text:
    Commonwealth v. Papsone, Appellant.

      Constitutional law — Equal protection of laws — Due process of law— Fourteenth amendment of federal constitution — Ownership of shotgun or rifle — Unnaturalized foreign-born resident — Act of May 8, 1909, P. L. 466.

    1. The Act of May 8, 1909, P. L. 466, entitled “An act to give additional protection to wild birds and animals and game, within the commonwealth of Pennsylvania; prohibiting the hunting for, or capture or killing of such wild birds or animals or game by unnaturalized foreign-born residents, forbidding the ownership or possession of shotgun or rifle by any unnaturalized foreign-born resident, within the commonwealth, and prescribing penalties for violation of its provisions,” does not violate the fourteenth amendment of the federal constitution, and is a proper and constitutional exercise of the police powers of the State.
    2. The Act of May 8, 1909, P. L. 466, is not in contravention of the existing treaty between the kingdom of Italy and the United States.
    Argued March 1, 1910.
    Appeal, No. 162, April T., 1910, by defendant, from judgment of Q. S. Allegheny Co., Oct. T., 1909, No. 27, affirming a summary conviction in case of Commonwealth v. Joseph Papsone.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment of an unnaturalized foreign-born resident for having in his possession a double-barrel shotgun.
    From the record it appeared that the defendant was convicted before a justice of the peace for having in his possession a double-barrel shotgun, and that he was sentenced to pay a fine of $25.00. He appealed from the conviction. After hearing, the court in an opinion by Evans, J., adjudged the defendant guilty as charged.

      Error assigned was the order of the court.

      Marcel Viti, for appellant.
    The act violates the provisions of the fourteenth amendment to the constitution of the United States: Yick Wo v. Hopkins, 118 U. S. 356 (6 Sup. Ct. Repr. 1064); Barbier v. Connolly, 113 U. S. 27 (5 Sup. Ct. Repr. 357); Lawton v. Steele, 152 U. S. 133 (14 Sup. Ct. Repr. 499); Mugler v. Kansas, 123 U. S. 623 (8 Sup. Ct. Repr. 273); In re Jacobs, 98 N. Y. 98; Gulf, etc., Ry. Co. v. Ellis, 165 U. S. 150 (17 Sup. Ct. Repr. 255); Duncan v. Missouri, 152 U. S. 377 (14 Sup. Ct. Repr. 570).
    The act is in contravention of the existing treaty between the kingdom of Italy and the United States: Chew Heong v. United States, 112 U. S. 536 (5 Sup. Ct. Repr. 255).

      October 10, 1910:

      W. iL Lemon, with him W. K. Shiras, for appellee.—
    The act is not a violation of the fourteenth amendment to the constitution of the United States: Trageser v. Gray, 73 Md. 250 (20 Atl. Repr. 905).
   Opinion by

Orlady, J.,

The defendant, an unnaturalized foreign-born resident of this commonwealth, was adjudged guilty of violating the provisions of the Act of May 8, 1909, P. L. 466, — in owning and having in his possession a double-barreled shotgun. The facts are not in dispute, and it is conceded that the proceedings in the summary conviction before the justice of the peace, and on appeal in the court of quarter sessions, were regular. The principal contention is, that the provisions of this act are in violation of the stipulations of the fourteenth amendment of the federal constitution, viz.: "Nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The act in question is entitled: "An act to give additional protection to wild birds and animals and game, within the commonwealth of Pennsylvania: prohibiting the hunting for, or capture or killing of such wild birds or animals or game by unnaturalized foreign-born residents; forbidding the ownership or possession of shotgun or rifle by any unnaturalized foreign-born resident, within the commonwealth, and prescribing penalties for violation of its provisions.” The first section provides: "It shall be unlawful for any unnaturalized foreign-born resident to hunt for or capture or kill, in this commonwealth, any wild bird or animal, either game or otherwise of any description, excepting in defense of person or property; and to that end, it shall be unlawful for any unnaturalized foreign-born resident within this commonwealth to either own or be possessed of a shotgun or rifle of any make. Each and every person violating any provision of this section shall, upon conviction thereof, be sentenced to pay a penalty of twenty-five dollars for each offense, or undergo imprisonment in the common jail of the county for the period of one day for each dollar of penalty imposed: Provided, that in addition to the above-named penalty, all guns of the before-mentioned kinds found in the possession or under control of an unnaturalized foreign-born resident shall, upon conviction of such person, or upon his signing a declaration of guilt as prescribed by this act, be declared forfeited to the commonwealth of Pennsylvania, and shall be sold by the board of game commissioners as hereinafter directed.” The third section provides: “That the possession of a shotgun or rifle at any place outside of buildings within this commonwealth, by an unnaturalized foreign-born resident, shall be conclusive proof of a violation of the provisions of section one of this act, and shall render any person convicted thereof liable to the penalty as fixed by said section.” And the fourth section: “That the presence of a shotgun or rifle in a room or house, or building or tent, or camp of any description, within this commonwealth, occupied or controlled by an unnaturalized foreign-born resident, shall be prima facie evidence that such gun is owned or controlled by the person occupying or controlling the property in which such gun is found, and shall render such person liable to the penalty imposed by section one of this act.”

As stated by the learned trial judge: “The right to hunt game is but a privilege given by the legislature, and is not an inherent right in the residents of the state. Wild animals and game of all sorts have from time immemorial been the property of the sovereign, and in Pennsylvania the property of the state. Its power to regulate and prohibit the hunting and killing of game has always been conceded.” This subject has been a fruitful source of legislation, and the frequent changes in our game and fish laws represent a zealous intention to define and supervise wild birds, animals, game and fish; to regulate how they are to be preserved and taken, declare the open and closed season when they may be taken; the manner and amount of the killing; and the device, implement and method permitted: Com. v. Immel, 33 Pa. Superior Ct. 388; Com. v. McComb, 39 Pa. Superior Ct.. 411.

In Lawton v. Steele, 152 U. S. 133, the supreme court of the United States declared: “Thepreservation of game and fish, has always been treated as within the proper domain of the police power, and laws limiting the season within which birds and wild animals may be killed and exposed for sale, and prescribing the time and manner in which fish may be caught, have been repeatedly upheld by the courts .... it is within the authority of the legislature to impose restrictions and limitations upon the time and manner of taking fish and game, considered valuable as articles of food or merchandise. The power to enact such laws has long been exercised, and so beneficially for the public that it ought not now to be called into question.” Even as between states, restrictions may be placed upon nonresidents, which differ from those imposed on residents, in regard to license charges and other regulations: Allen v. Wyckoff, 48 N. J. L. 90; Geer v. Connecticut, 161 U. S. 519; James v. Wood, 8 L. R. A. 448, and note.

The authority of the legislature being conceded, and the purpose being so meritorious, then every lawful provision deemed necessary to effect the purpose is within the legislative power. Due process of law is observed in the destruction of fish nets (Lawton v. Steele, 152 U. S. 153), in the forfeiture of vessels even though engaged for the coasting trade under the act of congress (Smith v. Maryland, 59 U. S. 71), and in the summary abatement of nuisances and destruction of property. Cards, dice and other articles used for gambling purposes are perfectly harmless in themselves, but may fall under the ban of the law and may be summarily destroyed. Many instances of the use of the police power are to be found (the segregation of bawds, and prohibiting the use of public sidewalks by public prostitutes, L’Hote v. New Orleans, 177 U. S. 587), the use of certain sections of a city for the manufacture of fertilizers (Fertilizer Co. v. Hyde Park, 97 U. S. 659), and other like instances have been held to be clearly within the police power: Pittsburg’s Petition, 32 Pa. Superior Ct. 210; 4 Thomp. Corps. 5488.

As stated in Barbier v. Connolly, 113 U. S. 27, “Neither the amendment (XIV) broad and comprehensive as it is, — nor any other amendment was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people.” We are within the provisions of the constitution when we regulate the manufacture and sale of food stuffs, Com. v. McCann, 14 Pa. Superior Ct. 221; the number of hours adult females should labor, Com. v. Beatty, 15 Pa. Superior Ct. 5; and in prohibiting women and children from working in coal mines, Act of May 15, 1893, P. L. 52; in prescribing the qualifications for physicians and undertakers, Com. v. Hanley, 15 Pa. Superior Ct. 271; when musical bands may play in the public streets, Wilkes-Barre v. Garabed, 11 Pa. Superior Ct. 355; when we authorize the killing of dogs following the track of protected game, Com. v. Frederick, 27 Pa. Superior Ct. 228; and in denying the right to aliens to obtain licenses to sell intoxicating liquors: Trageser v. Gray, 73 Md. 250; 9 L. R. A. 780.

The creation of the board of game commissioners of the state, whose duty it is to protect and preserve the game, song and insectivorous birds and mammals (Act of June 25, 1895, P. L. 273), and the department of fisheries having charge of the protection, propagation and distribution of fish (Act of April 2, 1903, P. L. 128) are but legislative conclusions that have been reached after more than a century’s experience on this subject, and it was deemed necessary and important to add the provisions of the act of 1909 in order to carry out more effectually the provisions of the earlier enactments.

This legislation is not directed against any particular nationality or-special class of aliens, but prohibits “any unnaturalized foreign-born resident” from hunting, capturing or killing any wild bird or animal, and “to that end it shall be unlawful” for such person “tohave or be possessed of a shotgun or rifle of any make.” The Act of May 5, 1864, P. L. 823, prohibiting the carrying of concealed weapons is not obnoxious to the bill of rights, saving the rights of citizens to bear arms in defense of themselves and the state: Wright v. Com., 77 Pa. 470. Nor does the provision in the fourteenth amendment which declares “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” affect this defendant in any way, as he is not a citizen.

