text:
    Steinman, Appellant, v. Edison Electric Illuminating Company.

      Corporations — Light, heat and power companies — Classification of customers — Rates—Discrimination.
    1. A light, heat and power company organized under the Act of May, 8, 1889, P. L. 136, may divide its customers into different classes and charge different rates to different classes, provided that the discrimination' is not undue or unreasonable, and that each rate is equal and uniform to all individuals in their respective classes. Thus a company may allow a lower rate for each unit of electric current to customers who consume a certain amount and pledge themselves to deal exclusively with the company for a stated period, than to customers who consume a less amount without binding themselves to take the current for any particular period.
    2. In such a case, where the court cannot declare from a mere inspection of the contracts that there was an unlawful discrimination, evidence is admissible to show the reason on which the classification was based, the circumstances and conditions that surrounded the company at the time, and the advantages to be derived by it from such classification.
    Argued Nov. 9, 1909.
    Appeal, No. 22, Oct. T., 1909, by plaintiffs, from' judgment of C. P. Lancaster Co., March T., 1906, No. 32, on verdict for defendant in case of A. J. Steinman and Charles S. Foltz, trading as Stein-man & Foltz, Publishers of the Intelligencer, v. The Edison Electric Illuminating Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for an alleged unlawful discrimination in rates for. electric lighting. Before Landis, P. J.
    At the trial when C. E. Titzel was on the stand he was asked the following question:
    . “Q. I call your attention to the fact that the contract with M. T. Garvin & Company, made May 20, 1902, provides for a period of three years, with privilege of five, and that Garvin covenants and agrees to take all the electric current necessary for lighting and power used in the store, at a designated rate, subject to a discount for forty per cent, for lighting purposes;:that the contract with the Cochrans is for five years, subject to the same discount for lighting purposes; that the contract with the New Era Company is for five years, with the privilege of ten, subject to the discount of forty per cent for current used for lighting purposes. State whether or not like terms were given to any other patrons or consumers applying, who you knew consumed a specified quantity or over?”
    Mr. Atlee: If the court please, that offer is objected to, because the contracts speak for themselves and express the consideration to this defendant company for entering into the contracts.
    The Court: That may be; but still, they would not show that the same contract was not offered to others. The contracts would not show that.
    Mr. Atlee: I object as immaterial and irrelevant, further.
    The Court: It goes to the question of discrimination— unjust discrimination.
    Plaintiffs except. Bill of exceptions signed, sealed and filed for the plaintiffs. [1]
    Mr. Hensel: “Q. Were those or like terms given to all other patrons or consumers, whose patronage amounted to a specified sum or excess? A. Yes, sir; they were given the same. Q. It has been testified here that, in this period between 1902 and'1906, there was no competing company in this city. Was there or not, in this city, besides yours, another organized and incorporated electric light company?”
    Mr. Atlee: If the court please, that is objected to as immaterial and improper and irrelevant, as the contracts speak for themselves.
    The Court: We will let him answer.
    Plaintiffs except. Bill of exceptions signed, sealed and filed for the plaintiffs. [2]

      “A. The Lancaster Electric Light, Heat & Power Company were incorporated. Q. About what.amount, of money did you spend in the development and increase of your lighting facilities subsequent to the date of the execution of these contracts?”
    Mr. Atlee: If the court please, that is objected to as immaterial, irrelevant and incompetent; because the contracts do not set forth any special reason other than that expressed in the contracts. They speak for themselves.
    The Court: I do not see that it makes very much difference. I think we will let the facts come out.
    Plaintiffs except. Bill of exceptions signed, sealed and filed for the plaintiffs. [3]
    Mr. Hensel: “Q. What amount of money? A. Our company spent about $300,000 on the power plant.”
    The court charged in part as follows: .
    [But, on the other hand, if the company, from proper motives and for proper business reasons, agreed with certain persons who consumed 500 kilowatts per month, to furnish them electricity at a certain fixed rate under certain conditions, and all persons of that class who wished to take advantage of that, rate could do so, if they so desired, then there is no discrimination, simply because the parties of that class received larger discounts than the plaintiffs and other persons who did not consume that amount of electricity and were not embraced in that class. If, therefore, the jury find that such were the circumstances, and under such circumstances there was no unjust or unreasonable discrimination in the fixing of these rates in the contracts, then your verdict should be for the defendant.] [4]
    Verdict and judgment for defendant. Plaintiffs appealed.

      Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions, and (4) portion of charge quoted above.

      July 20, 1910:

      Benj. C. Atlee, for appellants.
    The implied condition of the grant of all corporate franchises of even quasi public nature is that they shall be exercised without individual discrimination in behalf of all who desire: Baily v. Gas-Fuel Co., 193 Pa. 175; Mercur v. Electric Light, etc., Co., 19 Pa. Superior Ct. 519; Armour Packing Co. v. Illuminating Co., 100 N. Y. Supp. 605; Hays & Co. v. Pennsylvania Co., 12 Fed. Repr. 309; Kinsley v. Buffalo, N. Y. & P. R. R. Co., 37 Fed. Repr. 181.

      W. U. Hensel, for appellee.
    There was no unlawful discrimination: Baily v. Gas-Fuel Co., 193 Pa. 175; Hoover v. R. R. Co., 156 Pa. 220; Borda v. R. R. Co., 141 Pa. 484; Mercur v. Electric Light Co., 19 Pa. Superior Ct. 519; Bald Eagle Valley R. R. Co. v. R. R. Co., 171 Pa. 284; Rieker v. Lancaster, 7 Pa. Superior Ct. 149; Missouri Pac. Ry. Co. v. Texas & P. Ry. Co., 30 Fed. Repr. 2.
    A contract to carry freight for a party at a specific rate, being less than its established schedule, is not void as being an unjust discrimination and against public policy, in the absence of evidence that such special rate is an exclusive privilege: Ragan v. Aiken, 9 Lea, 609; Ex parte Benson, 18 S. C. 38; Avinger v. South Carolina Railway Co., 29 S. C. 265; Johnson v. Pensacola & P. R. Co., 16 Fla. 623; Christie v. Missouri Pacific Ry. Co., 94 Missouri, 453; Bayles v. Kansas Pacific Ry. Co., 5 L. R. A. 480; Cleveland, etc., Ry. Co. v. Closser, 9 L. R. A. 754; Com. v. Randall, 225 Pa. 197.
   Opinion by

Head, J.,

The defendant electric light company is a corporation created under the general laws of the state. It is therefore invested with the powers and clothed with the obligations common to all companies of its kind.

The Act of May 8,1889, P. L.‘ 136, enumerates some of these powers in the following language: “Every such corporation shall have-authority to supply light, heat and power or any of them by electricity to the public .... at such prices as may be agreed upon,” etc. The plaintiffs in the conduct of their business use light or power or both of them, and purchase the producing electric current from the defendant company. They buy it under a contract which has no definite term and which may be abandoned by the plaintiffs at their pleasure. They are at liberty to consume as much or as little of the current as they choose and are required to pay only for what they use. They reserve the right to purchase any portion of their needed supply from any other competing company. They pay each month for what they have consumed at a rate agreed upon by themselves and the company, which ratejs uniform to all persons or corporations in that community who consume the same quantity of current under the conditions above noted.

It appears from the testimony that in 1902 the defendant company found itself confronted with the probability of serious competition in the then near future. Although it then had a considerable sum of money invested in its plant and .business, it was contemplating the necessity of the investment of a large additional sum in order to increase its facilities and render a larger and more efficient service to its future patrons. Being desirous of so arranging its business that a considerable portion of its expected revenue might become fixed and ascertainable, it undertook to divide its consumers into two classes, the one to embrace all persons and corporations whose business required the consumption of not less than a fixed amount of electric current annually and who would agree to bind themselves by a contract, extending over a period of years, to purchase their entire needed supply of current from this defendant. The remaining class to embrace all those whose consumption of electric current was smaller than the amount so fixed, and who remained at liberty to buy or not buy from the defendant as their inclination or business advantage might direct. To the first class a rate was given which would make the current sold to them cheaper per fixed unit than the rate imposed upon the other class. There is no contention that each rate was not equal and uniform to all individuals in their respeétive classes.

The plaintiffs were at the time this classification was adopted and have since remained in the second class. Having learned that certain persons or corporations in their community had entered into long time contracts with the defendant of the character above referred to, and were therefore receiving their electric current at a less rate than the plaintiffs were charged, they brought this action, alleging they had suffered a legal injury by reason of this discrimination between consumers and that the extent of their injury is the difference between the price they paid during the period covered by the action and the price charged to the other class of consumers.

To establish the injury on which they found their action, the plaintiffs must ask the courts to hold that it is not competent for the defendant corporation to make any discrimination at all in the rates charged to its consumers, or that if discrimination under any conditions may be lawful, the necessary conditions are not here present. The first of these contentions is certainly untenable. As we have already seen, under the general laws providing for the incorporation and regulation of such companies, authority is given to them to supply light, heat and power to the public “at such prices as may be agreed upon.” We may concede that the defendant company belongs to that class of corporations which, for want of a better name, we call quasi public. Of course we are not to presume that the legislature, in passing the act of 1889, was unmindful of the constitutional provision restricting the powers of such companies, or of its own earlier statute enacted for the purpose of carrying into effect that provision. But it ought to be plain enough that when one asserts that a trading corporation, in classifying its patrons in the manner above described, has committed an unlawful act, the burden is on him to point to the provision of our fundamental or statute law denying to such company the right to apply, in the conduct of its business, a principle as old as trade itself, and familiar to everyone engaged in every branch of commerce. The operation of this principle may be illustrated by what would be considered an axiom in the commercial world, viz.: that the merchant who buys his sugar or flour in thousand barrel lots will be able to supply himself at a lesser rate per barrel than his smaller competitor who buys in ten barrel lots.

