text:
    Reece v. Rodgers, Appellant.

      Appeals — Assignments of error- — Nonsuit.
    1. The refusal of a compulsory nonsuit is not assignable for error; a refusal to take off a nonsuit is the only action respecting it which can be reviewed.

      Landlord and tenant — Landlord’s warrant — Constable—Unlawful distress and sale — Liability of landlord.

    2. Where a constable makes an unlawful distress and sale under a landlord’s warrant, the landlord is liable jointly with the constable for the trespass.
    3. Where a constable distrains and sells goods already levied upon by the sheriff under a judgment against the tenant, the latter cannot maintain an action against the landlord for the alleged trespass. The levy by the sheriff divested the tenant of his possession, and right to possession, and in the absence of either the possession or the right to possession he cannot maintain trespass. The'mere fact that the sheriff did not remove the property, but left it in care of the tenant, is immaterial.
    4. Where rent is payable monthly in advance and a levy is made by the sheriff on the tenant’s goods after the rent has been paid for the month, the landlord is not entitled to any rent for the following month out of the proceeds of the sheriff's sale on the levy, inasmuch as no rent is due at the time of the levy. Rent is apportionable to the date of the levy, but cannot be claimed to the time of the sale.

      Interest — Damages—Trespass.

      5. In an action for tort it is reversible error for the trial judge in directing a verdict for plaintiff to tell the jury that they could add legal interest thereto. In such cases compensation for deferred payments depends on the circumstances of each case. The jury may be told that they may add to the damages an amount not to exceed legal interest, or a less amount as they see fit.
    Argued April 28, 1909.
    Appeal, No. 158, April T., 1909, by defendants, from judgment of C. P. No. 1, Allegheny Co., June T., 1905, No. 102, on verdict for plaintiff in case of George M. Reece v. Sadie F. Rodgers and William J. Morris.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for an alleged illegal distress in sale. Before Brown, P. J.

      The facts appear by the opinion of the Superior Court.
    At the trial the plaintiff presented the following points:
    1. The goods levied on in this case having been in the custody of the sheriff by virtue of the fieri facias issued at No. 10, April Term, 1905, the plaintiff has no right of action and is not entitled to maintain this suit, and therefore cannot recover. Answer: Refused. Exception and bill sealed for defendants. [3]
    2. That the plaintiff, if entitled to recover anything, is only entitled to recover nominal damages. Answer: Refused. Exception and bill sealed for defendants. [4]
    3. That under all the pleadings and the evidence in this case, the verdict must be for the defendants. Answer: Refused. Exception and bill sealed for defendants. [5]
    The court charged in part as follows:
    [In violation of these statutory provisions for the protection of her rent, and in violation of plaintiff’s rights, Mrs. Rodgers and Mr. Morris, the constable, by virtue of the landlord’s warrant unlawfully sold Mr. Reece’s property on March 3, 1905. This sale being illegal, the defendants are responsible for the resulting damages.] [6]
    [Are they responsible to the plaintiff in this action, or is his remedy limited solely to an action against the sheriff and his bondsmen for the sheriff’s failure to return to him the property, the subject-matter of dispute in this action? It clearly appears that the property — although not sold by the sheriff— was included in the levy made by him under the Garland execution. Not having been sold- — and the life of the Garland execution, and of another execution, having expired by the sheriff’s return of sale and distribution of March 9, 1905 — by operation of law the unsold property (the property in the present action) passed from the custody of the law to Reece;’ and the sheriff having failed to restore it to him, he had the right to sue the sheriff and his bondsmen — but that was not his only remedy. He had a choice of remedies, among them, the right to sue Mrs. Rodgers and Mr. Morris, for they by the illegal sale on the landlord’s warrant were the direct cause of the injury. As this ground alone entitles plaintiff to a recovcry, it is unnecessary to have you pass upon the other ground presented.] [7]
    The record showed the following:
    "At 2:40 p. M. the jury returned with a verdict for the plaintiff, finding the value of the goods at $1,174 with interest, and $500 damages, and were directed by the court to return to the court room with a verdict leaving out the last item.
    “At 2:45 p. m. the jury returned to the court room, having been sent for by the court.
    The Court: Gentlemen, when you came in before there was one thing that escaped me. I forgot to ask you whether by your verdict you meant to return a verdict against the defendants for the sum of $500, or whether you meant to return a verdict in the sum of $1,174 with interest at six per cent.
    A Juror: And the additional damages added, $500 added for the license.
    The Court: You haven’t a thing to do with that. They didn’t sell the license.
    A Juror: He lost the use of it.
    The Court: No, that was not the case. You were limited simply to the value of the property sold on that landlord’s warrant. You don’t need to say anything about the value of the property. You simply render a verdict for the value of the property actually sold on the landlord’s warrant, with compensation, at your discretion, for delay in payment not exceeding six per cent. So to the amount that you intended to render against the defendants, $1,174, you may add interest at six per cent. Those two amounts are the amount of your verdict, and you will render a verdict for a lump sum. Those two amounts added together is the amount you want to find, striking out the last item.
    Bill of exceptions sealed for defendants and plaintiff to the additional instructions of the court. [8]
    Verdict and judgment for plaintiff for $1,174, with interest at six per cent, $260.24, making a total of $1,434.24.