An alien while domiciled with us is entitled to the protection of the laws and owes in return for this protection a temporary and local allegiance which continues during the period of his residence: 2 Am. & Eng. Enc. of Law (2d ed.), 64. We legislate primarily for our own citizens in granting the special privileges that are independent of our inherent rights. The alien is prohibited from doing many things to which a native-born or a naturalized citizen is entitled. He cannot exercise any political rights whatever, nor be compelled to fill any elective or appointive office; he is not qualified to serve as a juror; or to receive a license to sell liquor, hawk or peddle. A nonresident debtor is not entitled to the benefit of our $300 exemption law. Each state has its own exemption laws for the benefit of its own citizens: Collom’s App., 12 W. N. C. 309; Bank v. Lowery, 93 U. S. 72; Deni v. Penna. R. R. Co., 181 Pa. 525. The privilege to hunt game has been limited to our citizens, and, as was said in Presser v. Illinois, 116 U. S. 252: “If the plaintiff in error has any such privilege he must be able to point to the provision of the constitution or statutes of the United States by which it is conferred. For as was said by this court in United States v. Cruikshank, 92 U. S. 542, the government of the United States, although it is within the scope of its powers supreme and beyond the states, can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted or so secured are left to the exclusive protection of the state.”

A state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, when the jurisdiction is not surrendered or restrained by the constitution of the United States; by virtue of this it is not only the right but the bounden duty of the state to advance the safety, happiness and prosperity of its people, and to provide for its general welfare by any and every act of legislation which it may deem conducive to these ends: New York v. Miln, 36 U. S. 102. The act of 1909 defines two, several and independent offenses: first, the hunting of game by an alien; second, for an alien to either own or be possessed of a shotgun or rifle of any make. The primary subject of the act is the preservation of wild birds, animals and game, and under all our authorities, the privilege of hunting and taking game is limited, under defined restrictions, to our own citizens. Since long-range firearms, —shotguns and rifles, — are generally used in killing wild birds and animals, it is clear that the legislature, in prohibiting a foreign-born, unnaturalized resident from hunting game, intended to make the hunting of game by an alien the more difficult by taking away from such persons the means by which game is usually killed. This prohibition against having deadly and long-range firearms does not in any way deprive the alien of property without due process of law, but simply defines and limits his right to use firearms, by restricting such right to the use of short-range firearms, — revolvers, and pistols, and such other weapons, as may be necessary for defense of his person and property. “Whatever one may claim as a right under the constitution and laws of the United States by virtue of his citizenship, is a privilege of a citizen of the United States. Whatever the constitution and laws of the United States entitle him to exemption from, he may claim as an exemption in respect to, and such a right or privilege is abridged whenever the state law interferes with any legitimate operation of federal authority which concerns his interest, whether it be an authority actively exerted, or resting only in the express or implied command or assurance of the federal constitution or law. But the United States can neither grant nor secure to its citizens rights or privileges which are not expressly or by reasonable implication placed under its jurisdiction, and all not so placed are left to the exclusive protection of the states”: Cooley’s Principles, pp. 245-247. See also Bryce’s American Commonwealth, 406.

This defendant is not a citizen of the United States nor of this commonwealth. While he is within our jurisdiction he is entitled to the equal protection of the laws, subject to the limitations of the class of which he is a member. He is one of a very large class of aliens, whose sojourn in the country is but temporary and whose place of abode is capricious and uncertain, who cannot speak our language nor understand our customs or laws, who pay no taxes and share no part of the public burden. Under all our decisions his right to remain among us is subject to the limitations imposed upon all of his class: Trageser v. Gray, 73 Md. 250; 1 Bouvier’s Law Dict., title Alien; 1 Am. & Eng. Ency. of Law, 64. “Equal protection of the laws” cannot.be said to be denied whenever the law operates alike upon all persons and property similarly situated: Barbier v. Connolly, 113 U. S. 27; Walston v. Nevin, 128 U. S. 578.: And in determining what is due process of law we are bound to consider the nature of the property, the necessity for its sacrifice, and the extent to which it has heretofore been regarded as within the police power. ... So far as it is dangerous to the safety or health of the community, due process of law may authorize its summary destruction: Santell v. R. R. Co., 164 U. S. 701; Com. v. McComb, 39 Pa. Superior Ct. 411; In re Campbell, 197 Pa. 581.

This act of 1909 is not in contravention of the existing treaty between the kingdom of Italy and the United States. The rule of construction to be followed in such a case has but recently been considered by our Supreme Court in Deni v. Penna. R. R. Co., 181 Pa. 525, and Maiorano v. B. & O. R. R. Co., 216 Pa. 402. By art. 11 of the treaty between these countries “the citizens of each of the high contracting parties have liberty to travel in the states and territories of the other, to carry on trade, wholesale and retail, to hire and occupy houses and warehouses, to employ agents of their choice and generally to do anything incident to or necessary for trade upon the same terms as natives of the country, submitting themselves to the laws then established.” And art. Ill provides: “The citizens of each of the high contracting parties shall receive, in the states and territories of the other, the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives on their submitting themselves to the conditions imposed upon the natives.” As held in the last-cited case, “ In. construing a treaty the general rule obtains that the court is to be guided by the intention of the parties, and if the words clearly express the meaning and intention no other means of interpretation can be employed.” Is it a reasonable construction to hold that it was intended to clothe unnaturalized foreign-born residents with the same rights, immunities and advantages as are conferred solely as a privilege on citizens? The whole trend of our decisions is against such an interpretation. The terms of the treaty provide for the protection and security of their persons and property, and in this respect, — to such protection and security, — the enjoyment of the same rights and privileges as are or shall be granted to the natives on their submitting themselves to the conditions imposed on the natives.

An unnaturalized foreign-born resident cannot comply with the conditions imposed on a native-born or naturalized resident. Article XIV of the federal constitution defines this condition: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States, and of the states wherein they reside.” It would be a perversion of languag® to hold that the phrase, — the same rights and privileges as are or shall be granted to the natives, — was intended to or could embrace all the regulations affecting our franchise rights; the administration and execution of our laws; the special rights granted as privileges by our government to particular classes of our citizens. Such a construction would render nugatory the qualification for president of the United States as provided by art. II, sec. 1, par. 5, of our federal constitution and other limitations that are made equally explicit in our fundamental law.

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


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Citizens’ Electric Company, Appellant, v. Davis.

      Deed — Deed of partition — Easement—Bight of way.

    1. Where several tenants in common of a tract of land execute a deed of partition of the land, and in the deed provide that certain roads thereon “shall be used, enjoyed and maintained by the parties hereto, their heirs and assigns forever hereafter as perpetual easements over the several purparts which the same may cross,” the way thus provided for is not one by implication or necessity, but by express grant, and is appurtenant to every part of the land with which it is connected and the right to its use passes to every one to whom any part of that land is thereafter conveyed.
    2. A right of way cannot be destroyed by mere nonuser. Adverse occupancy for the statutory period must be added to nonuser by the dominant owner in order to extinguish an easement.
    3. Where a deed of partition of land reserves to all the parties thereto a right of way over an existing plank road on the land divided, the mere destruction of the planks by a flood and the failure to replace them, does not extinguish the easement, and this is especially so where the deed contains a mutual covenant for repairs.

      4. The remedy for an unauthorized use of a right of way is by action. Such use does not justify an obstruction of the way.
    Argued March 1, 1910.
    Appeal, No. 1, Feb. T., 1910, by plaintiff, from judgment of C. P. Lycoming Co., June T., 1906, No. 5, on verdict for defendant in case of Citizens’ Electric Company v. Ernest H. Davis, Trustee.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover damages for obstructing a right of way. Before Hart, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiff appealed.

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

      Herbert T. Ames and John G. Reading, with them Thos. H. Hammond and R. F. Allen, for appellant.
    Appellant’s counsel contend that Corey v. Edgewood Boro., 18 Pa. Superior Ct. 216, is decisive of the case at bar.
    The covenant creating the easement having been made by the parties to a deed of amicable partition, which parted and divided the land crossed by the plank road, the easement is presumed to be appurtenant to the land and this presumption is not rebutted by anything contained in the deed: Winston v. Johnson, 42 Minn. 398; Bowen v. Conner, 60 Mass. 132; Dennis v. Wilson, 107 Mass. 591.
    The law is plain that ways are never construed as personal where they can be construed as appurtenant to the land: Whitney v. Ry. Co., 77 Mass. 359; Horner v. Keene, 177 Ill. 390; Kent Mfg. Co. v. Long, 111 Mich. 383; Johns v. Davis, 76 S. W. Repr. 187.
    The deed of amicable partition of January 30, 1858, being a link in the chain of defendant’s title to the land allotted to B. Ii. Taylor et al., reserving the plank road as an easement, the defendant in accepting title became bound by the reservation in the deed, and is estopped from denying its existence: Winthrop v. Fairbanks, 41 Maine, 307; Newell v. Hill, 43 Mass. 180; Blood v. Crew Levick Co., 177 Pa. 606; Old Colony Trust Co. v. Transit Co., 192 Pa. 596; Watson v. Bioren, 1 S. & R. 227; Ehret v. Gunn, 166 Pa. 384.
    If the plank road was appurtenant to the land conveyed, then the rights was appurtenant to all the land conveyed and.the plaintiff had a right to use the road for any purpose for which it may from time to time be legitimately applied: Gunson v. Healy, 100 Pa. 42; Stove Co. v. Evans, 9 Pa. Superior Ct. 597; Ehret v. Gunn, 166 Pa. 384; Lewis v. Carstairs, 6 Whart. 193.
    The plaintiff had not and could not loose its right to the way except by a grant of equal solemnity, to that creating the easement, or adverse possession sufficient to constitute a prescriptive right. Mere nonuser would not bar plaintiff’s right if proven: Richmond v. Bennett, 205 Pa. 470; Erb v. Brown, 69 Pa. 216.