Section 3 of art. XVII of our constitution declares: “All individuals, associations and corporations shall have equal right to have persons and property transported over railroads and canals, and no undue or unreasonable discrimination shall be made in charges or in facilities for transportation of freight or passengers within the state or coming from or going to any other state. Persons and property transported over any railroad shall be delivered at any station at charges not exceeding the charges for transportation of persons and property of the same class in the same direction to any more distant station; but excursion and commutation tickets may be issued at special rates.” The most casual reading of the language of this provision at once indicates that there is no prohibition against discrimination in rates without more. It is only when such discrimination is shown to be undue or unreasonable that the restraining force of the organic law becomes applicable. The provision in terms recognizes the right of a railroad company to sell excursion tickets at a special rate. This is nothing more than an application of the principle that the railroad company may sell a thousand tickets to a given destination at a less rate than it would charge to a single passenger going to the same destination. Or it may with like- propriety sell transportation to a class of men, who will agree to travel on its line every day in the year, for less than it will sell like transportation to another class, the members of which reserve the liberty to travel only when they choose.

Section 2 of the Act of June 4,1883, P. L. 72, enacted for the purpose of enforcing the foregoing provision of the constitution, declares: “No railroad company or other common carrier engaged in the transportation of property, shall charge, demand or receive from any person, company or corporation, for the transportation of property or for any other service, a greater sum than it shall receive from any other person, company or corporation for a like service from the same place upon like conditions and under similar circumstances,” etc. The legislative intent is thus as plainly expressed in fitting language as was that of the framers of the constitution. The purpose of both was to prohibit only undue and unjust discrimination by public corporations, but both plainly recognize that there may be discrimination in rates which is neither undue nor. unreasonable, and the act last quoted points to the conditions on which such a company may justly classify its patrons and fix definite rates applying to each class.

The decisions of our courts of last resort have thus construed the above-quoted provisions both of the constitution and of the act of assembly. The whole question has been thoroughly threshed out in the case of Hoover v. Penna. R. R. Co., 156 Pa. 220. In that case Mr. Justice Green, in a learned and exhaustive opinion, discusses every phase of the question and reviews and analyzes the leading cases both in England and this country. As illustrative of the conclusion reached by all the courts in such cases we may quote the following from that opinion: “The doctrine of the cases above cited was also declared in the case of Baxendale v. R. R. Co., 94 E. C. L. 336, where Cockburn, J., said: 'If an arrangement were made by a railway company whereby persons bringing a larger amount of traffic to the railway should have their goods carried on more favorable terms than those bringing a less quantity, a court might uphold such an arrangement as an ordinary incident of commercial economy, provided the same advantages were extended to all persons under the like circumstances.’ ”

In Mercur v. Media Electric Light, Heat & Power Co., 19 Pa. Superior Ct. 519, our Brother Orlady, speaking for this court, used the following language: “The class of people to whom the service is made is not material, it is the condition and character of the service required in view of location, extent, volume, etc., of the service. The mere fact that a different sum-is demanded is not unfair or unjust discrimination. The rule of the company may be necessary for its existence and if it is not an unreasonable one the relator has no just ground of complaint. Similar differences in charge or rate have been upheld in many cases.”

The opinion of the learned court below discharging the rule for a new trial cites all of the cases on the question, and we can see no occasion to again refer to them here. We deem it sufficient to say that we can find no warrant either in constitution, statute or decision for the conclusion that the act of the defendant company in classifying its customers and fixing a definite and uniform rate for each class was an unlawful or forbidden act. The learned court below therefore could not have declared, upon a mere inspection of the contracts offered in evidence, that they exhibited an act of discrimination forbidden either by law or policy.

It follows then that the action of the court, in admitting evidence tending to show the reasons on which the classification was based and the circumstances and conditions that surrounded the company at the time, the advantages to be derived by it from such classification, etc., cannot be successfully assailed. The only pertinent question in the cause was not whether any discrimination existed, but whether a discrimination was shown which under existing conditions and circumstances was either undue or unreasonable. It was to aid in the determination of this issue that the testimony complained of was introduced. Without it there would have been no foundation for a determination, either by court or jury, of the issue stated. The learned court below, under instructions in which we find no error, submitted to the jury the question whether or not the discrimination complained, of was either undue or unreasonable, and their verdict has established that it was neither. We think therefore that judgment was rightfully entered on the verdict in favor of the defendant, and the assignments of error must be overruled.

Judgment affirmed.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Habecker’s Estate
    (No. 1).

      Wills — Exclusion of heir — Personal estate — Intestacy.
    1. Merely negative words in a will axe not sufficient to exclude the title of the heir and next of kin. There must be an actual gift to some other definite object. The rule applies to personal property as well as to real property.
    2. Where a testatrix directs that a nephew named shall not participate in the distribution of her estate, and dies intestate as to a part of her personal estate, the nephew named will be entitled to a share of such personal property undér the intestate laws notwithstanding the words of exclusion.
    Argued Nov. 10, 1909.
    Appeal, No. 35, Oct. T., 1909, by Jacob H. Bender, from decree of O. C. Lancaster Co., Feb. T., 1908, No. 12, dismissing exceptions to adjudication in Estate of Mary Habecker.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Exceptions to adjudication. Before Smith, P. J.
    The facts appear by the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to adjudication.

      Hugh B. Fulton and Coyle & Keller, for appellant.—
    The rule applied to the lower court relates only to real estate: French v. McIlhenny, 2 Binney, 13; Clayton v. Clayton, 3 Binney, 476; Bender v. Dietrick, 7 W. & S. 284; Gorgas’ Est., 166 Pa. 269; McGovran’s Est., 190 Pa. 375.
    The following cases all rule that a person may be excluded from a class which would take by devolution: Ackroyd v. Smithson, 1 Brown’s Chancery Cases, 503; Amphlett v. Parke, 2 Russ. & M. Chancery, 221; Vachell v. Breton, 5 Brown’s Parliamentary Cases, 51; Lett v. Randall, 3 Smale & Gifford, 83. Bund v. Green, L. R. 12 Chan. Div. 819, is an English case almost on all fours with this case.
    July 20, 1910:
    We respectfully submit that both in reason and authority the rule referred to is limited and confined to real estate — that a clear provision excluding a person from participating in one’s estate followed by no other residuary bequest is equivalent to a direction that the testator’s residuary estate shall be divided among his next of kin under the intestate laws, excluding the persons cut out by the will, which provision has been recognized as valid and enforceable by the Supreme Court of this state: McGovran’s Est., 190 Pa. 375; Everitt’s Est., 195 Pa. 450.

      J. W. Denlinger and C. Eugene Montgomery, for appellee.
    The rule includes personalty: Hitchcock v. Hitchcock, 35 Pa. 393; Hancock’s App., 112 Pa. 532; Gorgas’ Est., 166 Pa. 269; McGovran’s Est., 190 Pa. 375.
    In addition to the authorities herein referred to appellee cites the following as bearing on the question that persons may not be excluded from a class that would take by devolution:' Dobbins’ Est., 17 Pa. Dist. Rep. 218; Cowles v. Cowles, 53 Pa. 175; Rupp v. Eberly, 79 Pa. 141; Bruckman’s Est., 195 Pa. 363.
   Opinion by