      Errors assigned were (1) refusal of nonsuit; (2) refusal of motion for severance; (3-8) above instructions, quoting them.

      William A. Jordan and B. B. Petty, with them Chantler & McClung, for appellants.
    To maintain trespass it is absolutely necessary that plaintiff must be in actual possession, or have the right of taking possession at the time of the trespass: Ward v. Taylor, 1 Pa. 238; Waldron v. Haupt, 52 Pa. 408; Kitchen v. McCloskey, 150 Pa. 376; Pierce v. Scott, 4 W. & S. 344; Taylor v. Manderson, 1 Ash. 130.
    Where a joint tort is alleged and the proof offered is only of' a tort by one defendant, there should be a severance as to that defendant, and the case ought not to be permitted to go to the jury as to that defendant: Minnich v. Ry. Co., 203 Pa. 632; Sturzebecker v. Inland Traction Co., 211 Pa. 156; Goodman v. Coal Township, 206 Pa. 621; Dutton v. Lansdowne Boro., 198 Pa. 563; Howard v. Union Traction Co., 195 Pa. 391.
    The rent is to be apportioned, to the date of the levy, but the landlord is not entitled to claim rent to the time of the sale: West v. Sink, 2 Yeates, 274; Binns v. Hudson, 5 Binn. 505; Lichtenthaler v. Thompson, 13 S. & R. 157.

      H. Fred Mercer, with him L. W. Mendenhall, for appellee
    General property in personalty draws unto itself the possession sufficient' to enable the owner to maintain trespass, even though he has never been in possession: Mather v. Ministers of Trinity Church, 3 S. & R. 509; Becker v. Smith, 59 Pa. 469; Dixon v. White Sewing Machine Company, 128 Pa. 397; Robinson v. Hart, 23 Pa. Superior Ct. 299.
    As to the liability of the principal, Mrs. Rodgers, one of the defendants, plaintiff submits that she is responsible for the conduct of her agent or bailiff, W. J. Morris, although his specific acts may not in fact have been authorized by her: Hagerstown Bank v. Loudon Savings Fund Society, 3 Grant, 135; McElroy v. Dice, 17 Pa. 163; Kerr v. Sharp, 14 S. & R. 399.
    July 14, 1909:
   Opinion by

Morrison, J.,

This was an action of trespass brought to recover damages against the defendants for an alleged illegal sale of plaintiff’s personal property by virtue of a landlord’s warrant issued on behalf of Sadie F. Rodgers to William H. Morris, he being a constable. The learned court below practically directed a verdict in favor of the plaintiff for $1,174 and directed the jury to add interest at the rate of six per cent to that amount from the date of the alleged trespass to the date of verdict. The jury obeyed this instruction and returned a verdict for $1,434.24, $260.24 of this amount being interest at six per cent.

‘ Counsel for appellee concedes in his history of the case that on January 7,1905, a fi. fa. was issued to the sheriff of Allegheny county on a judgment against the defendant therein, the plaintiff in this case, and that on January 9, 1905, the sheriff levied under said fi. fa. on all of the personal property of the said plaintiff, and that considerable portion of said property was the same afterwards sold by the defendants, on March 3, 1905, on the said landlord’s warrant, dated February 18, 1905, for rent due Sadie F. Rodgers on February 1, 1905, amounting to $113.64. The counsel further contends that the defendants sold on said landlord’s warrant goods which had not been previously appraised. However, the evidence does not point out, with certainty, the goods that were sold without being appraised. The evidence is quite clear that the goods seized by virtue of the warrant were duly appraised.