      Addison Candor, of Candor & Munson, for appellee.—
    The easement here is created by express grant. It is plainly and unambiguously set out in the deed. It is a “plank or railroad from the sawmills to the Pennsylvania Canal," to be “used, enjoyed and maintained" by the parties, their heirs and assigns, as a “perpetual easement." It is no more, no less than and nothing different from this. The rule of law is that the grant of an easement is to be strictly construed: Stevenson v. Stewart, 7 Phila. 293.
    The grant of the easement in this case was for a “plank or railroad" on the location described. The easement in this case, relied upon by appellant as established by the deed, calls for the use, enjoyment and maintenance of a plank or railroad from the sawmills to the Pennsylvania canal, and both termini, by the appellant’s own testimony, having been long since abandoned, the purpose for which said easement was established no longer exists, and the declared reason and necessity therefor having-ceased, the easement is terminated, and there could be no recovery by the appellant in this action against the appellee: Hahn v. Baker Lodge, 21 Oregon, 30 (27 Pac. Repr. 166).
    October 10, 1910:
    The plaintiff may lose his right afterwards as well as before by abandonment, surrender, release or cessation of the necessity on which it was founded: Wissler v. Hershey, 23 Pa. 333.
   Opinion by

Henderson, J.,

The title under which the plaintiff claims is found in a covenant contained in a deed between L. A. Ensworth and W. C. Bronson of the one part and B. H. Taylor, H. S. Brooks and D. H. Tuthill of the other part, dated January 30, 1858. The words of the covenant are as follows: “And it is further hereby covenanted that the road twenty feet in width on the north side of the platform in front of the saw mills erected on the premises above described; also the road along the northern shore of the head-race, and also the plank or railroad (from the saw mills to the Penna. Canal) along and on the Western bank of the canal and basin erected on the premises aforesaid shall be used, enjoyed and maintained by the parties hereto, their heirs and assigns forever hereafter as perpetual easements over the several purparts which the same may cross.” The parties to this deed were tenants in common of a tract of land with a sawmill and other buildings thereon which property they divided by the deed referred to. The land was divided into two purparts, the first of which was allotted to the first parties and the second, to the second parties to the deed. This action was brought to recover damages for an obstruction to the “plank or railroad (from the saw mill to the Penna. Canal) along and on the Western bank of the canal and basin erected on the premises aforesaid.” Part of this road was on the first and part on the second allotment. It had been used for a long time before the partition in connection with the business carried on on the premises and was so used thereafter until 1889 in which year a flood carried away the mill and the planks on the road and destroyed the canal. A portion of the property by divers conveyances afterward came into the possession of the plaintiff and another part was acquired by the defendant. The plaintiff’s right depends on the effect to be given to the provision of the deed creating the right of way. It will be observed that this provision is a mutual covenant. The way was not exclusively on the land of either of the parties to the partition. It was beneficial to each, however, and the object of its continuance is obvious. Each of the parties to the deed had a right of passage over the whole of the common property before the partition. Although not the owner of the whole he had an undivided interest in all and was not subject to restraint in its use. It was within the power of all of the owners in agreeing to an allotment in purparts to except a portion of the whole from the effect of the division and to agree that as to the excepted part the right of way should exist in behalf of all of the parties to the deed as it had existed when the property was held in common. As to this excepted way neither of the parties acquired the right to an exclusive use but all had the right of passage as they had before the division. This right of passage was not only given to the parties to the deed but was made a subject of inheritance and sale and was declared to.be a perpetual easement over the purparts which it crossed. The way thus provided for was not one by implication or of necessity, therefore, but existed by express grant. It was appurtenant to every part of the land with which it was connected, and the right to its use passed to every one to whom any part of that land was thereafter conveyed: Watson v. Bioren, 1 S. & R. 227; Gunson v. Healy, 100 Pa. 42; Stove Co. v. Evans, 9 Pa. Superior Ct. 597. Such an easement concerns the premises and inheres in the land and passes by deed: Washburn on Easements (4th ed.), 115. The covenant contains no restriction of the uses to be made of the road, and the presumption is that those beneficially interested therein may use it for the enjoyment of the land to which it is annexed. This enjoyment may vary with changing conditions of the property, but the right is appurtenant to the soil in the absence of clear restrictions. As this way existed by grant and was used by all the parties to the deed for a long time the inquiry arises, How has the right been lost by the plaintiffs so that the defendants may erect an obstruction thereon without liability? Generally speaking, an easement created by express grant cannot be destroyed without a new grant of equal solemnity or adverse possession continuing long enough to create a prescriptive title: Erb v. Brown, 69 Pa. 216; Richmond v. Bennett, 205 Pa. 470; Dyer v. Sanford, 50 Mass. 395. Nor can it be destroyed by nonuser: Curtis v. Keesler, 14 Barb. 511; Smiles v. Hastings, 24 Barb. 44; Erb v. Brown, 69 Pa. 216. Adverse occupancy for the statutory period must be added to nonuser by the dominant owner in order to extinguish the easement. It is argued that the grant was of a plank road and that as the planks were swept away by the flood and never replaced the right ceased to exist. It will be observed, however, that the way was not created by the deed. It had been in existence for a long time before that instrument was executed and was used by all of the owners of the property. Planks were laid on it to increase ease of transportation. When they were laid does not appear, but the .planks did not create the way; they improved it. The way was annexed to the land and the planks were an incident merely. It cannot be doubted that the object of the covenant entered into was to pass to the owners of each of the purparts a right of way suitable for their convenience as proprietors, and the words used must be considered as subsidiary to the main purpose and no construction should be given the language used which would defeat the grant. It could with equal logic be contended that the easement would be extinguished by the destruction of the planks by decay and hard usage. The way was a plank road at the time the partition was made and it was appropriately and definitely indicated and described in the language adopted by the parties, but it was obviously not the intention of the owners that it could only exist as a plank road and that if through neglect or consent the planks were not renewed the easement was to become extinguished. The evidence shows that the roadway is still there although the planks have not been replaced. Moreover, there was a mutual covenant for repairs, and certainly neglect to repair could not work a loss of the right where both parties were equally negligent. The covenant does not contain an implied condition that the road would be only used as a way for the transportation of lumber from the sawmill to the canal. The words "from the saw mill to the Penna. Canal” were inclosed in brackets in the deed and were clearly intended to be descriptive of the road and not of the uses to be made of it. Taking all of the terms of the covenant into consideration there is little room for doubt that the parties intended to reserve an open road as it then existed for their mutual use. The uncontradicted evidence shows that this extended to a point about fifty feet from the canal and then turned eastwardly to Hepburn street and it was thus an outlet to those public thoroughfares, and was intended to be a means of access to each of the shares allotted to the • parties to the deed. The covenant for the continuance of the road is not ambiguous and cannot be regarded as making its perpetuation depend on the fact that planks are laid on the ground along which the way is located. This is the more evident from the fact that in that part of the deed immediately preceding the agreement as to the road there is a provision for the use of the headrace in common by the parties to the deed, their heirs and assigns, in which there is an express restriction of the use to the mills then erected or thereafter to be erected on the premises. It thus appears that the parties understood the effect of a restriction and applied it to the water privilege but omitted it from the covenant with reference to the road. Moreover, it was agreed that this road should be a perpetual easement, and it is unreasonable to suppose that the parties contemplated that the property should always remain in its then existing condition or that the mills should be forever maintained for the manufacture of lumber. Corey v. Edgewood Boro., 18 Pa. Superior Ct. 216, is a similar case in which a like conclusion was reached.

It is not an answer to the plaintiff’s claim to say that it has used or proposes to use the way in a manner different from that allowed by the deed. The defendant cannot justify an obstruction of the way on any such ground. The remedy for an unauthorized use is by action. There is no pretense that the way has been surrendered by grant or extinguished by adverse possession, nor has any other available defense been introduced sufficient to defeat the plaintiff’s claim. We, therefore, feel bound to reverse the judgment non obstante veredicto entered in favor of the defendant.

The judgment is reversed and judgment is now entered in favor of the plaintiff on the verdict.


text:
    Walker’s Appeal.

      Taxation — Exonerations—Township commissioner — Township treasurer — Act of April IS, 1884, P- A- 609.

    1. A township treasurer has a right to assume in the absence of notice to the contrary that the township commissioners are acting within the scope of their authority when they exonerate the treasurer from the collection of some of the amounts entered in the duplicate.
    2. There is nothing in secs. 1 and 2 of art. IX of the constitution of Pennsylvania, nor in the Act of May 14, 1874, P. L. 158, which repeals sec. 48 of the Act of April 15, 1834, P. L. 509, relating to exonerations by commissioners, supervisors and overseers of the poor of townships.