Rice, P. J.,

Mary Habecker died testate, leaving to survive her a sister, Anna E. Habecker, three nephews, Jacob H. Bender, Henry H. Bender, Benjamin H. Bender, and one niece, Eve Ann Bender, as her next of kin. By her will she gave all her estate, real, personal and mixed, to her sister, Anna E. Habecker, for life, and after her. death created an active trust as to three tracts of land, which was to continue until the death of all of certain grandnephews and grandnieces. At the conclusion of the clause of her will, relative to the conversion and distribution of the trust estate at the death of the grandnephews and grandnieces, occurred these words: “Benjamin H. Bender, a nephew, and his family, are not to participate in the distribution of my estate for reasons well known to them.” In another part of her will she made two bequests and a devise of a small tract of land upon the death of Anna Habecker. And at the conclusion of her will, afj;er bequeathing the horses owned by her to her sister, she declared, “All other personal property may be sold by my executors and trustees as may be found best for the estate.” The fund for distribution in the proceeding out of which this appeal arose was personal estate remaining after payment of all just debts and legal charges and legacies, which the testatrix did not dispose of by her will; and, under the plain provisions of our intestate law, it was properly distributed to her next of kin, including Benjamin H. Bender, unless the .clause above quoted was effective to exclude him. It is not contended that if it had been real estate the words would have been effective for that purpose, but it is argued that a different rule should apply in the case of personal estate. This contention is not based on any provision of the act of 1833, and it is difficult to see upon what principle it could be held that the words which would be ineffective to prevent the operation of the statute upon the real estate as to which the testatrix died intestate would prevent'its operation upon the personal estate as to which she died intestate. Much reliance is placed by appellant’s counsel upon the language of the opinion in Bender v. Dietrick, 7 W. & S. 284. Indeed, they say the case holds squarely to the position taken by them and makes a clear distinction between real and personal estate. In that case the court was speaking of the contention of the plaintiff in error that the testator had manifested his intention that his daughters Susanna and Rosanna should recover out of his real and personal estate of whatever description, whether bequeathed or not,- no more than $50.00 each, and, therefore, that the property, whether real or personal, must be divided in the same manner as if he had died intestate, with the exception that by force of his declared intention his two daughters by his first wife were excluded. “And,” said Rogers, J., “if this was the case of personal property, as appears by the case cited (Vachell v. Breton, 5 Bro. P. C. 51), there would be something in the argument. But this is real estate, as to which a different rule prevails. It is a maxim which applies here as well as in England, that an heir-at-law can only be disinherited by express devise or necessary implication; and that implication has been defined to be such a strong probability, that an intention to the contrary cannot be supposed.” Inasmuch as personal estate was not involved in the case, this parenthetical remark upon which counsel rely is rather a slender foundation for the supposition that the case would have been decided differently if personal estate had been involved. The later Pennsylvania cases do not recognize the distinction which the learned counsel contend for, but many of them state the rule as applying to personal as well as real estate. A leading case'is Hitchcock v.-Hitchcock, 35 Pa. 393, where the court, by Woodward, J., said: “A man may, by his will, take his estate out of the intestate statutes, by devising it to others than his heirs-at-law, but if he did not, he cannot repeal or control those statutes. However, clearly the particular intent, that Celinda should enjoy only $2,000 of his estate, may have been expressed, it must give way to the general intent, which existed at the death of the testator, that whatever was not specifically devised should be distributed under the intestate laws. For such is another rule of interpretation found in all the text-writers, that where there is a general intent and a particular one, and these are inconsistent, the particular is to be sacrificed to the general intent. And still another rule applies here, — that merely negative words are not sufficient to exclude the title of the heir or next of kin. There must be an actual gift to some other definite object.” It is argued that this statement of the rule is a departure from what had been declared in other cases; but it has been recognized and applied in many later cases, and we do not see how the conclusion can be avoided that it correctly states the true principle, namely, that rights conferred by the intestate laws in personality, no less than in real estate, can only be taken away by a will disposing of the property. Many of the cases have gone to a considerable éxtent in construing words so as to prevent intestacy. An illustration will be found in Jacob’s Est., 140 Pa. 268. But where a decedent dies intestate as to any property, the statute comes into operation. See Hancock’s App., 112 Pa. 532; Gorgas’s Est., 166 Pa. 269; Kane’s Est., 185 Pa. 544; Bruckman’s Est., 195 Pa. 363, at p. 367; Will of Louisa Rorer, 7 Phila. 524. “It takes an intelligible will, if not a plain one, to disinherit, either in whole or in part, those who by law are entitled to the succession. Every man has an undoubted right to give his property to whom he pleases; but when the usual, natural, just, and legal course of distribution is to be changed, it must be done by words at least tolerably free from ambiguity.” Per Black, C. J., in Weber’s App., 17 Pa. 474.

Much reliance has been placed by appellant’s counsel on McGovran’s Est., 190 Pa. 375. There the testatrix directed as follows: “The rest and residue of my estate I direct to be distributed by my executor under the intestate laws of Pennsylvania, but in no event is M. or her three children and J. or her two children to receive any portion of my estate in any form.” This was held to be an immediate gift of the residuary estate. Judge Stewart, whose opinion was adopted by the Supreme Court, said: “The gift is to a class, to wit: those upon whom the law would cast the inheritance in case of intestacy; the time of distribution determining who are to take and the quantum of the gift to each, except that neither Mrs. Murdock, who otherwise would take, and her two children, who otherwise might take, are expressly excluded from participation. Since the gift is to a class, no part of it fails by reason of the subsequent exclusion by codicil of certain others, who but for the exclusion would have taken.” The decision was put distinctly upon the ground that these words were a disposition of the residuary estate and, therefore, the testator did not die intestate as to that property. The distinction between such a case and the present is apparent, and it was made the ground of decision in Hancock’s App., 112 Pa. 532, as will appear by the opinion of Mr. Justice Green on the motion for reai’gument, at pages 542 and 543. The English case of Bund v. Green, L. R. 12 Chan. Div. 819, cited by counsel, viewed with reference to its special facts, may not be in entire accord with our decisions, particularly Hancock’s App., but the principle enunciated is not in conflict with that stated in our cases, for the court, upon a consideration of the whole will, found that according to the true construction of the will, the ■declaration of the testator amounted to a gift in favor of those persons who take by law upon a distribution of personalty under the statute. We are unable to conclude that the clause of the will of this testatrix under consideration had that effect.

The decree is affirmed at the costs of the appellant.


text:
    Habecker’s Estate
    July 20, 1910:
    (No. 2).
   Opinion by

Rice, P. J.,

It is agreed by counsel that this case is in all respects parallel to the appeal in the Estate of Mary Habecker, deceased, ante, p.. 86, in which we herewith file an opinion. For the reasons there given, the decree is affirmed at the costs of the appellant.


text:
    Habecker’s Estate
    (No. 3).
    . Taxation — Collateral inheritance tax — Decedents’ estates — Payment of tax out of residuary.

    1. An executor is justified in paying a collateral tax out of the residuary estate, where he is authorized by the will “to sell sufficient property or proceeds of crops to pay any debts and expenses collateral tax, and legacies bequeathed, before any division is made of said rents, issues and profits; ” and this is the case although in a later clause in the will testatrix has given real estate to her trustees “to rent, farm or crop .... to the best advantage, and from the rents, issues and profits thereof (1) to pay all taxes, repairs and insurance, and keep the properties in good condition; (2) to divide the balance,” etc.
    2. In such a case the word “taxes” in the later clause is to be construed as meaning local taxes, and not to include the collateral tax.

      July 20, 1910:
    Argued Nov. 10, 1909.
    Appeal, No. 177, Oct. T., 1909, by Henry H. Bender et al., from decree of O. C. Lancaster Co., Feb. T., 1908, No. 12, dismissing, exceptions to adjudication in Estate of Mary Habecker, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Exceptions to adjudication. Before Smith, P. J.
    The facts appear by the opinion of the Superior Court.

      Error assigned was in dismissing exceptions to the adjudication.

      J. W. Denlinger and C. Eugene Montgomery, for appellants.
    A case squarely on the point which decides this question is Brown’s Est., 208 Pa. 161.

      Hugh B. Fulton and Coyle & Keller, for appellees.—
    The legacies and devises were relieved from the tax: Horter’s Est., 1 Pearson, 424; Cummings’s Est., 12 Pa. C. C. Rep. 45; Lea’s Est., 194 Pa. 524; Shippen v. Burd, 42 Pa. 461; Byne v. Currey, 2 Crompton & Meeson, 603; Williams v. Hughes, 24 Beavan, 474; Barksdale v. Gilliat, 1 Swanston’s Ch. 562.
   Opinion by

Rice, P. J.,

The matter complained of in this appeal is the refusal of the orphans’ cburt, in the adjudication of the account of the executors of the personal estate of the testatrix as to which she died intestate, to surcharge them with the collateral inheritance taxes paid by them (a) on two legacies and (b) on the real estate devised in trust. They assert as their authority for these payments the following clause of the will: “The executors and trustees are hereby further authorized and empowered to sell sufficient property or proceeds of crops to pay any debts and expenses, collateral tax, and legacies bequeathed, before any division is made of said rents, issues, and profits.”

Unless otherwise directed by the provisions of the will or the intention of the testator to the contrary is plainly inferable therefrom a collateral or succession tax is chargeable against and payable out of the legacies by the respective legatees: Brown’s Est., 208 Pa. 161. This statement of the law clearly implies, if authority be needed for so plain a proposition, that the intention of the testator, plainly inferable from his will, to impose the burden upon his residuary estate in relief of the legatees and devisees, will be carried into effect. Here the-residuary personal estate was ample for the purpose, and we entertain no doubt that, so far as payment of the tax on the legacies is concerned, the executors acted in accordance with the intention of the testatrix plainly manifested in the above clause of her will.

But it is contended that in paying the collateral inheritance tax on the corpus of the real estate devised in trust out of this fund derived from the sale of the residuary personal estate the executors contravened the rule laid down in Brown’s Est., 208 Pa. 161, which is thus stated in the syllabus: “Where the corpus of an estate is committed to the executors in trust to collect the income, and after taking any and all necessary expenses, to divide the said net income in equal shares among’ certain persons named for life, the collateral inheritance tax, New York state transfer tax and United States war tax are not payable out of the principal of the estate, but are to be deducted by the trustees from the gross income, after which the net income is to be divided in equal shares among the life tenants.” This decision was put upon the ground that the direction to “deduct any and all expenses” was broad enough to include the payment of the taxes charged upon the legacies and that it was apparent from a proper construction of the will “that the testator, whatever inequality it may produce, intended that the tax should be charged against the income of the estate before distribution should be made to the legatees.” In the will imder consideration the language of the trust is: “To rent, farm, or crop said farms and the Mill property to the best advantage, and from the rents, issues and profits thereof to pay (1) all taxes,, repairs and insurance, and keep the properties in good condition; (2) to divide the balance, after deducting necessary expenses and compensation, into three equal parts or shares.” If this clause stood alone it might be argued with plausibility that the collateral inheritance taxes, as well as other taxes, were intended to be deducted from the gross income of the trust estate before distribution of the net rents, issues and profits. But the clause does not stand alone, and in arriving at the intention of the testatrix all provisions of the will pertinent to the question must be considered. Thus viewing the will, it is seen that the testatrix had in mind the collateral inheritance tax, which in one clause of her will she ranked with debts, expenses, and legacies, and taxes, which in another clause she ranked with repairs and insurance of the trust property. Both clauses of the will may be reconciled and carried into effect by construing the latter to relate to ordinary local taxes on the property. The immediate context tends to show that this is the sense in which she used the term, and this conclusion is strengthened by a consideration of the general and unqualified provision relative to the collateral inheritance tax. The learned judge of the orphans’ court well says: “From the debts and expenses there could have been no escape even if the testatrix had made no reference to them. There were ample funds with which to pay the legacies, and a special provision for them was unnecessary, but recognizing a possibility of a change in ■her estate between the time of the writing of her will and her death, and being especially anxious to have them paid, she provided particularly for them. Quite as prominent in her mind was the collateral inheritance tax, and quite as certain her intention to provide for its payment. She puts debts, expenses, legacies and collateral inheritance tax in the same class, and her direction is to pay them. How is it possible to take any other meaning out of her words? There was no occasion to even refer to this tax unless she had some purpose relating to it. What was it? What other possible thing could it have been if it was not to pay it? Not only did she intend it-to be paid, but ‘further authorized’ the use of the proceeds of the crops for that purpose, or, if necessary, even to sell ‘property.’ Like debts and expenses it was to be paid even if ‘property,’ manifestly real estate, had to be sacrificed for that purpose.” This view of the case commends itself.