The undisputed evidence shows that said Morris, constable, had in his hands an execution from Alderman McMaster’s docket, dated February 24,1905, against the plaintiff and that he duly levied and advertised some of plaintiff’s personal property to be sold on said execution on March 3,1905. These were some of the same goods levied on by the sheriff on January 9, 1905. The evidence is quite clear that on March 3, 1905, constable Morris sold some of the plaintiff’s goods on the landlord’s warrant and some of them on said execution. For this reason it is not at all clear that the constable sold goods on the landlord’s warrant which had not been appraised. We ought not to presume that the constable did an unlawful act in this respect. It seems quite probable that the unappraised goods were sold on the alderman’s execution. It also appears in evidence, without dispute, that on March 2, 1905, a fi. fa. issued to the sheriff on a judgment of the Duquesne Brewing Company against George M. Reece for the collection of the sum of $4,000. It further appears that on the first mentioned fi. fa. the sheriff levied on all of the present plaintiff’s personal property and his leasehold, and that on February 18, 1905, the sheriff released a considerable portion of this personal property to claimants under interpleader proceedings: The sheriff finally returned that on March 9,1905, at the place of business of the present plaintiff, he sold at public vendue the personal property of the de- ’ fendant (George M. Reece) for $65.00 and all personal property claimed delivered to claimants.

Upon the trial of the present case, the above facts appeared in evidence and there was not much dispute about any of them. The plaintiff’s declaration, after stating some formal matters, charged that upon March 3, 1905, the defendants entered upon the premises of the plaintiff and there unlawfully exposed to sale and sold certain personal property belonging to said plaintiff of the value of $1,500; that said sale was made under the pretended authority of a landlord’s warrant issued by Sadie F. Rodgers and addressed to William J. Morris. “That said sale of property was illegal in this: First, that said property was already in the custody of the law by virtue of fi. fa. issued out of the court of common pleas No. 2 of Allegheny county at No. 10, April Term, 1905, upon a judgment at No. 336, January Term, 1905, D. S. B., which said levy was made on the 9th day of January, 1905.”

There are no grounds laid in the declaration for recovering damages for any goods and chattels, except those specifically stated to have been in the custody of the law by virtue of the fi. fa. and levy above stated. All else in the declaration is merely in aggravation of the damages as to the said property in the custody of the law. According to plaintiff’s declaration, he did not sue for property that came into his hands after the sheriff’s levy; he expressly declared for the property only that was in the custody of the law as aforesaid. This suggestion disposes of his counsel’s argument that the judgment can be sustained because the defendants sold property that was not levied on nor appraised. The controlling question for our decision is, can the plaintiff sustain this action against the defendants for damages caused by the selling of his personal property which was in the custody of the law at the time it was seized, advertised and sold, as stated in his declaration. We think the law is settled that he cannot do so. At the close of the plaintiff’s testimony, counsel for defendants moved for a compulsory nonsuit based on the fact that the goods sold by the defendants were in the custody of the law. This motion was refused. At the close of the evi-dence, the defendants’ counsel requested the court to charge that the goods levied on in this case, having been in the custody of the sheriff by virtue of the fi. fa. issued at No. 10, April Term, 1905, the plaintiff has no right of action and is not entitled to maintain this suit and, therefore, cannot recover. This was refused with an exception and bill sealed for the defendants. Counsel also requested the court to charge that under the pleadings and all of the evidence in this case, the verdict must be for the defendants. This point was refused with an exception and bill sealed. There was also an exception to the charge of the court in directing the verdict for $1,174, with interest at six per cent to be added. After the verdict was rendered and entered, counsel for defendant moved the court, in accordance with the statute, for judgment for the defendants non obstante veredicto. This motion was refused and judgment granted for the plaintiff on the verdict, and an exception and bill sealed for defendants. There are other assignments of error, but the view we take of this case, perhaps, renders it unnecessary to discuss each assignment separately and at length.

