his first interview pursuant to his instructions, he testifies — and in this he is not contradicted — he had with him the two past due notes of $500 each, but not the note for $1,000 not yet matured. He also states, “ I had drawn a note for One Thousand Dollars which was to take the place of the two notes for Five Hundred each, then overdue.”

As to what was said at the two or three interviews that followed, the testimony of the two persons engaged, there being no witness, is flatly contradictory and irreconcilable. They resulted in the appellee signing the note for $1,000 herself without personal security, and also signing the following: “ In consideration of the Citizens National Bank carrying a note of One Thousand Dollars, bearing even date herewith, I do hereby agree to pay thereon the sum of Twenty Dollars each and every month and do hereby assign that portion of my salary with the Telephone Company.”

Upon the report of Hays that this was the best he could do the bank received the new note for $1,000 and the paper above quoted; the appellee began to pay monthly at the rate stated, but had not yet quite paid out the note in full when the present proceeding began in 1904. The appellee by the death of her mother having meantime acquired considerable real estate, the bank, on March 8, 1904, caused a judgment to be entered on the warrant of attorney attached to the note for $1,000, signed by Prickett and Miss Marks which had been due since May, 1901, and upon which nothing had been paid. Mattel's so remained until December 28, 1904, on which date the appellee filed her petition asking that the judgment be opened on the ground that when she signed the note for $1,000 in June, 1901, Hays had agreed that the bank would accept that note, payable at the rate of $20.00 per month, as a full accord and satisfaction of her entire debt of $2,000. To the rule granted the bank filed an answer flatly denying any such agreement. At the hearing the appellee was unable to support her allegation by any other testimony than her own. -As against this there was the answer of the bank which clearly negatived every material allegation of the petition; the testimony of the note itself which had never been out of the bank’s possession; the fact that the judgment stood unquestionedou the record for nearly ten months; and the evidence of Mr. Hays which, as already stated, flatly contradicted the appellee. She was also contradicted as to some collateral matters by the witness Gregory, whilst the paper she signed along with the last note, so far from reciting any such agreement as she now sets up, rather corroborates the testimony of Hays. It is true the bank retained the two notes for $500 each signed by Prickett and herself, as well as the new note for $1,000 given by her alone. It had the right to hold Prickett and if anything could have been collected from him, her burden would have been lessened to that extent. It may be also that the cashier expressed his regret that she was compelled to pay such a large sum for a scoundrel who had abused her confidence. It was most natural he should. But neither these facts nor any others that we can discover, outside her own testimony, corroborate, in any substantial way, her theory that the bank deliberately gave away a large sum of money to relieve her of an obligation which she had voluntarily and knowingly contracted. Her case, therefore, falls far short of exhibiting the measure of proof recognized by the law as necessary to set aside a solemn written instrument under seal, and the rule should have been discharged because there was no sufficient evidence to warrant a chancellor in reforming or setting aside the written obligation to pay. To cite the well-known cases on this subject would seem to be useless.

But even if the parol agreement had been made as claimed by the appellee it could not be regarded as a good accord and satisfaction. It would be simply nudum pactum. It remained entirely executory and continued to be so, in part at least, down to the time of the filing of the petition. It was at best but another promise to pay part of a debt, all of which she already owed. The paper called an assignment, covering prospective wages to be earned in the future, was never presented to or accepted by the telephone company which continued to pay her wages to the appellee herself after the execution of the paper as before. Under these circumstances a plea of accord and satisfaction could not be sustained: Dunn v. B. & L. Assn., 2 Penny. 109; Keen v. Vaughan, 48 Pa. 477.

But above and beyond all this the record fails to show even a scintilla of evidence that Hays had any authority to enter into any such agreement as is now set up by the appellee. He did not pretend to her that he had authority, without the approval of the board, to make even the arrangement which he admits was made subject however to such approval. And this the appellee understood because she testifies, “ Q. Did Mr. Hays say anything ahout submitting it to the board of directors? A. He did.”

It is true sbe also testifies Hays told her the bank had accepted or would accept her offer, thus ratifying his act, but this amounts to nothing more than an attempt to prove agency by the declarations of the alleged agent. When a debtor sets up an agreement that would extinguish one-half of a debt in consideration of a second promise to pay the other half, and alleges such an agreement was made by an agent, -there ought to be at least some proof tending to establish the authority of the agent before the principal could be bound. The mere fact that Hays was one of the board of directors does not, in and of itself, amount to such proof : Cook on Stockholders, 712 ; Turnpike Co. v. Craver, 45 Pa. 386.

The order of the court below making absolute the rule to open is reversed and set aside and the rule is now discharged. The costs of this appeal to be paid by appellee.