The case differs in essential facts from Brown’s App., and for that reason a different result is reached; but in holding that the clause relative to collateral inheritance taxes authorized the executors to pay them out of the proceeds of the personalty, we apply the principle of that case, namely, that the intention of the testatrix plainly inferable from her will is.to be carried into effect.

The decree is affirmed at the costs of the appellant.


text:
    Habecker’s Estate
    July 20, 1910:
    (No. 4).
   Opinion by

Rice, P. J.,

It is agreed by counsel that the same question, and only the same question, is involved in this appeal as is involved in the appeal in the Estate of Mary Habecker, ante, p. 91, and that the same decree shall be made as in that case.

The decree is affirmed at the costs of the appellant.


author: Henderson, J.,

text:
    Cake v. Sunbury Borough, Appellant.

      Deeds — Descriptions—Boundaries—Reference to plot — River as boundary.

    1. Where reference is made in deeds for the sale of lots to a plot on which they are shown with numbers, streets, alleys and water courses, the plan so referred to becomes a material part of the conveyance, and is to have the same effect as if it were copied into the deed.
    2. Ordinarily the construction of a deed or other document is for the court, but where boundaries are to be ascertained, and where the intention of the parties is to be discovered in the light of conditions and circumstances extraneous to the documents the case is for the jury .
    3. Where a deed calls for a street as one of the boundaries, and refers to a plot, and the plot does not show the street, but a river as the boundary, and evidence as to the local conditions and circumstances tend to show that the river and not the street was intended as the boundary, the question as to what was the boundary intended is for the jury and not for the court.
    4. Where a road is laid out or dedicated to a navigable stream, the road runs to the water even though it has not been worked or used further than the top of the bank. The ground between high and low-water mark is as much subject to appropriation to a road as any other land; and the same rule applies to a road terminating at a navigable river which is applicable in the case of one road connecting with another the two thereby becoming a continuous public highway.
    5. Where a plan of lots indicates the west boundary of the lots as a river, and subsequent deeds by the owner call for a street as the west boundary, and it appears that the high-water line of the river overlapped the street, it may be inferred that the owner did not claim to reserve anything between the street and low-water mark. In such a case it will be presumed that the owner intended to secure to the purchasers of the lots and to the public access to the water; and this presumption is strengthened if it appears that the river bank was precipitous, and that there was no soil available to the owner between the street and the river for improvements'of any kind. The intention of the owner, however, is for the jury. ‘

      Boroughs — Streets—Removal of earth.

    6. A borough may make use of the soil in a street for any authorized public purpose, and an abutting owner has no standing to object to such use.
    Argued Oct. 29, 1909.
    Appeal, No. 115, Oct. T., 1909, by defendant, from judgment of C. P. Northumberland Co., Sept. T., 1907, No. 348, on verdict for plaintiff in case of J. A. Cake and Jennie Cake v. Sunbury Borough.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover damages for removing the soil of a street. Before Savidge, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [I hold that these plaintiffs have the riparian rights to that portion of the land between high and low-water mark outside of the roadway, whatever that may amount to, and that they own the fee in that land subject to the public’s rights, and that they also have the fee in the western half of the public highway.] [6] I hold this under the authority especially of Smucker v. Pennsylvania Railroad Co., 6 Pa. Superior Ct. 521. In that case the state had appropriated, or if they took it not by appropriation then there had been deeded to them, a strip of land in the borough of Huntingdon, along the north bank of the Juniata river, for canal purposes. The state had the fee, and the railroad afterwards became the owner of that strip of land absolutely, and as I understand from the case there was nothing left to the former owner between the river and this canal property except that portion of land which was between high and low-water mark, and to which there was attached no upland. The owner afterwards sold this piece of land being altogether between high and low-water mark to a third party and the railroad company trespassed, and on the trial the trial judge directed a verdict for the railroad company and the case was reversed, and in their opinion, as I understand their language, the Superior Court holds (and their judgment affirmed), that there could be ownership in this strip of land between high and low-water mark notwithstanding there were no attached uplands. [Under that authority I hold that the fee to this strip of land between high and low-water mark belonged to the heirs of Joseph W. Cake at the time of his death. J. Adam Cake took one-fourth thereof and Joseph W. Cake, Jr., one-fourth ■ thereof. Jennie Cake, at sheriff’s sale, purchased that one-fourth interest; hence the plaintiffs in this case became entitled to one-half interest and are' entitled to one-half of the value of the sand and gravel taken away within the last six years.] [7]
    It seems from this case that all this gravel probably came from within the limits of the roadway but below the break in the bank, and not from that portion of the roadway which has been used as a public highway. It seems this road was originally laid out fifty feet, and it seems it extended out much further than it now extends, and that it has been gradually wearing away until finally it was necessary to put there a solid stone wall in the nature of a riprap in order to protect the bank, and there is only remaining now about twenty-four or twenty-five feet of the original road, and for the purpose of this case, and I take it for granted, as the evidence seems to show that this gravel came from the western half of the public highway as it was originally located and originally used there fifty or sixty years ago. But that portion of the highway has become as it were the beach of the river and is several feet below the traveled portion of the highway, and is not any longer used for public purposes, and this gravel came from that portion of the highway, and it came from lands which these parties owned subject to the right of way over the land. [The public has no further rights than the simple use of the highway; the fee of the land belongs to the original owner or his grantee, and if the road were to be abandoned the land would go back for all purposes to the original owner, and that party owning on the east side would take to the center of the street, and that party owning on the west side would take to the center of the street, and that would be the dividing line between the two owners at the time of the abandonment of the street if it ever were abandoned.] [8]
    The borough claims they have a right to take this gravel away, inasmuch as it is within the lines of the public highway; within the fifty feet. They undoubtedly would have a right to use the gravel in the repair of the street at that point if they were cutting down the street and grading it; they would have a right to remove the ground for the purpose of grading the street, and take it to another street and do with it whatever they pleased. They have a right to cut down trees and make culverts and do anything that is reasonably necessary to the repair of the streets, and if they had used this gravel in that way I would say Mr. Cake would have no right to recover. [But I think they had no right to take this gravel and cart it away to some other street and use it, unless they took it away for the purpose of bettering this street, when they might use it for bettering another street at the same time.] [9] Might kill two birds with one stone if they had an opportunity. But there is no pretense in this case and we know from the evidence that the gravel was not taken for the betterment of this street. That it was taken along the beach, the stuff that had probably been washed in there, and was simply taken because it was convenient for the borough to get, and was made use of in paving other streets.
    [Now, gentlemen, you may find therefore a verdict in favor of the plaintiff, and you may return him whatever you believe the material taken away was worth in the market.] [4]
    Defendant presented this point:
    3. That high-water mark falls within the limits of Front street along the lands in question and the riparian rights incident to the land composing the street belong to the public and not to the plaintiff. ■ Answer: The high-water mark varies within the limits of the street, within the limits in question, there can be no doubt; but whether high-water mark be determined as to the condition of the river before the dam was taken out or its present condition, the removal of the dam does not greatly affect the high-water mark on the eastern and western line of the river. That is to say, it extends eastwardly with the dam out almost as far as it extended before the dam was taken out because the bank is very precipitous — the slope being one to one — and the slope wall being built in that way the high-water mark in both cases is always above the bottom of this slope wall. It would make a difference in perpendicular height of seven and eight-tenths feet, and probably horizontally a difference of not more than six or seven feet. The riparian rights incident to the land of a passing street do not belong to the public, they belong to the owners of the fee, these plaintiffs and the other heirs of Joseph W. Cake, deceased. [3]
    Verdict and judgment for plaintiff for $168.46. Defendant appealed.

      Errors assigned among others were (3, 4, 6, 7, 8, 9) above instructions, quoting them.

      J. P. Carpenter and J. F. Schaffer, for appellant.—
    Where a map or plan is referred to in a deed it becomes a material and essential part of the conveyance and it is to be given the same force and effect as if copied into the deed: Ferguson’s App., 117 Pa. 451; Higgins v. Boro. of Sharon, 5 Pa. Superior Ct. 92; Deppen v. Bogar, 7 Pa. Superior Ct. 434; Schenley v. City of Pittsburg, 104 Pa. 472; Johnson v. Grenell, 188 N. Y. 407 (81 N. E. Repr. 161); Delacháise v. Maginnis, 44 La. Ann. 1043.
    It is beyond question that the use made of the subsoil of Front street was an authorized municipal use: Wood v. McGrath, 150 Pa. 451; Dempster v. United Traction Co., 205 Pa. 70.