      Taxation — County auditors — Appeal.
    3. On an appeal from the report of county auditors, although the appellant asserts that the erroneous result was reached by the improper allowance of certain items of the account, such assertion will not preclude the other party from bringing other items under investigation if that be necessary in order to determine what the true balance is.
    Argued March 8, 1910.
    Appeal, No. 38, March T., 1910, by Fletcher Walker, from judgment of C. P. Luzerne Co., Oct. T., 1908, No. 382, on appeal of Fletcher Walker from report of county auditor.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Appeal from county auditor.
    Ferris, J., filed the following opinion:
    The auditors of the township of Plains (a township of the first class) filed their report for the fiscal year ending March, 1908, in the office of the clerk of the court of quarter sessions on June 20, 1908, wherein they reported an indebtedness to the township of $112.81 by its treasurer, John J. Walsh.
    On July 13, 1908, Fletcher Walker, a taxpayer, gave bond and took an appeal from this report; and upon his petition averring that the auditors should have found a balance due the township of $1,781.37, the above stated rule was granted upon John J. Walsh to show cause why his account as treasurer as set forth in the report of audit should not be reformed and the treasurer be surcharged with the sum of $1,674.56 over and above the said balance of $112.81, “or with such sum as the court may determine, and judgment be entered against him and in favor of said township for the whole amount found to be owing by him.”
    Since this rule calls- for a reformation of the account and the ascertainment of the true amount due, if anything, by the treasurer to the township, the second rule, obtained by Walsh to show cause why he should not be allowed to appeal nunc pro tunc from the auditors’ report, was unnecessary for the purpose stated in his petition, viz., that of permitting the allowance of a credit to which he claimed to be rightfully entitled but which the auditors had failed to allow him in their report. As the court has no power, in the absence of allegation or proof of fraud in obtaining the report, to allow the appeal asked for after the expiration of the statutory period for taking it (School Dist. v. Wahlers, No. 2, 28 Pa. Superior Ct. 39) this rule must be, and is hereby, discharged.
    Fortunately for the treasurer, however, any equities to which he might be entitled may be considered in disposing of the rule for a reformation of his account.
    It is conceded that the account as set forth in the auditors’ report is incorrect and needs revision. The facts involved in such'revision are undisputed, and the only questions for the court to determine are questions of law.
    1. The first of these is whether the treasurer is entitled to credit for the amount of taxes which the township commissioners exonerated him from collecting, where, as is here admitted, the taxables owned personal property from which the taxes could have been made or real estate which might have been returned to the proper officials for sale.
    On the part of the appellant, it is claimed that the auditors should not have allowed the treasurer credit for these exonerations because the township commissioners had no power to grant them — that all statutes giving the right to exonerate from payment of taxes had been abrogated by the constitutional provision that all taxes shall be uniform, etc., and the Act of May 14, 1874, P. L. 158, passed in pursuance thereof.
    On the part of the treasurer it is argued that the commissioners had the right to exonerate these taxes, but even if they had not, the fact that they did so, whether their action was ultra vires or not, relieved the treasurer from the duty, and, indeed, deprived him of the lawful right to collect them and absolved him from any obligation to account for them; that when these taxes were exonerated they were in effect expunged from the duplicate by the same authority that had placed them there, and the treasurer had thereafter no more power to collect them nor duty to account for them than if they had been originally omitted from the duplicate altogether.
    The Act of April 15, 1834, P. L. 509, sec. 48, provides that, “the commissioners of the proper county, and the supervisors and overseers of the poor of the proper township, as the case may be, shall at all times make abatements or exonerations for mistakes, indigent persons, unseated lands, etc., as to them shall appear just and reasonable.”
    The Act of June 25, 1885, P. L. 187, provided for the annual election in each township of “an officer to be styled collector of taxes to whom the supervisors were required to deliver their duplicates of taxes with their warrants attached, and vested in him all the power for the collection of said taxes, during his term of office, heretofore vested in collectors of county taxes under existing laws.” Section 10 of this act provides that “exonerations may be made by the authorities and in the same manner as heretofore.” By the Act of June 6, 1893, P. L. 333, the tax collector’s term of office was extended to three years. The Act of April 28, 1899, P. L. 104, classified townships and provided that, in townships of the first class, a township treasurer should be elected triennially, upon whom were conferred all the powers possessed by township tax collectors under existing laws.
    It would thus appear that the township commissioners were authorized by statutes enacted both before and after the adoption of the constitution of 1874, “to make abatements or exonerations for mistakes, indigent persons, unseated lands, etc., as to them shall appear just and reasonable.”
    Article IX of the constitution of 1874 provides as follows:
    “Section 1. All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws; but the general assembly may, by general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit, and institutions of purely public charity.
    “Section 2. All laws exempting from taxation other than the property above enumerated, shall be void.”
    The Act of May 14, 1874, P. L. 158, was passed to carry these provisions into effect and provides that certain property falling within the general classes as to which sec. 1 of art. IX permits exemption “be and the same are hereby exempted from all and every county, city, borough, bounty, road, school and poor tax: Provided, That all property, real or personal, other than that which is in actual use and occupation for the purposes aforesaid, and from which any income or revenue is derived shall be subject to taxation, except where exempted by law for state purposes, and nothing herein contained shall exempt same therefrom.”
    It is urged that exoneration from the payment of taxes is exemption from taxation, and that these provisions of the organic law and the act of 1874, operate as a repeal of the act of 1834 in so far as the latter statute authorizes exonerations.
    It must be borne in mind, however, that art. IX, secs. 1 and 2, of the constitution, did not execute themselves so as to repeal any existing laws providing for the assessment and collection of taxes; they merely imposed restrictions upon future legislation when it should be enacted: Coatsville Gas Co. v. County of Chester, 97 Pa. 476; County of Erie v. City of Erie, 113 Pa. 360; Evans v. Phillipi, 117 Pa. 226. If the act of 1834, so far as it confers authority to exonerate, was repealed by the Act of May 14, 1874, P. L. 158, it must have been either expressly or by implication. The latter act contains no words of express repeal. Its language is affirmative. Its purpose as expressed in its title is not to subject to taxation property theretofore exempt, but “to exempt from taxation” certain kinds of property enumerated.

      The enacting clause of the act specifically does this. It contains nothing inconsistent with the power of abatement and exoneration conferred upon the township authorities by the act of 1834, and, therefore, could not operate as an implied repeal, pro tanto, of that act. The only provisions, if any, of the act of 1874 at all inconsistent with the power to exonerate are contained in the proviso to the act, viz.: “That all property, real or personal, other than that which is in actual use and occupation for the purposes aforesaid and from which any income or revenue is derived shall be subject to taxation,” etc. This proviso was held to be unconstitutional in Sewickley Borough v. Sholes, 118 Pa. 165, as imposing, instead of exempting from, taxation, and therefore being legislation upon a second subject not expressed in the title to the act, and thus violative of art. Ill, sec. 3, of the constitution. In Philadelphia v. Barber, 160 Pa. 123, the decision in Sewickley Borough v. Sholes was reaffirmed in so far as the proviso to the act of 1874 attempted to impose taxation; but the proviso was held to be a valid expression and explanation of the legislative intent in regard to the exemptions made in the previous enacting clause.
    We are, therefore, led to the conclusion that the power to exonerate conferred by the act of 1834, has not been abrogated by the constitution and the act of 1874, nor has it been by any subsequent legislation.
    It follows that, there being no evidence that this power was abused or illegally exercised in any case, the treasurer is entitled to credit for the amount of such exonerations, and the question whether their allowance by the township commissioners if it had been done without legal authority; would have relieved the treasurer, pro tanto, from his obligation to account for the full amount of his duplicate, need not be decided.
    2. The second question presented for consideration is whether the treasurer is entitled to a commission of five per cent on moneys received or collected by him (a) as the township’s share of liquor license fees, and (b) as license fees imposed by the township authorities upon telegraph or telephone companies at the rate of a certain sum for each pole erected by such companies within the township limits.
    This question has been decided in the negative by this court as to liquor license fees in the case of Kane v. Township of Wilkes-Barre, No. 168, June Term, 1907, and as to both liquor license fees and pole license fees, in the case of Davis v. The Township of Newport, No. 340, October Term, 1907. We are of opinion that these cases were properly decided and that such fees and not “taxes” within the meaning of sec. 14 of the Act of April 18, 1899, P. L. 104, fixing the compensation of treasurers of townships of the first class at “five per centum of all taxes received or collected by him.” The treasurer should, therefore, be surcharged with the amount of commissions at the rate of five per cent upon such fees allowed him by the auditors, unless he should be held entitled to a commission of one per cent thereon under the Act of June 7, 1907, P. L. 452.
    3. Whether he is so entitled or not is the third question of law involved in this proceeding.
    The act of 1907, just referred to, provides that “each township treasurer (in townships of the first class) shall receive, as full compensation for his services, a sum equal to five per centum of all taxes received or collected by him, and in addition thereto, a sum equal to one per centum on all other moneys received or collected by him, unless a different rate be fixed by ordinance of the township commissioners, passed thirty days prior to his election.”
    This act was passed during the incumbency of office of Mr. Walsh, and it is argued by appellant that the treasurer is a public officer within the meaning of art. Ill, sec. 13, of the constitution, which provides that, “no law shall extend the term of any public officer or increase or diminish his salary or emoluments after his election or appointment.” That the act, if it applies to Mr. Walsh, does increase his emoluments is obvious. Is he a public officer within the constitutional inhibition?
    The latest authoritative decision on this subject is Richie v. Philadelphia, 37 Pa. Superior Ct. 190. Richie was appointed a real estate assessor of Philadelphia county in 1903, his salary being fixed by the Act of April 12, 1873, P. L. 715, at $2,000 per annum. During his term of office an act was passed which increased the salaries of such assessors from $2,000 to $3,000 per annum. A case was stated to determine whether he was entitled to the increased salary, or whether he was a public officer within the^ meaning of sec. 13, art. Ill, of the constitution, and therefore not so entitled. The court, in an opinion by Judge Willson, held that he was a public officer within the constitutional prohibition. Upon appeal to the Superior Court the case was argued before all the judges, and on behalf of the assessor the distinction was drawn between “legislative” and “constitutional” officers and Com. v. McCombs, 56 Pa. 436; Com. v. Weir, 165 Pa. 284; Lloyd v. Smith, 176 Pa. 213; Com. v. Moir, 199 Pa. 534, and Kilgore v. Magee, 85 Pa. 401, were cited in support of the proposition that the assessor, being a “legislative” officer, was not a "public officer” within the meaning of sec. 13, art. Ill, of the constitution. In affirming the court below, Judge Henderson, who delivered the opinion of the Superior Court, said (referring to the authorities cited by the assessor), “they relate to the power of the legislature to abolish or diminish the term of an officer not commanded by the constitution. There is a very clear distinction, however, between the power of the legislature to abolish or regulate an office which it created, the control over which is unlimited, and a restriction of the constitution over such power as applied to a particular subject. Even if it be considered inconsistent that the legislature may abolish an office the term of which it may not extend, or by such abolition entirely take away a salary which it may not increase, the restraint is nevertheless imposed by the paramount law of the State and is not to be got rid of by interpretation in the face of clear, and unambiguous language. The power of the legislature to abolish an office not ordained by the constitution is unquestioned, for there is no restraint on such action, but as to both constitutional and legislative offices the command is that no law shall extend the term or increase or diminish the salary or emoluments after the election or appointment of the incumbent.” After conceding that certain agents, employees or petty officers were not intended (under the authority of Houseman v. Com., 100 Pa. 222) to be embraced in the constitutional provision, Judge Henderson goes on to say (p. 197), “Where, however, the officer exercises important public duties and has delegated him some of the functions of government and his office is for a fixed term and the powers, duties and emoluments become vested in a successor when the office becomes vacant, such an official may properly be called a public officer.” Being of opinion that the collector, custodian and disburser of public funds, in this case the township treasurer, falls within this definition quite as .truly as an assessor, we must consider this case as ruling the one before us, and conclude that the treasurer is not entitled to the benefit of the act of 1907 and, therefore, cannot lawfully claim credit in his account for a commission of one per centum on the liquor and pole license fees received by him. He should, accordingly, be surcharged to the extent of commissions allowed him on such money.
    4. The fourth question of law arising in the case is whether, in this proceeding, the treasurer can be allowed credit for the amount of uncollectible taxes (a credit omitted by the auditors from the account as stated by them) and if so whether he should not be surcharged with the amount of the commission allowed upon them by the auditors.
    This question is answered in the affirmative as to both of its divisions. Upon petition of the appellant this rule was granted not solely for the purpose of surcharging the treasurer but for the reformation of his account and the ascertainment of and obtaining judgment for "the whole amount found to be owing by him.” In order to do this it is, of course, necessary to allow him any and all credits to which he is justly and lawfully entitled. The undisputed testimony shows that, by reason of the death and removal of taxables or his inability after due diligence to' identify and locate them, the treasurer could not and did not collect taxes to the amount of $450.44. He is justly entitled to credit for this sum in the reformed account, and of course should not be allowed commissions on such uncollected taxes.
    October 10, 1910:
    A claim of credit has also been made by the treasurer for the amount of taxes which certain coal companies refused to pay because they had appealed from the assessment or valuation of their properties, the appeals being still pending. No such claim can be allowed. The Act of April 19, 1889, P. L. 37, giving the right of appeal expressly provides that the appeal shall not prevent the collection of the taxes complained of.