The first assignment of error is that the court erred in refusing defendants’ motion for a compulsory nonsuit. Neither the granting nor the refusal of a compulsory nonsuit is assignable for error. In Rockwell v. Eldred Borough, 7 Pa. Superior Ct. 95, we said: “ Neither the entry nor the refusal of a compulsory non-suit can be assigned for error; a refusal to take it off is the only action respecting it which can be reviewed. This has been decided so often that citation of authorities is unnecessary.”

The second assignment is to the refusal of the court to grant a severance to Sadie F. Rodgers on the theory that if there was a trespass, she had no hand in it and no knowledge of it. But the landlord’s warrant was hers and the constable was acting thereunder, and, therefore, we are of the opinion that if thei’e was a trespass, she was jointly liable with her bailiff: McElroy v. Dice, 17 Pa. 163; Kerr v. Sharp, 14 S. & R. 399. The second assignment is not sustained.

But the important question is raised by the third, fifth, ninth and tenth assignments of error. “When the distress is made on goods which were previously levied upon on execution or foreign attachment, the distrainor does not become liable in an action of trespass at the instance of the tenant, or the plaintiff at whose suit the levy was made.

“Such a distress is a trespass against the officer who levied upon the chattels, as such goods are privileged from, distress. In such a case the execution creditor cannot bring an action of trespass against the landlord, his remedy being against the officer who made the levy, and who may bring an action of trespass or trover against any third person, who wrongfully divested him of the fruit of his levy:” Jackson & Gross, Landlord & Tenant, secs. 1135, 1136. See also Taylor v. Manderson, 1 Ashmead, 130; Pierce v. Scott, 4 W. & S. 344.

The levying by thé sheriff of an attachment or execution on chattels may be made by him without any manual handling of the property, and the property fully bound by it, and be in the officer’s power and possession, and the owner divested of the possession: Paxton v. Steckel, 2 Pa. 93. To maintain trespass it is absolutely necessary that the plaintiff must be in actual possession, or have the right of taking possession at the time of the trespass: Ward v. Taylor, 1 Pa. 238.

When the sheriff levies on goods under an execution, it divests the possession of the owner, and vests the sole and absolute possession of the goods levied upon in the sheriff, so absolutely and completely that the owner himself becomes a trespasser by removing the goods so seized. No possession or right of possession remains in the owner. Such levy vests the possession so fully in the sheriff, that he may maintain trespass for any disturbance of it: Welsh v. Bell, 32 Pa. 12. We think the levy by the sheriff under the fi. fa. of January 9, 1905, so completely divested the possession of the present plaintiff that he could not maintain this action of trespass. If the defendants committed a trespass the right of action was in the sheriff: Dixon v. White Sewing Machine Co., 128 Pa. 397, and cases cited.

“A sheriff is absolutely liable for the forthcoming of property levied upon by him under an execution, unless deprived of it by the act of God, sudden accident or the public enemy.

“Hence, where a sheriff levied on goods sufficient to pay the debt of the plaintiff, and a part were stolen between the levy and sale, so that the money could not be made, he is responsible for the deficiency:” Hartlieb v. McLane’s Admrs., 44 Pa. 510. In this connection it will be recalled that the sheriff in the present case returned that he had released part of the plaintiff’s property to claimants and had sold the residue and it does not appear that the sheriff ever made any complaint against these defendants for seizing and selling personal property claimed by the plaintiff.

The learned court held, in his charge to the jury, that the plaintiff had the “right to sue the sheriff and his bondsmen— but that was not his only remedy. He had a choice of remedies, among them, the right to sue Mrs. Rodgers and Mr. Morris, for they by the illegal sale on the landlord’s warrant were the direct cause of the injury. As this ground alone entitles plaintiff to a recovery, it is unnecessary to have you pass upon the other ground presented,” etc. This is assigned for error in the seventh assignment. The learned court lost sight of the fact that the property claimed for in the declaration was all in the possession of the sheriff by virtue of his levy on the fi. fa. and this divested the possession of the plaintiff so that he could not maintain trespass.

It is argued by counsel for appellee that the sheriff did not remove the plaintiff’s personal property but left it in the care of the latter. We cannot see much force in this. The plaintiff avers in his declaration that the property was in the sheriff’s custody and in the custody of the law and if the sheriff left the property in the care of the plaintiff, this did not affect the sheriff’s possession under his levy nor did it vest any possession in the plaintiff in his own right.