      A. W. Potter, with him J. A. Cake and W. E. Houseworth, for appellee.
    The title of the purchaser extended to the center of Front street and no further: Paul v. Carver, 26 Pa. 223; Cox v. Freedley, 33 Pa. 124; Birmingham v. Anderson, 48 Pa. 253; Wood v. Appal, 63 Pa. 210; Brisbine v. R. R. Co., 23 Minn. 114; Morris v. U. S., 174 U. S. 196 (19 Sup. Ct. Repr. 649); Smucker v. R. R. Co., 6 Pa. Superior Ct. 521.
    The owner in fee of the reversion of one-half of a borough street may maintain trespass against the borough for the value of the soil removed by it therefrom and used in the improvement of its general system of streets: Woodruff v. Neal, 28 Conn. 165; Harrison v. Brown, 5 Wis. 27; Jewett v. Gage, 55 Me. 538; State v. Laverack, 34 N. J. L. 201.

      July 20, 1910:
   Opinion by

Henderson, J.,

At the time when Joseph W. Cake acquired title to the land out of which this contention arises a public highway had existed for more than sixty years along the east bank of the Susquehanna river over the Cake tract. Many years prior to the date of the Cake title the state had constructed a dam in the Susquehanna river under the internal improvement Act of April 9, 1827, P. L. 192. The effect of this dam was to raise the level of the water in the river about eight feet. The road referred to is now Front street in the borough of Sunbury. It appears from the evidence that the roadway was shifted eastward as a result of the washing of the bank and that the high water line falls within the limits of the street. About 1866 Joseph W. Cake caused his land fronting the river to be plotted as an addition to the borough. There were about 100 blocks in the plot with numerous streets and alleys, the general course of the streets being north and south and east and west. ■ The east and west streets were plotted to the river as was also the tier of lots fronting thereon. Front street is not indicated nor referred to on the plot. All of these lots were afterward sold by conveyances which bounded the grant on the west by Front street, but in each of them there was a reference to the plot for identification and a copy of the plot was attached to the deed for one at least of the lots. This action was brought to recover damages for taking sand and gravel from the river bank between high and low water marks the plaintiffs claiming an interest therein under Joseph W. Cake. There is evidence tending to show that a large part of the sand and gravel removed was taken within the lines of Front street, but the plaintiffs contend that one-half of the fee to the western half of the street is in them and they deny the right of the borough to remove earth from that street to any other street of the borough unless for the improvement of Front street itself. The court gave binding instructions for the plaintiffs as to their right to recover, basing his conclusion on the description in the deeds of Joseph W. Cake for the front tier of lots bounded as they were by Front street. Two questions arise with reference to the effect of these grants: (1) Did they convey a title to low water mark on the river? (2) If they have not this effect do the deeds and the extrinsic facts show a dedication of the river bank to the public? As to the first question it may be conceded that if the rights of the grantees for the lots were to be determined solely by the call for the western boundary they would take to the middle of the street and the fee in any land west of that line would remain in the grantor and pass to his assigns or descend to his heirs. But in determining the question regard must be had not only to the deeds, but to the plot of the land to which the deeds referred and which by reason of that reference is to be read iiito the deeds. It is a principle of law not to be disputed that where reference is made in deeds for the sale of lots to a plot on which they are shown with numbers, streets, alleys and water courses the plan so referred to becomes a material part of the conveyance and is to have the same effect as if it were copied into the deed: Birmingham v. Anderson, 48 Pa. 253; Transue v. Sell, 105 Pa. 604; Ferguson’s Appeal, 117 Pa. 451; Thomas v. Poole, 73 Mass. 83; Deppen v. Bogar, 7 Pa. Superior Ct. 434; Parker v. Kane, 63 U. S. 1; Higgins v. Sharon Boro., 5 Pa. Superior Ct. 92. In ascertaining, therefore, what Joseph W. Cake conveyed his deeds and the plot are to be taken together. It is apparent from this plot that the front lots have the river for their western boundary and that the streets leading toward the river have their western- termini at the water’s edge. If the sales were according to the plot, therefore the proprietor parted with all of his land in the lots to low water mark on the river and nothing remained to pass to the plaintiffs, for it will not be contended that if the call in the deeds was for the river any estate was reserved. What then was the intention of the grantor? The call for Front street is inconsistent with the description in the plot which designates a conspicuous natural boundary. The plot should, therefore, be considered as explanatory of the intent of the parties and descriptive of the Use of Front street as a boundary. When we consider the deeds and the plot and the extrinsic circumstances connected with the location of Front street along high water mark of the river and the further fact that in the plot no designation of Front street or reference thereto is made it becomes a matter of the highest probability that Front street was regarded by the grantor as equivalent to the river and that the grants were intended to cover all of the ground included in the plot. This view is strengthened by the fact that the high water line was close to the brink of the bank; that the bank was abrupt with the water a few feet below and that as shown by the defendant’s evidence there was no intervening land useful to the grantor. The character of the river, the inconsiderable margin between the water and the west line of Front street, the advantage to the purchasers of the lots with an unobstructed river frontage confirm the inference that the proprietor intended to convey according to his plan of lots. When viewed in this light the deed may be reconciled with the plan and the call for Front street controlled by the boundaries in the plot. Evidence offered by the defendant shows that a part of Front street was in fact within the high water limit, and the grantor in making his deeds may well have considered that the equivalent of the river in his call. We cannot ignore the reference in the deeds to the plan of the lots, and the locations are so definitely and explicitly set forth and the descriptions therein are so essential to the understanding of the deeds, that they must be regarded as explanatory of the intention of the parties. This was the course of reasoning applied in Com. v. McDonald, 16 S. & R. 390. In that case a'block of thirty-two lots was conveyed bounded on the north by the Allegheny river and on the south by the Monongahela river. The lots had been plotted and were referred to in the deed by number. By reference to the plot it was seen that the lots did not extend to the river but that a margin of land was left apparently for public use. The court there held that the definite indication of the lots by the plot should control the call for the rivers in the deed and that title did not pass to the land outside of that which was plotted. In like manner in Birmingham v. Anderson, 48 Pa. 253, there was a conveyance of a block of lots bounded on one side by the Monongahela river. The deed designated them by number with reference to a plan of lots, and the conclusion of the court was that the words “Monongahela River” must be controlled and governed by the plan according to which the real northern boundary was the beach of the river. In another case, Schenley v. Pittsburg, 104 Pa. 472, according to the description in the deed certain lots designated by number were conveyed “bounded northwardly by said Allegheny River and southwestwardly by said Monongahela River.” On the plan of these lots an open space was marked along the Monongahela river front not included in the lots and with' respect to the effect of this conveyance the court said that the precise and accurate description and location of the lots furnished by the plan cannot be controlled by the general language of the deed calling for the rivers as the boundaries of the respective blocks of lots. In Barclay v. Howell, 31 U. S. 498, the question was whether a lot, No. 183, on a town plan extended to the Monongahela river where the description in the deed called for the river Monongahela as one of the boundaries and referred to the lot by number; and there the decision was that the plot should control the call in the deed. These cases it is true restricted the descriptions in the deeds, but the principle is plain and the converse of the case apparent. The plan of lots is incorporated into the deed and in connection with the surrounding circumstances is used to'interpret the intent of the parties with reference to the i extent of the grant. We do not regard the question, therefore, as one of law to be determined by the court according to the call in the deed but a question for the jury under all of the evidence whether Joseph W. Cake intended and did by his conveyances part with his' title to the land to the water’s edge. Ordinarily the construction of a deed or other document is for the court, but where boundaries are to be ascertained and where the intention of the parties is to be discovered in the light of conditions and circumstances extraneous to the documents the case is for the jury. In Barclay v. Howell, 31 U. S. 498, it was said: “ It is the province of a court to instruct the jury that they should fix the boundaries of a tract in controversy by an examination of the whole evidence and that artificial or natural boundaries called for control a call for course and distance. But it would withdraw the facts from the jury if the court were to fix the boundaries called for and then determine upon the legal effect of the instrument.” And in Com. ex rel. v. Y. M. C. A., 169 Pa. 24, the determination of a similar question was considered to be a mixed question of law and fact. Of similar import is Palmer v. Farrell, 129 Pa. 162. Proof by the defendants of the fact that the plot was made fixing the river as the western boundary and that conveyances were delivered with reference thereto for identification of the land conveyed with evidence that high water mark was within the lines of Front street and that the slope from the brink to the river was precipitous would support a conclusion of the jury that the intention of the proprietor was to part with his land to the river and this inquiry should have been submitted to the jury.