      Error assigned was order sustaining the appeal.

      John D. Farnham, for appellant.

      Thomas F. Farrell, for appellee.
   Opinion by

Henderson, J.,

The authority of the treasurer to collect the township taxes existed by virtue of the warrant of the township commissioners. The duplicate accompanying the warrant was a memorandum of the amount which the commissioners directed him to collect from the taxables whose names appeared therein. For reasons not appearing in the record the commissioners exonerated the treasurer from, the collection of some, of the amounts entered in the duplicate. This was in effect a withdrawal of these, items and an amendment of the duplicate to that effect as between the collector and the commissioners. To that extent they withheld the duplicate and thereby withdrew from the treasurer authority to collect the particular amounts. The presumption is that the commissioners acted within the scope of their authority. At any rate there is nothing to show that at the time the duplicate was in the treasurer’s hands and the exonerations were made by the commissioners the treasurer knew that the existing facts did not justify the exonerations. We consider the case within the ruling in Boro, of Millerstown v. McKee, 3 Pennypacker, 129. In that case there was an oral direction simply from the town council to the collector not to collect. The case was submitted to the jury on the inquiry whether in fact the council did instruct the collector to cease to collect taxes; and if so, that their verdict should be for the defendants in an action on the official bond. The treasurer had a right to assume that the commissioners were acting within the scope of their authority and to act accordingly. In this view of the case the appeal must fail.

The learned judge of the court below considered sec. 48 of the Act of April 15, 1834, P. L. 509, relating to exonerations by commissioners, supervisors and overseers of the poor of townships as still in force, notwithstanding secs. 1 and 2 of art. IX of the constitution. We need not enlarge on the argument contained in the opinion of the trial judge. The authorities cited show that the sections referred to did not execute themselves so as to repeal existing laws providing for the assessment and collection of taxes. They merely imposed restrictions on future legislation. The act of 1834 gives to the commissioners and supervisors of townships authority to make abatements or exonerations for mistakes, indigent persons, unseated land, etc., as to them shall appear just and reasonable. It is well shown in the opinion referred to that the Act of May 14, 1874, P. L. 158, contains no express repeal of the act of 1834, nor any implied repeal. None of its provisions are inconsistent with the act of 1834 and, therefore, involve no implied repeal. The portion of the act of 1874 which subjected property to taxation was held unconstitutional in Sewickley Boro, v. Sholes, 118 Pa. 165, because that subject was not embraced in the title of the act. Nothing was proved showing that the authority given to the commissioners by the act of 1834 was unlawfully exercised and the treasurer is therefore not. responsible for the exonerations. It may well be doubted in any view of the case whether the exonerations to the collector authorized by the act of 1834 are exemptions from taxation within the meaning of the constitutional provision. The exoneration of the treasurer was not necessarily a release of the property assessed from liability. The assessments were duly made and the taxables regularly charged. The release of the treasurer from liability for the collection of the taxes from which he was exonerated was in relief of the treasurer in order that he might make settlement as provided in sec. 48 of the act of 1834.

The second question involved is answered by our decision in Horning’s Case, 26 Pa. Superior Ct. 282, in which it was held that in an appeal from the report of county auditors although the appellant asserts that the erroneous result was reached by the improper allowance of certain items of the account this will not preclude the other party from bringing other items under investigation if that be necessary in order to determine what the true balance is. That decision fully sustains the action of the court below on this branch of the case.

The judgment is affirmed.


author: Rice, P. J.,

text:
    Commonwealth, Appellant, v. Hegedus.

      ■Criminal law — Quashing indictment — Appeals.
    1. The quashing of an indictment for error of law apparent in the record may be reviewed and reversed on appeal.

      Criminal law — Grand, jury — Unauthorized person in grand jury room— Stenographer.

    2. The mere presence in the grand jury room of a stenographer employed by the district attorney under the authority of the Act of April 27,1909, P. L. 258, “as an assistant in his office,” for the purpose of taking down in shorthand for the use of the district attorney the evidence upon which an indictment is returned, does not invalidate the indictment in the absence of anything tending to show that he was present when the grand jury deliberated or voted upon the bill, or that he participated in the proceedings in any other way than by taking notes of the testimony, or that the accused was injuriously affected thereby.
    Argued March 9, 1910.
    Appeal, No. 28, March T., 1910, by plaintiff, from order of Q. S. Lackawanna Co., Oct. T., 1909, No. 278, quashing indictment in case of Com. v. Mike Hegedus.
    Before Rice, P. J., Henderson, Orlady, Head, Beater and Porter, JJ.
    Reversed.
    Indictment for assault and battery.
    Demurrer to motion to quash indictment. Before Newcomb, J.
    The case turned on whether the district attorney had the right to have his official stenographer with him before the grand jury for the hearing of testimony for the purpose of talcing notes of the evidence of the witnesses.
    The court in an opinion by Newcomb, J., relying on Com. v. Kositchy, 17 Pa. Dist. Rep. 778, quashed the indictment.

      Error assigned was order quashing the indictment.

      David J. Reedy, assistant district attorney, with him Joseph O’Brien, district attorney, for appellant.
    It was the practice in certain courts at common law for some one connected with the court to be present with the grand jury when evidence was being given for the very purpose of seeing that the witnesses testified as they had before the binding-over magistrate: Reg. v. Hughes, 1 Car. & K. 519.
    October 10, 1910:
    The prosecuting attorney may, and should attend before the grand jury while they are receiving evidence, and may assist in the examination of witnesses; and he may be accompanied by his stenographer: Profatt, Jury Trial, sec. 57; United States v. Simmons, 46 Fed. Repr. 65; 1 Bishop New Crim. Proc., sec. 861; United States v. Reed, 2 Blatchf. 435.
    The secrecy of the grand jury room was for the protection of the state, not the respondent: 1 Reeves, History of Eng. Law; Huidekoper v. Cotton, 3 Watts, 56.
    In the case of State v. Brewster, 70 Vt. 341 (40 Atl. Repr. 1037), this identical question was before the court, and it was there held, “an indictment will not be quashed because the State’s attorney, with the consent of the court, is accompanied before the grand jury by a stenographer who takes down and afterwards transcribes for his use the testimony of the witnesses, no actual harm to the respondent being done.” See also State v. Bates, 148 Ind. 610 (48 N. E. Repr. 2); People v. Lauder, 82 Mich. 109 (46 N. W. Repr. 956).
    No printed brief for appellee.
   Opinion by