In the charge to the jury the court cited and read secs. 83, 84 and 85 of the Act of June 16,1836, P. L. 755, and then said, as raised by the sixth assignment: ■ “ In violation of these statutory provisions for the protection of her rent, and in violation of plaintiff’s rights, Mrs. Rodgers and Mr. Morris, the constable, by virtue of the landlord’s warrant, unlawfully sold Mr. Reece’s property on March 3, 1905.” In this connection the court emphasized to the jury that Mrs. Rodgers should have presented her rent claim to the sheriff and have received her rent from the proceeds of his sale. In so charging the learned court lost sight of the fact that no rent was due Mrs. Rodgers at the time the sheriff seized the goods under the fi. fa. Her rent was payable monthly in advance on the first day of each month. The January rent was fully paid and no rent was due till February 1,1905. It has been decided that the rent may be apportioned to the date of the levy, but the landlord is not entitled to claim rent till the time of the sale. In Wickey v. Eyster, 58 Pa. 501, it was held by the Supreme Court (Agnew, J.): “The settled interpretation of the 83d section of the act of June 16th, 1836, following that of the 4th section of the Act of March 21st, 1772, 1 Sm. L. 370, has been that the rent for the current quarter or year, at the time of the levy of the tenant’s goods in execution upon the demised premises, although not then due, will be apportioned up to the time of the levy. If the goods are such as would be liable to distress in case the rent were due, the landlord can claim this proportion of his rent out of the proceeds of the sale upon the execution,” citing several cases. Judge Agnew then further says: “The doctrine of apportionment as applied to the 83d section of the act of 1836 has been denied in other cases as unfounded in principle. . . . But the doctrine of stare decisis requires adherence to it in the case before the court.”

In the present case Mrs. Rodgers’ rent was paid for all of the month of January and the levy being made on the ninth of that month she was not entitled to any rent for the month of February out of the proceeds of the sheriff’s sale on his levy above mentioned. This is so because no portion of the February rent had accrued when the levy was made. Therefore, the court’s charge in this respect tended to mislead the jury. The sixth assignment is sustained.

We desire to refer briefly to the eighth assignment. The learned court instructed the jury to return a verdict for a certain amount and add legal interest thereto. It was not a case for a binding instruction as to amount. It has often been decided that it is error to instruct a jury to add interest to the amount of damages they assess in an action of tort. Where the damages are unliquidated, the jury should be instructed that they may add not to exceed legal interest or a less amount as they see fit. “Interest is recoverable of right, but compensation for deferred payments in torts, depends on the circumstances of each case:” Phila. Ball Club, Ltd., v. Phila., 192 Pa. 632; Richards v. Citizens’ Nat. Gas Co., 130 Pa. 37; Shevalier v. Postal Tel. Co., 22 Pa. Superior Ct. 506. The eighth assignment is sustained.

We are of the opinion that upon the pleadings and evidence in this case the learned court erred in not giving a binding instruction in favor of the defendants and in discharging the rule for judgment in their favor non obstante veredicto.

The judgment is reversed and-judgment is here entered in favor of defendants non obstante veredicto.


source: Caselaw Access Project

author: Orlady J.,

license: Public Domain

text:
    Sloan, Appellant, v. Hoyt.

      Railroads — Eminent domain — Location of road — Death of owner — Distribution of fund — Real or personal property.

    1. Where a railroad company directs a survey of land to be made for railroad purposes, and the survey and location is regularly adopted by the board of directors, and subsequently, but before a bond is filed, the owner of the land dies intestate, the damages awarded for the taking of the land are to be distributed as personal property and not as real estate.
    2. In such a case the act of location is at the same time the act of appropriation. The' space covered by the line as located, is thereby seized and appropriated to the purposes of construction and operation of the railroad by virtue of the power of eminent domain, and nothing remains to be done except to compensate the owner. The proceedings subsequent to the death of the owner are simply to ascertain the amount of money the railroad company is to pay, and the persons entitled thereto.

      Argued May 4, 1909.
    Appeal, No. 137, April T., 1909, by plaintiffs, from judgment of C. P. Indiana Co., Dec. T., 1908, No. 49, on case stated in suit of Elizabeth Jane Sloan et al. v. Rebecca S. Hoyt.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine the ownership of a portion of a fund awarded as damages for taking of land for railroad purposes. Before Telford, P. J.
    In addition to the facts stated in the opinion of the Superior Court it appeared that the land in question descended to Martha Sloan from her father, Thomas N. Sloan.
    The court entered judgment in favor of the defendant.