The dedication to the public set up by the defendant involves the same state of facts already considered. The position taken is that , even if the call in the deeds for Front street as the west boundary of the lots is accepted as the limit of the title of the grantees there is nevertheless evidence on which a finding could be based that the proprietor dedicated the space between the middle line of that street and the water in the river to the use of the public. That the plot exhibited and referred to in the Cake deeds carries the lots to the river is not disputed. It plainly shows that the river is the western boundary of the whole plot, and where a navigable stream is called for it is always understood that the ownership extends to low water mark: Klingensmith v. Ground, 5 Watts, 458. The streets are also extended to the river which makes the water’s edge their termini. Where a road is laid out or dedicated to a navigable stream the road runs to the water even though it has not been worked or used further than the top of the bank. The ground between high and low water is as much subject to appropriation to a road as any other land. And the same rule applies to a road terminating at a navigable river which is applicable in the case of one road connecting with another the two thereby becoming a continuous public highway: Balliet v. Com., 17 Pa. 509; People v. Lambier, 5 Denio, 9. As Front street was laid out along the bank of the river and as there was evidence that the high water line overlapped the street along a part of its course the adoption of Front street as the west boundary of the lots sold on that street could be accounted for in the light of the plot as a recognition by the proprietor that Front street and the high water line were coincident and that as proprietor he did not claim or reserve anything between the street and low water mark. If Front street had been laid out for the first time as a part of this plan of lots and the evidence showed that it was along the high water margin of the stream the inference would be legitimate that the intention was to secure to the purchasers and to the public access to the water, and the fact that it was an ancient highway over which the proprietor had no control but which must necessarily be taken account of in his project does not change the legal situation. This principle was adopted in Pewaukee v. Savoy, 103 Wis. 271; Rowan v. Portland, 8 B. Mon. 232; Watson v. Peters, 26 Mich. 508. And in Barclay v. Howell, 31 U. S. 498, it was declared in effect that to contend that between the boundary of a street and the public right to navigable water where the two meet as in case of the existence of a street bounded by a navigable river a private right can exist and be exercised hostile to the public right is unreasonable and against law. In Barney v. Keokuk, 94 U. S. 324, it was decided that a street bordering on a navigable river according to the plan of the town must be regarded as intended to be used for the purposes of access to the river and the usual accommodations of navigation in such a connection. The plot showing the river as the western boundary, the street being located along the river bank, that bank being precipitous and there being no soil available to the proprietor between the street and the river for improvement of any kind the inference is strong that the intention was to give "to the purchasers of the lots and to the public the obvious advantages of the river front, and in this view of the case the call for the street as the western boundary of the lots is not inconsistent with the theory of a dedication of the western half of the street or the riparian right to the public. The sale of lots by a plan is a contract with the purchasers not only granting the right of way or use to them but also for public use: Heckerman v. Hummel, 19 Pa. 64; Pittsburg v. Epping-Carpenter Co., 194 Pa. 318. Whether the conveyance is to the middle of the way or to low water mark in a navigable stream is a question of construction in the particular case depending on the intent as expressed in the description-and illustrated by the locality: Webber v. R. R. Co., 43 Mass. 147. The reference in the deed to Front street and the plot and the conditions shown to exist would be evidence supporting the theory that the grantor did not intend to retain the thread of land at the river brink, but that he intended to give to his grantees with the land the use of the river front. This was also a question proper for the consideration of the jury. The learned trial judge considered Smucker v. Penna. R. R. Co., 6 Pa. Superior Ct. 521, to be a controlling case in favor of the plaintiffs. This case was reversed, however, in 188 Pa. 40, without a new venire and it has not the conclusive effect attributed to it in the court below. It was conceded in the opinion of the Superior Court that it was the intention of the proprietor that the lots in question should extend to low water mark on the Juniata river and that the description carried their, lines that far. The plot showed that there was no street or strip of land reserved by the founder along the stream. The question in controversy was not so much what was the location of the lots, but did the commonwealth take all of that part of them lying .between the canal and the river. The defendant contended that this was the case and introduced the commonwealth’s map showing the extent of the appropriation under the act of assembly to show title in the defendant. This map was held to be inadmissible on the appeal to the Superior Court because it was made after the canal was constructed and was considered not evidence of what was actually taken at the time the work was performed, but this view was not sustained in the Supreme Court and the case therefore went for the defendant as it did in the court of common pleas. It is not disputed by the appellants that the grantor of land along a navigable stream may reserve a strip of land next to the water. This is what the plaintiff in the Smucker case alleged had been done by William Smith who plotted and laid out the town of Huntingdon, but in all the courts in which that case was tried it was declared that Smith’s plot carried the lots to the river. The plaintiffs alleged that the southern ends of the lots were not appropriated by the commonwealth and this was the very pith of the controversy. When the commonwealth’s map was adjudged admissible the plaintiffs’ case fell in pieces for that map showed an appropriation of the whole of the lots. The court below did not regard it as important, nor do we, whether the high water mark is to be considered with reference to’ the river when the dam was in repair or after the flood in 1904 which carried a portion of it away, for the stream seems to have reached the same level at average high water in either condition of the dam. ■

Another branch of the defense was that the borough had a right to remove gravel cast up by the river within the lines of Front street even if the plaintiffs had title to the soil as claimed by them. In his charge to the jury the learned judge said: “It seems from this case that all this gravel probably came from within the limits of the roadway but below the break in the bank and not from that portion of the roadway which has been used as a public highway.” This conclusion the court reached from evidence which seemed to show that the action of the river had worn away the bank in the road and deposited sand and gravel from time to time on the western half of the road. On this state of facts the court charged the jury that the borough had no right to take this gravel and cart it away to some other street and use it unless it was taken for the purpose of bettering Front street. We have not found in the evidence any testimony showing whether the removal of the gravel was beneficial to Front street or not. That point does not seem to have been made the subject of evidence. The trial judge, however, assumed that it was not the intention to improve the latter street. This understanding may have been received from something which occurred at the trial not on the record or may have been the result of the observation of •the court, but as the work was done by the borough authorities in the exercise of the official discretion committed to them we are not at liberty to assume that it was not done in the exercise of a proper discretion in the absence of evidence tending to show the contrary. We are not persuaded, however, of the correctness of the instruction that the borough might not on the facts shown remove the gravel within the lines of the street, conceding that the plaintiffs had an interest in the land west of the middle line of Front street. An abutting landowner is not such an unqualified owner of the soil of the street in a borough or city that his consent must be had before the borough authorities may make use of the soil for any authorized purpose. The right of the public and of the municipal authorities over such streets is not limited to their use for travel merely. Public convenience requires more than this. Grading, the construction of culverts, bridges and sewers, the laying of water and gas pipes and other improvements of like character involve a very different use of the street from that which may be exercised over country roads. The different streets of a borough or city belong to a connected system of thoroughfares which are generally graded with reference to the welfare of the public, and the improvement of one street is often the improvement of the system of streets. McDevitt v. People’s Natural Gas Co., 160 Pa. 367, and Dempster v. United Traction Co., 205 Pa. 70, show to what an extent the ownership of the fee is subservient to the rights of the public in the soil of the street. It was said in the latter case that abutting owners on streets and alleys in cities and boroughs have no claim for damages by reason of the appropriation of the surface or subsurface for public improvements to the advantage and benefit of all the inhabitants. The borough or city is regarded as the representative 'of the community and is concerned with the health, comfort and business needs of the people and every lot owner is a sharer in the benefits which such interference with his right to the soil brings about. Municipal authorities may not only change the surface but cut down trees, dig up the earth and may use it in improving the street or elsewhere: 2 Dillon’s Mun. Corporations (4th ed.), sec. 688. The same rule is sustained in Hovey v. Mayo, 43 Me. 322; New Haven v. Sargent, 38 Conn. 50; Denniston v. Clark, 125 Mass. 216. These authorities support the right of the borough to remove superfluous gravel from the street and use it in leveling and grading other streets connected with the street from which the gravel is taken, and if the plaintiff’s right to the soil were unquestioned his right to object to the regulation of the streets by the borough authorities is not apparent as the case is now presented. To the extent then to which the gravel was taken from Front street to another street by the borough authorities for the purpose shown by the evidence the defendant is not liable even if it should be determined that the plaintiffs are owners of the undivided half of the land between the middle line of Front street and low water mark in the river.

The third, fourth, sixth, seventh, eighth and ninth assignments are sustained. The judgment is reversed and a v. f. d. n. awarded.


author: Morrison, J.,

text:
    Immel v. Herb, Appellant.

      Vendor and vendee — Parol contract — Statute of frauds — Evidence.
    1. A plaintiff may recover damages for the breach of a parol contract to convey land, and this is so, although the contract cannot be specifically enforced.
    2. Where a person purchases a lot and house for a dwelling, takes a deed therefor, and pays the full amount of the purchase money, and it appears that he is induced to make the purchase by a parol promise on the part of the vendor to remove a foundry in the immediate vicinity, which the latter owned, and the vendor fails to perform his promise, the vendee will be entitled to damages for the breach, and the measure of his damages is the difference between the market value of the property with the foundry in the vicinity and the market value of the property with the foundry removed. The statute of frauds does not apply to such a verbal contract.
    3. The evidence to establish such a verbal agreement must not be loose, vague and uncertain, but must be sufficient to show a definite agreement upon which the vendee relied. It is reversible error to admit testimony to establish the agreement, which could only be considered as the expression of an intention or purpose at some time or other to remove the foundry.
    Argued Nov. 10, 1909.
    Appeal, No. 54, Oct. T., 1909, by defendants, from judgment of C. P. Berks Co., Aug. T., 1907, No. 60, on verdict for plaintiff in case of George W. Immel v. H. John Herb and Charles H. Shaaber, Administrator of Jacob Shaaber, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.