Rice, P. J.,

The Act of April 27, 1909, P. L. 258, provides that the district attorney of any county which shall have less than 250,000 and more than 110,000 inhabitants may employ a stenographer “as an assistant in his office” at a salary not to exceed the sum of $1,200 per year, to be paid in the same manner as the salaries of other county officers are paid. Lackawanna county belongs to this class of counties, and the question for decision is whether the fact that the stenographer employed by the district attorney under this act attended before the grand jury and took stenographic notes of the testimony of all of the witnesses who were examined upon the bill and transcribed the same in longhand for the use of the district attorney was legal cause for quashing the indictment, in the absence of allegation or proof that he was present when the grand jury deliberated or voted upon the bill, or that he participated in the proceedings in any other way than by taking notes of the testimony. The facts were brought upon the record by demurrer to the defendant’s motion, and it is apparent from the record as thus made up, as well as from the opinion of the learned judge of the quarter sessions, that the order quashing the indictment was not based upon a finding that the defendant was actually prejudiced by the presence of the stenographer during the examination of the witnesses or by his taking notes of their testimony, but upon the ground that these acts in and of themselves and irrespective of the question whether or not they produced any prejudicial effect entitled the party indicted, as matter of legal right, to have the indictment quashed. The decision is important because it is declarative of a rule of law that, if applicable here, would be applicable and controlling in every case in which the same facts appeared. Whilst it is true that a motion to quash a bill for matters dehors the record is addressed to the discretion of the court, a discretion regulated by judicial rule, and it is also true that according to the practice in some jurisdictions the decision is not open to review in the higher courts, yet in Pennsylvania the practice is otherwise and it is well settled that for error of law apparent in the record the quashing of an indictment may be reviewed and reversed on appeal: Com. v. Bradney, 126 Pa. 199; Com. v. New Bethlehem, 15 Pa. Superior Ct. 158. The same has been held in cases where the motion to quash was denied: Com. v. Hall, 23 Pa. Superior Ct. 104; Com. v. Edmiston, 30 Pa. Superior Ct. 54. It is therefore incumbent on us to consider the legal sufficiency of the reason for which, as the record shows, the indictment was quashed.

A part of the oath administered to grand jurors in Pennsylvania is, “the commonwealth’s counsel and your own to keep secret,” and, subject to certain qualifications about to be alluded to, it is the modern practice, founded on principles of public policy, for grand juries to conduct their investigations and deliberations upon bills submitted for their consideration in secret. The following statement by Professor Greenleaf of the reasons for the rule as to secrecy is recognized in many well-considered cases, and other text-writers state them in substantially, the same way. “One reason may be, to prevent the escape of the party should .he know that proceedings were in train against him; another may be to secure freedom of deliberation and opinion among the grand jurors, which would be impaired if the part taken by each might be made known to the accused. A third reason may be to prevent the testimony produced before them from being contradicted at the trial on the indictment by subornation of perjury on the part of the accused: ” 1 Greenleaf’s Ev. (15th ed.), sec. 252. Having regard to the generally accepted reasons for the rule, it is seen that the requirement of secrecy is mainly for the benefit of the sovereign or state, and at one stage of the common law of England it was held that the sovereign might waive it: 4 Blackstone’s Com. (Lewis’ ed.), 126, note by Christian. It would seem from what was said in Regina v. Hughes, 1 Car. & Kir. 519, that it was at one time the practice in certain courts of England for some one to be present with the grand jury when evidence was being given, for the purpose of seeing whether the witnesses testified as they had before the committing magistrate. So in State v. Brewster, 70 Vt. 341, 42 L. R. A. 444, it is shown by quotations from Chitty’s Criminal Law, p. 312, that the practice was recognized in certain classes of cases of hearing the evidence in court so that the grand jury might be better assisted in the performance of their duty. The learned author cites several authorities in support of this statement. A notable case where this practice was followed was that of the Earl of Shaftesbury. The counsel for the crown applied that the witnesses in support of the indictment might be, examined before the grand jury in open court. The foreman reminded the court of the oath which he and his fellows had taken to keep the king’s counsel secret; but the judges told him that the king might dispense with secrecy and disallowed the objection. The witnesses were accordingly openly examined, but the grand jury returned the bill "ignoramus:” 8 St. Tr. 759-821; Forsyth’s History of Trial by Jury, 224. There is one reported case in which this practice was followed in this country, but there it was condemned and set aside on writ of error, and it is believed that the taking of testimony upon bills in public, even in exceptional cases, would not now be allowed: State v. Branch, 68 N. C. 186; Bishop’s New Crim. Procedure, sec. 861; Edwards’ The Grand Jury, 117. We do not cite the old English cases above referred to as precedents that may be followed in Pennsylvania. They are interesting historically, however, and tend to show that in its origin the requirement of secrecy was deemed essential for the benefit and protection of the crown rather than the accused. And even at this day it is not held so sacred as to hamper the commonwealth in the prosecution of offenses against the criminal law. Although in some jurisdictions the prosecuting attorney is not allowed in the grand jury room, the general rule is, that he may be present before the grand jury to assist in the examination of witnesses, to advise it as to the admissibility of evidence and the proper mode of procedure, and to give general advice on questions of law: 20 Cyc. of Law Procedure, 1338. The general rule prevails in Pennsylvania. "The district attorney is the attendant of the grand jury; it is his duty as well as his privilege to lay before them matters upon which they are to pass, to aid them in the examination of witnesses, and to give them such general instructions as they may require. But it is his duty during the discussion of the particular case, and whilst the jurors are debating upon it, to remain silent. It is for the jury alone to consider the evidence and apply it to the case in hand; any attempt on the part of the district attorney to influence their action or to give effect to the evidence adduced, is in the highest degree improper and impertinent:” Com. v. Bradney, 126 Pa. 199. As the district attorney may be present during the examination of witnesses, it must be conceded that he may make such notes of their testimony as he is able, and, if versed in the art, may take the entire testimony stenographically and transcribe it in longhand for future use. In a prior case involving the same question the, learned judge who rendered the decision in the present case well said: “So far as concerns the intended use of the evidence, we fail to see how that in itself lends any weight to the motion. There is nothing to prevent the district attorney from noting the evidence, and if he were able to make complete notes, we can think of no reason why he cannot properly do so for his own advantage in the further preparation and conduct of the case:” Com. v. Kositchy, 17 Pa. D. R. 778. The same view is taken in State v. Brewster, and it does not seem to be open to question. It logically follows that if the order quashing the indictment is to be sustained it must be on the ground, and this alone, of the presence of the stenographer during the giving of the evidence. In considering this as a cause for quashing, it is to be observed that he was not a mere intermeddler, but was a person appointed by the district attorney, by express statutory authority, “as an assistant in his office” and was present to assist the district attorney, and for no other purpose. It is true he was not an assistant district attorney; the scope of his employment was limited by plain statutory implication to the rendering of such services as stenographers usually render. But the statute does not in express terms exclude from the scope of his duties the rendering of stenographic assistance to the district attorney in the grand jury room, and the generality of the language of the statute furnishes ground for plausible argument, at least, that the intention of the legislature was to enable the district attorney to require of him that kind of service wherever in the performance of his duties as district attorney such assistance should become necessary. Let us suppose, however, that the district attorney had not the absolute right to take his stenographer with him into the grand jury room. Does it necessarily follow that this act alone vitiated the indictment? A perusal of many cases from different jurisdictions shows that the mere presence of an unauthorized person in the grand jury room during the taking of testimony, although an irregularity, is not necessarily and under all circumstances fatal to the indictment; it depends, according to these authorities, upon the circumstances of the particular case. Many of these cases are cited in the opinion in State v. Brewster, 70 Vt. 341, and m Bishop’s New Crim. Procedure, sec. 861. In the latter work, after pointing out that the presence of persons not of the grand jury at the giving of the evidence appears to be deemed less objectionable than their presence at the deliberations thereon, the learned author says: “Yet if while the evidence is being given in a third person not participating is present under no suspicious circumstances — -as, a bailiff, or one drawn as a grand juror not in due form — the indictment will not be abated. Such person is under the same obligation of secrecy with the jurors.” So, in 20 Cyc. of Law & Pro. 1340, it is said, “but since officers are usually in attendance upon grand juries, and in the performance of their duties it is often necessary for them to enter the grand jury room, the mere fact that an officer is present during the examination of witnesses or even during the deliberations of the grand jury will not vitiate an indictment in the absence of proof that he influenced or attempted to influence the jury in making its findings.” The text is supported by State v. Kimball, 29 Iowa, 267; Richardson v. Com., 76 Va. 1007; State v. Bacon, 77 Miss. 366. The same has been held with regard to the presence of an interpreter: Fletcher v. Com., 123 Kentucky, 571. The principle that the mere irregularity of the presence of an unauthorized person is not necessarily fatal is recognized in Com. v. Bradney, 126 Pa. 199. After discussing the authority of the district attorney to be present at the taking of testimony, in the language heretofore quoted, Mr. Justice Clark said: “Indeed, it is the better practice, and the jurors have an undoubted right to require, that he should retire from the room during their' deliberations upon the evidence and when the vote is taken whether or not an indictment shall be found or a presentment made. In the absence, however, of any participation in the deliberations of the jury or effort on his part to influence their finding, we do not think that the mere presence of the commonwealth’s officer in the jury room would be good ground for quashing a bill; no case has been called to our attention which carries the rule to this extent.” We venture the opinion that the mere presence of the district attorney during the deliberations of the grand jury and their voting on the bill is an act which viewed abstractly is more likely to influence the grand jury than the mere presence of. a stenographer in the performance of his clerical duties to the district attorney during the taking of testimony. If the former act does not per se vitiate the indictment, it is difficult to see upon what sound principle it can be laid down as an inflexible rule of law that the latter act is fatal, where there is no ground for suspicion even that it was actually prejudicial to the accused. The fact that no Pennsylvania precedent can be found in the books where such practice has been approved or held not to be cause for quashing is not conclusive of the question: Mifflin v. Com., 5 W. & S. 461; Com. v. McHale, 97 Pa. 397. Its flexibility and capacity for growth and adaptation are the peculiar boast and excellence of the common law: Hurtado v. People of California, 110 U. S. 516. Common-law procedure would not be what it is to-day were it not for innovations that have been made from time to time. While the precise question does not seem to have been ruled upon in the appellate courts of Pennsylvania, it has arisen in other jurisdictions and been thoroughly considered in the light of common-law principles. The able opinion of the court in State v. Bowman, 90 Me. 363, sustains the conclusion reached by the learned judge of the quarter sessions in the present case. But State v. Bowman stands practically alone. The contrary view is taken and ably supported in State v. Brewster, 70 Vt. 341, 42 L. R. A. 444; State v. Bates, 148 Ind. 610; Courtney v. State, 5 Ind. App. 356; State v. Sullivan, 110 Mo. App. 75; Sims v. State (Tex.), 45 S. W. Repr. 705; U. S. v. Simmons, 46 Fed. Repr. 65; 20 Cyc. of Law & Pro. 1341; 17 Am. & Eng. Ency. of Law (2d ed.), 1293. Without prolonging this opinion by a review of the cases above referred to, it is enough to say that the great weight of authority supports the conclusion that the mere presence in the grand jury room, of a stenographer employed by the district attorney, by express statutory authority, “as an assistant in his office,” for the purpose of taking down in shorthand, for the use of the district attorney, the evidence upon which an indictment is returned, does not invalidate the indictment, in the absence of anything tending to show that he was present when the grand jury deliberated or voted upon the bill, or that he participated in the proceedings in any other way than by taking notes of the testimony, or that the accused was injuriously affected thereby.

The result of our examination of the question has led us to the conclusion that the rule as thus guardedly stated is sound in principle and is not in conflict with any technical rule of the common law in force in Pennsylvania.

The order is reversed, the indictment is reinstated and the record is remitted with a procedendo.


author: Head, J.,

text:
    Strohm v. Haverstick, Appellant.

      Negligence — Sidewalk—Coal hole — Case for jury.

    1. In an action to recover damages for personal injuries sustained by a fall into a coal hole opened in a sidewalk in the direct line of travel to defendant’s store, the case is for the jury where the evidence shows that the accident happened shortly after the hole had been opened for putting in coal and apparently closed; that the defendant’s uncontradicted proof showed that if the iron covering of the hole had rested where it was designed to rest on the collar provided for it, no displacement of it could have happened by a foot passenger stepping upon it; and that the plaintiff’s proof was conclusive that when he stepped upon the covering it slipped away from its bed and left the hole uncovered.
    2. In such a case it is not error for the court to refuse to charge that “greater care is required of one using the sidewalk within the space in which cellar doors, openings and steps may be lawfully maintained” than on the remainder of the footway, and to leave to the jury to say whether the plaintiff had exercised reasonable care under all the circumstances.
    Argued March 14, 1910.
    Appeal, No. 3, March T., 1910, by defendant, from judgment of C. P. Cumberland Co., Nov. T., 1907, No. 96, on verdict for plaintiff in case of Charles E. Strohm v. Samuel W. Haverstick.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Sadler, P. J.
    At the trial it appeared that the accident happened on August 1, 1907, by plaintiff falling into a coal hole in the sidewalk in front of defendant's store, situated directly on the line of travel to his store. There was evidence that early in the morning coal had been delivered to the hole and the covering apparently replaced. Shortly after-wards the plaintiff who was a letter carrier, in passing, in the performance of his work, fell into the hole and was injured.
    Defendant presented this point:

      4. Greater care is required of one using the sidewalk within the space in which cellar doors and openings and steps may lawfully be maintained, than in using the portion of the sidewalk within which such structures may not be maintained; and if the jury find that the plaintiff did not exercise such care, and the accident complained of resulted in consequence, then he cannot recover here, and the verdict should be for the defendant. Answer: We leave it for you to find whether or not the plaintiff exercised reasonable care, under all the circumstances, in passing along the sidewalk. If you find that he did not, the verdict should be for the defendant. [3]
    The court charged in part as follows:
    The defendant's duty was to have a pavement over which people exercising ordinary care could safely pass, and if he failed in this, and Strohm acted with care in walking over the same, and was injured, then there would be liability on his part. [41
    Verdict and judgment for plaintiff for $1,355.83. Defendant appealed.

      Errors assigned were (1) refusal of binding instructions for defendant; (2) refusal of motion for judgment for defendant n. o. v.; (3, 4) above instructions, quoting them.

      E. M. Biddle, Jr., with him J. Webster Henderson, for appellant,
    cited: Rushton v. Allegheny City, 192 Pa. 574; Merrigan v. Evans, 221 Pa. 1; Alexander v. Water Co., 201 Pa. 252; March v. R. R. Co., 206 Pa. 558; Oil Co. v. Torpedo Co., 190 Pa. 350; Carter v. Henderson & Co., 224 Pa. 319; Ault v. Cowan, 20 Pa. Superior Ct. 616; King v. Thompson, 87 Pa. 365; Stackhouse v. Vendig, 166 Pa. 582.

      F. E. Beltzhoover, with him Arthur L. Beeser and Conrad Hambleton, for appellee,
    cited: White v. Keystone Tel. Co., 211 Pa. 455; Sturtz v. R. R. Co., 225 Pa. 249; Cohen v. R. R. Co., 211 Pa. 227; Bucklin v. Davidson, 155 Pa. 362; Gates v. Penna. R. R. Co., 150 Pa. 50; Wetherbee v. Partridge, 175 Mass. 185 (55 N. E. Repr. 894); Foehr v. R. R. Co., 40 Pa. Superior Ct. 7; Homan v. Stanley, 66 Pa. 464; Donovan v. Rapid Transit Co., 102 Cal. 245 (36 Pac. Repr. 516); Pickard v. Smith, 10 C. B. (N. S.) 470; Cameron Mill, etc., Co. v. Anderson, 1 L. R. A. (N. S.) 198; Jennings v. VanSchaick, 108 N. Y. 530 (15 N. E. Repr. 424).
    October 10, 1910:
   Opinion by

Head, J.,

The case of Rushton v. Allegheny City, 192 Pa. 574, presents several marked and material features none of which appears in the case before us. There the city, the property owner and his tenant were jointly sued. Here the property owner alone is defendant. There the city had, in the exercise of its lawful powers, legislated on the subject of coal holes in the sidewalks and prescribed the manner in which they should be constructed and maintained. The property owner had complied with every requirement of the ordinance. No special or peculiar facts were proven to impose upon him a responsibility from which, prima facie at least, he ought to be relieved when he had strictly obeyed the law ordained by the paramount authority. Here the municipality had never legislated on the subject. It tacitly acquiesced in such use of the sidewalks by the property owners and thus left upon their shoulders the general obligation to exercise due care according to the circumstances. These suggestions alone are sufficient, we think, to show that the case cited is in nowise decisive of the question before us.'

In Scheafer v. Sand Co., 31 Pa. Superior Ct. 476, a situation was presented entirely different from that appearing in Rushton v. Allegheny, 192 Pa. 574, or in the record now before us. There neither the municipality, the property owner nor his tenant, was sued, the defendant being a sand company whose driver was delivering a load of sand into an open coal hole when the plaintiff was injured. The novelty of the plaintiff’s claim naturally invited some consideration of the general principles affecting the various classes of persons upon whom the law imposed some degree of responsibility where such openings were maintained in sidewalks of public streets.

In so far as the views of this court there expressed are applicable to the case in hand, they are fairly reflected in the following excerpts from the opinion: “A coal hole constructed like the one under consideration is not an unlawful and criminal nuisance per se. The right to construct and use it is a concession made by the public to the property owner, growing out of the necessities of modern urban life. True, the public exacts a consideration for the grant and this consideration the property owner, by accepting it, agrees to pay. ... It would not strike even a layman as singular that the law should impose on such owner, as a compensation for his privilege, the duty of reasonably safeguarding his opening so as to fairly protect the public in its ordinary use of the street,” etc.

The plaintiff here does not contend that a case of negligence is made out merely because the defendant constructed and maintained a coal hole in the sidewalk; nor does the latter deny his responsibility if his conduct has been shown to have failed to measure up to the standard stated. He does earnestly argue, however, that no facts have been proven which, in themselves or in the inferences justly deducible from them, furnish any foundation upon which may be properly predicated the conclusion that the plaintiff’s injury was attributable to any negligent act of his. And, moreover, that the learned trial court should have so declared as matter of law, and directed a verdict in his favor.

The defendant thoroughly established, by proof which was not contradicted, that the coal hole he maintained in the sidewalk was so constructed that if the iron covering rested where it was designed to rest, on the deep shoulder or collar provided for it, no misplacement of it could happen by a foot passenger stepping upon it. The plaintiff just as conclusively proved that he had suffered an injury because when he stepped. upon the covering it slipped away from its bed and left the hole uncovered. From these facts established the jury might fairly infer that, at the moment of the accident, some foreign substance had found its way to the shoulder of the rim thus preventing the iron covering from resting on its accustomed bed. Such an inference was not only invited but was almost impelled by the facts proven. It could not be fairly classified as a mere conjecture or speculation unsupported by evidence.

It seems clear enough that when the defendant opened the coal hole for the receipt of his coal and turned over, for the time being, to the driver of the coal wagon his own obligation to reasonably guard the dangerous opening in the sidewalk, he did not cease to be responsible for any negligent act or omission of that driver. When the latter had discharged his load he attempted to restore the metal covering to its accustomed place. To the eye of the passer-by it appeared as if he had succeeded. But the unfortunate experience of the plaintiff proves he did not.