      Trespass to recover damages for the breach of a parol contract. Before Endlich, J.
    The facts appear by the opinion of the Superior Court.
    When Mrs. Mary Roland was on the stand, the following offer was made:
    Mr. Young: We propose to prove that Mr. Immel, the plaintiff, stated to the witness that he contemplated the purchase of this dwelling house 824 Chestnut street; that the witness went there for the purpose of inspecting the dwelling and there met Mr. Jacob Shaaber, one of the defendants, and stated to him that she objected to the existence and operation of the foundry inasmuch as she intended to live with Mr. Immel; that Mr. Shaaber then assured her that the foundry would be removed and that on the plot of ground occupied by the foundry would be erected dwelling houses; that the witness communicated this statement of Mr. Shaaber to the plaintiff, and that the visit to the property by the witness was made in pursuance of an arrangement with-the plaintiff that she would inspect the surroundings of the property with a view to his contemplated purchase.
    Mr. Derr: For what purpose is this testimony offered?
    Mr. Young: For the purpose of showing that her conversation with Mr. Shaaber, one of the defendants, was communicated to the plaintiff and that that statement, in connection with the statement made by H. John Herb, the other defendant, was the inducement for the purchase of the property at 824 Chestnut street.
    Mr. Derr: This is objected to because the contract, according to the testimony of the plaintiff, was made at Mr. Becker’s office, where the down money was paid, some time after the time at which it is proposed to prove by the witness this conversation with Mr. Shaaber occurred. That testimony would not tend to corroborate the testimony of the plaintiff as to what happened at Mr. Becker’s office when the transaction was concluded by the payment of the down money and is not pertinent to any issue in the case. We conceive how this testimony might be used in contradiction perhaps, but it is not relevant or competent at this time, and it is generally irrelevant and incompetent. And I would like to repeat the objection that we made to the other offer that it is not proposed to show that the witness on the stand occupied any such relation to the plaintiff as made her able to receive a contract on the part of Mr. Shaaber and in behalf of the plaintiff.
    The court admitted exception. [6]
    When Susan Bristley was on the stand, this offer was made:
    Mr. Young: We propose to show by the witness that some time in the month of October, 1905, prior to the time that the- contract for the purchase of the dwelling house 824 Chestnut street was entered into between the plaintiff and the defendants, she in company with Mrs. Mary Roland visited this dwelling house and there met Jacob Shaaber, one of the defendants; that Jacob Shaaber stated to them that the foundry then operated by Herb and Shaaber, the defendants, would be discontinued and the entire plot of ground would be built into. dwelling houses; that tins conversation between the witness and Jacob Shaaber, one of the defendants, was communicated to the plaintiff prior to the time that the contract for the purchase of the house-was entered into; that the visit of the witness to the dwelling house was made as a prospective purchaser and was communicated to Mr. Shaaber. -
    Mr. Derr: This is objected to because what was said by Mr. Shaaber to the witness when she was going there as a prospective purchaser is particularly irrelevant to the issue trying in this case. It is evident that this visit was the same visit that Mrs. Roland testified to, and, at all events, is objectionable and inadmissible for the same reasons that Mrs. Roland’s testimony was objectionable.
    The Court: Admitted; bill sealed for defendants. [7]
    Verdict and judgment for plaintiff for $1,475. Defendants appealed.

      July 20, 1910:

      Errors assigned among others were (4) in refusing binding instructions for defendants; (12) discharging rule, for judgment for defendants non obstante veredicto; and (6, 7) rulings on evidence, quoting the bill of exceptions.

      Cyrus G. Derr, with him Wm. J. Rourke,

    for appellants. — The alleged contract was within the statute of frauds: Bender v. Bender, 37 Pa. 419; Thompson v. Sheplar, 72 Pa. 160; McCafferty v. Griswold, 99 Pa. 270; Walter v. Transue, 17 Pa. Superior Ct. 94; Miller v. Zufall, 113 Pa. 317.
    The testimony submitted by the appellee to establish the alleged verbal contract was not clear and satisfactory, nor is the alleged verbal contract certain and unambiguous as to the land alleged to have formed the subject-matter, nor as to the nature and extent of the interest to be acquired therein by the appellee, nor as to the consideration to be paid, etc., and the court should have declined to submit the same to the jury by an affirmance of the defendant’s second point which requested binding instructions: Bowers v. Bowers, 95 Pa. 477; Moore v. Small, 19 Pa. 461; Miller v. Zufall, 113 Pa. 317.

      Walter S. Young, with him Isaac Hiester, for appellee,
    cited: Watterson v. R. R. Co., 74 Pa. 208; Drukin v. Cobleigh, 30 N. N. Repr. 474; Supervisors v. McQueen, 15 Hun (N. Y.), 551; Angell v. Duke, L. R. 10 Q. B. 174; Seago v. Deane, 4 Bing. 459; Preble v. Baldwin, 60 Mass. 549; Hancock v. Melloy, 187 Pa. 371; Riggles v. Erney, 154 U. S. 244 (14 Sup. Ct. Repr. 1083); Poorman v. Kilgore, 37 Pa. 309.
   Opinion by

Morrison, J.,

This was an action of assumpsit brought to recover damages from the defendants for the breach of a verbal contract alleged to have been made between the parties in October, 1905, as an inducement to the plaintiff to purchase from the defendants a certain house and lot in the city of Reading for the sum of $5,500. The house and lot were conveyed to the plaintiff by deed from the defendants dated November 20, 1905, in pursuance of an agreement made on October 21 of the same year. It is conceded that the plaintiff paid the full amount of the purchase money. The house and lot were near a foundry owned and operated by the defendants. The plaintiff alleging that at the time of the purchase the defendants had agreed verbally to remove the foundry and to erect dwelling houses in its place within two years, brought this action against the defendants to recover damages for a breach of the alleged verbal contract, in which action the plaintiff claimed and was allowed to recover on the basis of an alleged difference between the market value of the property purchased with the foundry there and the market value of the property purchased with the foundry removed and about twenty dwelling houses erected on the ground. The verdict of the jury was in favor of the plaintiff for $1,475.

At the trial the defendants asked the court to give a binding instruction in their favor and the said instruction having been declined, a rule for judgment non obstante veredicto upon the whole record and a rule for a new trial were obtained, and subsequently both of said rules were discharged.

After the verdict and before judgment, Jacob Shaaber died and Chas. H. Shaaber, administrator, etc., was substituted, and the said administrator and H. John Herb are the present appellants.

In support of the motion for a judgment non obstante veredicto, the defendants contended “that the verbal contract alleged to have been made was one giving to the plaintiff an interest in the foundry property, namely, a dominant right to forbid its use for foundry purposes and to compel its use for dwelling purposes; and that the said verbal contract was void under the Statute of Frauds and Perjuries; that the testimony produced by the plaintiff for the establishment of a verbal contract was inadequate for submission to the jury, ” etc.

The specifications of error are based: Upon the discharging of the rule for a judgment non obstante veredicto; upon the refusal of the defendants’ request for binding instructions; upon the instructions given to the jury that the measure of damages for the breach of the alleged parol contract was the difference between the market value'of plaintiff’s property, with the foundry there, and its market value if dwellings had been substituted for the foundry; and upon certain rulings admitting evidence offered by the plaintiff and rejecting evidence offered by the defendants.

In support of the defendants’ position that the alleged oral agreement was within the statute of frauds and perjuries, the learned counsel cite the following cases: Bender’s Adm’rs v. Bender, 37 Pa. 419; Thompson v. Sheplar, 72 Pa. 160; McCafferty v. Griswold, 99 Pa. 270; Allison v. Montgomery, 107 Pa. 455, and several other cases along the same line. But we do not agree with the counsel that these cases are controlling because the parol agreement alleged by the plaintiff does not purport to convey any right of possession or title to any of the defendants’ land, and this is not an action brought for the purpose of enforcing the right of possession to any land. In our opinion, the oral agreement set up by the plaintiff comes within the rule of Watterson v. Allegheny Valley R. R. Co., 74 Pa. 208; West Chester & Phila. R. R. Co. v. Broomall, 18 W. N. C. 44. The parol agreement in the present case being executory, and if, as alleged, it induced the plaintiff to purchase and pay for the house and lot, and if he can sustain, by sufficient competent evidence, the contract and a breach of it, and that such breach depreciated the value of his house and lot, we can see no reason why he may not recover sufficient damages in the present case to make him whole as to the loss actually sustained.

It is well settled in Pennsylvania that a plaintiff may recover damages for the breach of a parol contract to convey land, and this is so although the contract cannot be specifically enforced. In such case, “The existence of a contract was a question for the jury. If they found it proven, and a breach, the plaintiff was entitled to recover:” Poorman v. Kilgore, 37 Pa. 309.

The view we take of this case, as to the statute of frauds and perjuries, leads us to dismiss the first, second, third, fifth and eighth specifications of error.

The defendants’ second contention, as presented by the learned counsel, rests on the proposition that the testimony submitted by-the plaintiff to establish the alleged verbal contract was not clear and satisfactory. This question is raised by the fourth and twelfth specifications of error. We find in the record considerable competent testimony tending to support the plaintiff’s contention as to the alleged verbal contract, as well as to the damages alleged to have been sustained, and although we have reached the conclusion that the learned court erred in the admission of the testimony embraced in the sixth and seventh specifications of error, yet we are not convinced that if the testimony embraced in the sixth and seventh specifications had been rejected, the court would have been justified in withdrawing the case from the jury. And, therefore, the fourth and twelfth specifications are dismissed.

The third position contended for by the learned counsel for defendants, is that the court erred in admitting the testimony of Mrs. Mary Roland and Miss Susan Bristley (sixth and seventh specifications). Upon a careful consideration of this testimony we feel compelled to hold that it ought not to have been admitted. When we recall the testimony that the plaintiff selected his own attorney, Mr. Becker, to supervise and prepare the contract between the parties, and that it is conceded that Becker drew a writing between the parties prior to the execution of the deed, which writing it is conceded contained no reference to any agreement of the defendants to remove the foundry and build dwelling houses, we think the plaintiff ought to be required to sustain the oral contract sued upon by better testimony than that of Mrs. Roland and Miss Bristley. These ladies were not shown to have any authority whatever to represent the plaintiff when they inspected the house. Mrs. Roland testified that Mr. Shaaber did not know who she was, and the substance of her testimony is, “He took us through the house, and then sister objected to the-, she said the houses were beautiful, she liked the house very much but she objected to the surroundings, the dirt, and then she said in case of fire, and he says, ‘ You don’t have to be afraid of that,’ he said that the foundry is coming down, we are going to build houses there. We didn’t ask him if he was going to build any, he told us. He stated no time, nó, sir.” The testimony of Miss Bristley does not materially differ from that of Mrs. Roland, except she stated that she' told plaintiff what Mr. Shaaber stated. We think this testimony was too loose, vague and uncertain to be submitted to a jury as evidence of a contract between the plaintiff and the defendants for the removal of the foundry and the erection of the dwelling houses. The statements of Mr. Shaaber, as testified to by these ladies, does not tend to prove that the defendants had any contract with the plaintiff requiring the removal of the foundry and the building of the dwelling houses. At most, it could only be considered as the expression of an intent or purpose at some time or other to make the change referred to. Moreover, the statements referred to by Mrs. Roland and Miss Bristley were made some time before the contract was consummated at Mr. Becker’s office between the plaintiff and the defendants. We regard this as dangerous evidence to submit to a jury in support of the contract alleged by the plaintiff. "While it does not refer to a contract at all, ■yet it may have influenced the jury to find that there was such a contract between the parties as the plaintiff was contending for. The sixth and seventh specifications of error are sustained.

Wé are not convinced that any of the other specifications of error can be sustained, and they are all overruled, but on the sixth and seventh specifications the judgment is reversed with a venire facias de novo.


author: Head, J.,

text:
    Davis, Appellant, v. Pennsylvania Railroad Company.
    July 20, 1910:

      Railroads — Construction of causeway — Farm crossing — Petition for jurors — Jurisdiction—Act of February 19, 1849, secs. 11 and IB, P. L. 79.

    A petition by a landowner for the appointment of viewers to assess damages against a railroad company for failure to provide a farm crossing must be granted, and jurors appointed forthwith, if the petition is in proper form and contains all essential jurisdictional averments. The court has no power to grant a preliminary rule to show cause, take testimony under such rule and dismiss the petition on the ground that the allegations of fact in it were not true. In such a proceeding all disputed matters of fact are for the viewers.
    Argued Nov. 11, 1909.
    Appeal, No. 121, Oct. T., 1909, by plaintiff, from order of C. P. Lancaster Co., Trust Book No. 21, page 95, dismissing petition to appoint viewers to assess damages in case of Joseph W. Davis v. Pennsylvania Railroad Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Petition for the appointment of viewers. Before Landis, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was in dismissing the petition.

      B. F. Davis, for appellant.

      Henry Wolf Bible, with him John A. Nauman, for appellee.
   Opinion by

Head, J.,

The appellant owns and lives on a farm in Lancaster county through which the railroad company, the appellee, located and 'constructed one of its branch lines. As the line was constructed it passed through his land chiefly above or below the natural grade and thus cut it into two portions. The necessary land for the right of way was appropriated by the company under its right of eminent domain, and the damages therefor were in due time ascertained by the usual methods and have been paid.

Some time later the appellant began this proceeding by filing his petition in the court of common pleas, in which, after describing the manner in which his property had been divided, he further averred as follows, “and the said Pennsylvania Railroad Company has neglected and refused to make a causeway or bridge over said road for the use of himself and- the occupants of his land to cross or pass over the same with wagons, carts and implements of husbandry as occasion may require, and has also neglected to maintain and keep in good repair any such causeway. That no crossing or causeway has been made at any place along the line of said railroad, where it crosses your petitioner’s land, for his benefit or use. That they have placed across their track on the east side of the plaintiff’s land a kind of crossing, put up, as petitioner believes, for the accommodation of the contractor of the said railroad, and is not located in any proper place, nor is it any benefit to your petitioner’s premises, and is not maintained nor kept in good repair by said railroad company.” The petition then prayed for the appointment of viewers to assess the damages sustained by the petitioner by reason of the neglect and refusal of the railway to make or to properly maintain a causeway in the manner provided by the act of assembly. The court below in the first place granted a rule to show cause why the viewers should not be appointed as prayed for. The defendant company filed an answer in which it traversed the allegations of fact in the petition alleging that it had constructed one crossing or causeway for the use of the plaintiff and was maintaining it in proper repair. The company then proceeded to take the depositions of witnesses against'the protest of plaintiff’s counsel who filed the following objection thereto: “I object to the taking of depositions on this rule for the reason that the matters referred to in the petition and answer are matters for the jury of viewers to dispose of.” The depositions were nevertheless taken, and the court, after argument, undertook to determine that the allegations of fact in the petition were not true, and that as a consequence the petitioner had not shown that he was a person aggrieved within the meaning of the statute, and discharged the rule. From this order the petitioner appeals.

The eleventh section of the Act of February 19, 1849, P. L. 79, provides that when the company and the landowner are unable to agree upon the damages done to the land of such owner, “the court of common pleas of the proper county, on application thereto by petition either by said company or owner, shall appoint seven discreet and disinterested freeholders,” etc. Provision is then made for the view, report, etc., the various steps of such proceeding being so familiar that they need not here be quoted.

The twelfth section of the same act imposes upon the railroad company, in a case like the one now before us, the obligation of making and maintaining a good and sufficient causeway whenever the same may be necessary to enable the occupant of the land to cross or pass over the same with wagons, carts and implements of husbandry as occasion may require. In other words, this section of the act requires the railroad company to do precisely the things which the petition avers, in the very words of the act, it has neglected and refused to do. The act then provides that in case of such neglect or refusal after request made, the company “shall be liable to pay any person aggrieved thereby all damages sustained by such person in consequence of such neglect or refusal; such damages to be assessed and ascertained in the same manner as provided in the last section for the assessment of damages.” We have just seen under the eleventh section that whenever the owner presents his petition to the court setting out the necessary jurisdictional facts, it is made the duty of the court to appoint viewer's. It is upon this body, and not upon the court appointing them, that the law has imposed in the first instance the duty of ascertaining the facts upon which the owner’s claim for damages must rest. It would be a novelty entirely without precedent if the court, on the coming in of the petition contemplated by the act, were to institute or permit the institution of a preliminary collateral inquiry with the idea of determining that the allegations of fact in the petition were not true. It seems to us this would be a plain usurpation of the duties imposed by the law on another tribunal. The law contemplates in such cases a jury of view. This body is required first of all to go upon the premises and actually see with their own eyes the conditions existing there. They may then have their judgment aided by the testimony of witnesses, but this will not supply their obligation to view the property.

We may concede that the court is invested with supervisory power over their report when made. If, for instance, upon exceptions to the report it should appear that the petition upon which the whole proceeding rests was lacking in the averment of any essential or jurisdictional fact, the whole proceeding might be set aside, but no authority we think can be found for the proposition that it was the legislative intent that the court could refuse the prayer of the landowner on a petition in which every necessary jurisdictional fact was properly averred. The law, however, does not make the finding of the viewers, even on questions of fact, necessarily conclusive. To either party aggrieved thereby the right of appeal is given, so that ultimately contested questions of fact may be passed upon by a jury sitting with a trial judge under the forms of the common law.

Now the proceeding contemplated under the twelfth section is precisely the same as if it were under the eleventh, and we are unable to escape the conclusion that the learned court fell into error in undertaking to determine, in the manner we have indicated, the truth of the allegations of fact averred in the petition and denied in the answer.

There are a number of considerations that must be kept in mind in determining whether or not the company has performed its statutory obligation. It is probably true that in the first instance the company is invested with discretion to locate a crossing or causeway they are required ro build and maintain. In the exercise of that discretion they certainly cannot entirely ignore the necessities or even the reasonable convenience of the landowner. The duty of the company in such cases is thus described in Dubbs v. Railroad Co., 148 Pa. 66: “The plain object of the act of 1849 was to compel railroad companies to give the owners of farms a convenient mode of access from one part to the other, when divided by a railroad. While it may not be impossible for a farmer, in gathering his crops, to make a detour of half a mile in getting from one field to an adjoining field, it would nevertheless be intolerably inconvenient. It was to provide for such and similar cases that the act of 1849 was passed. ... As before observed, its object was to furnish convenient aecess from one part of the land to the other, and we quite agree with the learned court below, that the crossing referred to was necessary to give such access, and that it ought not to have been removed.” It thus appears that it is of the first importance that the actual situation, as it exists on the ground, should be clearly ascertained before it can be determined whether or not the railroad company has complied with its statutory obligation.

It is clear of course under the language of the statute that the owner is given the right to but one crossing or causeway for his entire tract. The act does not attempt to define or describe the character of the structure, as that would necessarily vary according to the conditions and circumstances. One case might of necessity demand the construction of an overhead bridge, another of an archway or tunnel under the right of way, whilst in many cases the reasonable convenience of the owner can be satisfied and the obligations of the statute fulfilled by the construction of a grade crossing in a proper location.

As we have already stated, the learned counsel for the appellee has been unable to furnish any authority in support of the order appealed from, nor do we find the reasoning of the opinion of the learned judge below convincing. In Bredin v. Pittsburg & Western Railway Co., 165 Pa 262, the landowner filed his petition for the appointment of viewers. The railway company opposed the appointment for a number of reasons involving matters of fact, the chief among them being that the former owner of the land had made a grant of the right of way and that the rights of the petitioner were acquired after that grant, etc. The learned court below, however, appointed the viewers and the railroad company appealed. In the course of the opinion the Supreme Court used the following expressions: “This certiorari brings before us nothing but the record proper of the court below. There is nothing in it that is sufficient to convict the court of error in allowing the amendment, or in appointing the viewers. Defendant company’s main objections to the latter aré grounded upon matters of fact which are not admitted and upon which we cannot undertake to pass at this stage of the proceedings. . . . If it should ever become necessary, these and other questions of fact can be better settled by proceeding in the regular and orderly way. The viewers have full power to inquire and report, inter alia, what, if any, damages should be paid by defendant company, and to whom payable. An attempt to anticipate and settle all questions, both of law and fact, before viewers are even appointed, is at least suggestive of obstructive proceedings.”

Whilst, therefore, there is some paucity of authority on the exact question now before us, what we have is in harmony with the conclusion'that seems to plainly flow from an examination of the language of the act of assembly itself.

The order discharging the rule for the appointment of viewers is reversed and set aside. The rule is reinstated and a procedendo awarded. The costs of this appeal to be paid by the appellee.