As we have seen, the defendant was doubtless justified in assuming that when the heavy iron covering had been properly replaced on the collar provided for it, the sidewalk would be safe. What duty did he then owe to see that the covering was securely replaced? Was it his duty, in the exercise of reasonable care, to examine and see that the shoulder of the rim was free from dust and debris from the coal that had gone through the opening? Would a man of reasonable prudence and care have foreseen that such an accumulation was the probable result of unloading the coal in the quantity and manner shown by the evidence?

These questions we think could be properly answered only by a jury after having been adequately instructed by the trial judge. The standard of defendant’s duty, in many particulars, was not so well defined that the trial court could determine, as matter of law, that negligence had or had not been shown. The point for binding instructions and the motion for judgment n. o. v. were properly denied and the first and second assignments are overruled.

The third assignment complains of the answer to the defendant’s fourth point. It asked the court to say that “greater care is required of one using the sidewalk within the space in which cellar doors, openings and steps may lawfully be maintained” than the remainder of the foot-way. Even if, arguendo, 'we concede the correctness of the general principle asserted by the point, it could not have been properly applied here, at least without modification, because the evidence showed that the opening into which plaintiff fell, was directly in the line of travel usually adopted by the public entering or leaving defendant’s store and coming from or going to one portion of the town. The learned trial judge was therefore right in holding that the measure of care required of the plaintiff was, under all of the circumstances, for the jury.

The remaining assignment to an excerpt from the general charge is best and fully answered by an examination of the entire charge itself. It demands no further discussion here.

, Judgment affirmed.

Porter, J., dissents.


author: Head, J., Morrison, J.,

text:
    Lang, Appellant, v. Punxsutawney Borough.

      Sewers — Damages—Trespass— Viewers.

    Where property is injured as the direct, immediate and necessary or unavoidable consequence of the location or construction of a sewer, the only remedy for the injuries sustained is by petition for the appointment of viewers to assess the damages; the owner cannot, for such injuries, maintain an action of trespass; but where the injuries are due to the negligent act of the municipality in permitting the sewer to become filled with sand, gravel, or other débris, so that it cannot accomplish the object for which it was designed, an action of trespass is the appropriate remedy.
    October 10, 1910:
    Argued May 3, 1910.
    Appeal, No. 30, April T., 1910, by plaintiff, from order of C. P. Jefferson Co., Nov. T., 1907, No. 107, refusing to take off nonsuit in case of J. S. Land v. Punxsutawney Borough.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover damages to real estate caused by the construction of a sewer. Before Hall, J., specially presiding.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was refusal to take off nonsuit.

      H. Clay Campbell, for appellant.
    The defendant corporation is liable in this case upon two distinct grounds, viz: (1) For the diversion and change of the natural flow of Graveyard Run, without having provided a sufficient outlet for the water. (2) For gross negligence in permitting the ends of the sewers to connect at the surface with open ditches, allowing the gravel, sand and other matter from the surface during rainstorms to be carried into the sewer, clogging it up and flooding plaintiff’s premises: Weir v. Plymouth Borough, 148 Pa. 566; Elliott v. Oil City, 129 Pa. 570; Colwyn Borough v. Tarbottom, 9 Pa. Superior Ct. 414.
    Where the change of the natural flow of a stream of water by a municipality has been made by it in consequence of its public works, it becomes liable not only for the negligent manner of performing the work, but for the insufficient capacity of the sewer or outlet to carry off the water: Haus v. Bethlehem, 134 Pa. 12; Stork v. Philadelphia, 195 Pa. 101.

      W. M. Gillespie, for appellee.
   Opinion by

Head, J.,

Prior to the occurrences of which the plaintiff complains the defendant borough, in the exercise of a familiar municipal power, had constructed a sewer which might be designated the Farmers alley or Findley street sewer. It had also constructed a separate or branch line known as Graveyard run sewer. This latter occupied the bed or channel of a spring run, known as Graveyard run, and apparently was designed to take care of the water it carried, as well as for general sewer purposes. The premises of the plaintiff were connected with the sewer first mentioned. Some considerable time after this connection had been made, the borough, in the further development of its sewer plan, connected up by a third line the two separate or branch lines already mentioned.

We do not understand it to be contended by the able counsel for appellant that there was any lack of municipal power to construct and locate these several lines. As a consequence these acts were lawful municipal acts intended to promote the public good and the common welfare. If the property. of the plaintiff suffered any injury as the direct result of this public work, when done in a lawful way, he would be within the protection of the constitutional provision on that subject, and would be entitled to compensation for such injury.

But it is plain that the remedy for such an injury would not be by an action of trespass, because the municipal act which caused the injury was but an exercise of lawful power, the same power under which it grades its streets and makes other improvements of that character. For all such injuries, damages must be obtained through boards of viewers so that the entire injury can be provided for in a single assessment of damages. So much was decided by this court in Cooper v. Scranton City, 21 Pa. Superior Ct. 17. The reasons why damages directly resulting from the location or construction of a public sewer cannot be recovered in an action of trespass are well set forth by our Brother W. D. Porter in the opinion in the case cited and need not here be repeated.

It seems clear enough to us that the act of the defendant borough in locating and constructing these sewers, even though one of them was located in the channel of Graveyard run, was of a radically different character from those for which recoveries in trespass were sustained in Weir v. Plymouth Borough, 148 Pa. 566; Torrey v. Scranton, 133 Pa. 173, and kindred cases. In these the boroughs, by artificial means, had caused to accumulate quantities of surface water and then turned these accumulations upon the properties of the plaintiffs where it would not have flowed by the operation of natural laws. Nor do we think that the principle declared by this court in Metzgar v. Lycoming Township, 39 Pa. Superior Ct. 602, is applicable to the case of a borough or city armed with legislative power to construct and maintain a system of sewers within the corporate limits. As we have already indicated, the location and the construction of such sewers was but the exercise of the same municipal power under consideration by this court in Cooper v. Scranton, 21 Pa. Superior Ct. 17, although there the power was exercised to grade streets, whereas here it was exercised in the discharge of the kindred municipal function of constructing sewers.

Without attempting to refer in detail to the many cases which are cited in the briefs of counsel and considered by the learned court below, we are of the opinion that in so far as the plaintiff’s property was injured, if it was injured, as the direct, immediate and necessary or unavoidable consequence of the location or construction of the sewers named, or any of them, such injury would furnish no foundation for an action of trespass. To this extent the learned trial judge was right in entering a compulsory non-suit and refusing to take it off.

But although a municipality cannot be called upon to respond in an action of trespass for the proper exercise of a municipal power, even when attended by injury to private property, it is equally clear that if the power be exercised in a negligent manner, the borough must answer. As a consequence, if the borough negligently permitted its sewer to become filled with sand, gravel, or other débris, so that it could not accomplish the object for which it was designed, and a citizen is thereby injured, he may recover in an action of trespass. This distinction was fully recognized by the learned trial judge. For the plaintiff’s statement, although lacking in the precision with which a plaintiff should state the nature and cause of his injury, nevertheless does complain that large amounts of gravel, slate and other earth matter were carried into said sewer, and this, with the heavy flow of water, filled up the end of the sewer and caused water, sewerage and filth to flow back up into the plaintiff’s cellar. Because of this averment the learned trial judge on several occasions properly overruled objections to testimony offered by the plaintiff tending to establish this averment.

In his opinion, however, refusing to take off the nonsuit, the learned court below seems to have become satisfied not only that there was no averment in the plaintiff’s' declaration which would support testimony tending to show that the sewer had been permitted to fill up; but further, that there was no proof which would be sufficient to establish such an averment even if clearly made. In neither respect are we able to assent to the correctness of his view.

We have already substantially quoted the language of the declaration and averted to the fact that the learned trial judge on more than one occasion admitted testimony because of such averment which would otherwise have been inadmissible. The plaintiff himself, when on the stand, declared that he had seen the borough officials cleaning out the sewer, and thus described what he saw: Q. What kind of material did they get out of that sewer there? Did you see it? A. Well I have seen coal, big cinder and gravel that size (indicating) and dirt of different kinds. Q. Sand? A. Not altogether. Sewer dirt, all kinds of dirt.” On another occasion he was asked: "Q. Do you know that the coal and cinder was washed out of Graveyard run? A. I know that there was gravel enough to plug the sewer up.” A witness, Torrence, having stated that the sewer was shut up half the time and overflowed, etc., was asked: “What closed that up, Mr. Torrence? A. Well, it was closed up by gravel and stuff from the fair ground hill and what washed in off them other hills into them other sewers and came down under the house along Graveyard run. ... It would come down to the electric light plant there, and there was a bend and it would fill up there that high (indicating). Sometimes throw out nearly a wagon load of gravel and stuff and shut it up entirely below.”

In the face of such testimony we cannot agree that the case was properly withdrawn from the consideration of the jury. Being of opinion that there was a sufficient averment that the defendant borough had permitted its sewer to bécome closed up and that there was evidence in support of that averment which would have sustained a verdict, we must conclude that the learned judge below fell into error when he refused to take off the compulsory nonsuit.

Judgment reversed and a procedendo awarded.

Morrison, J.,

concurring:

I concur in the judgment of this court, in the above-entitled case, but I would go a step further and hold that the case is ruled by Metzgar v. Lycoming Twp., 39 Pa. Superior Ct. 602. I would so hold because Graveyard run appears to be a natural stream of water, flowing within well-defined banks, and if the municipal authorities of the borough undertake to carry this stream through a sewer, care must be exercised that the sewer is of sufficient size and proper structure to take care of the water of the run and such water as other sewers may carry into it, and this is so even in times of ordinary floods.