      Error assigned was in entering judgment for defendant.

      A. E. Sloan, with him Cunningham & Fisher and D. B. Taylor, for appellants.
    Where the dispute or controversy is between the railroad company and the landowner, the time of the appropriation is the date of the filing and approval of the bond, and until that time no absolute title passes from the owner to the railroad company: Fries v. Southern Penna. R. R. & Mining Co., 85 Pa. 73; West Penna. R. R. Co. v. Johnston, 59 Pa. 290; McClinton v. Pittsburg, Fort Wayne and Chicago Ry. Co., 66 Pa. 404; Buffalo, N. Y. and Phila. R. R. Co. v. Harvey, 107 Pa. 319; Williamsport, etc., R. R. Co. v. Phila., etc., R. R. Co., 141 Pa. 407; Phila., etc., R. R. Co. v. Cooper, 105 Pa. 239; Oliver v. Pittsburg, etc., Ry. Co., 131 Pa. 408.

      J. N. Banks, for appellee.
    The selection and adoption of a line as and for the location of a railroad followed by the adoption of the location by the board of directors fastens a servitude upon the property affected, and takes it from the owner, and appropriates it for the use of the corporation. This right, however, is only a conditional one which ripens into an absolute right upon making compensation for the land taken: Williamsport & North Branch R. R. Co. v. Phila. & Erie R. R. Co., 141 Pa. 407.

      The damage accrues at the time of the appropriation when compensation could be first demanded, whether possession has been taken or not, and a subsequent purchaser of the land cannot maintain a proceeding to recover damages done to him by-reason of such appropriation: Zimmerman v. Union Canal Co., 1 W. & S. 346; Johnston v. Callery, 184 Pa. 146; Losch’s App., 109 Pa. 72; Blackiston’s App., 81* Pa. 339.
    July 14, 1909:
   Opinion by

Orlady J.,

The Pennsylvania Railroad Company, in the lifetime of Martha Sloan, who was the admitted owner of certain lands in Indiana county out of which this contest arises, caused a survey to be made of a part of said lands for railroad purposes; the company, by its board of directors at a meeting held on the day of 1906, at Philadelphia, and during the lifetime of Martha Sloan, passed a resolution approving the survey as made, and directed the construction of the railroad tracks thereon for its uses and purposes.

On June 13, 1906, Martha Sloan died intestate and without issue, leaving as her next of kin thirteen persons, all of whom were first cousins. Twelve of these are children of her paternal aunts and uncles, and one is a daughter of a maternal aunt. On June 15,1906, the railroad company entered upon the lands embraced in the survey, and commenced its work of construction thereon. On August 20, 1906, the railroad company filed a bond in the court of common pleas of Indiana county, together with a petition for the condemnation of the land described in the survey, which bond was approved November 4, 1907. On January 15, 1908, upon the petition of the railroad company, viewers were appointed to view the premises and assess the damages. On February 12, 1908, the viewers met and assessed the damages at 18,000. On September 16, 1908, the counsel for all parties interested agreed upon the facts, in the form of a case stated, in which all the children of the paternal aunts and uncles are named as-plaintiffs, and the daughter of the maternal aunt as the defendant.

The question for determination was, whether the land appropriated by the railroad company passed to the next of kin of Martha Sloan as real estate, then, the damages recovered from the railroad company by reason of the taking of the right of way through the land, should be distributed to the twelve persons named as plaintiffs, children of paternal aunts and uncles; but, if it should be distributed as personal property, then one-thirteenth part was to be awarded to the defendant. After the hearing the court concluded, that at the time of the appropriation, which was the date of the approval of the survey by the board of directors of the railroad company, the matter in controversy was changed from land, to money which was due from the railroad company to Martha Sloan, and that the fund realized from the proceeding to ascertain the damages for the appropriation of the land, was personal property in the lifetime of Martha Sloan, and directed that judgment be entered for the defendant upon the case stated,

The only error assigned is that the court erred in holding that the damages arising from the appropriation of the land passed as personal property instead of real estate. The principles declared in Johnston v. Callery, 184 Pa. 146, control this case, in which it is held that, “The successive steps contemplated by the act of 1849 and subsequent legislation, as necessary to vest a title to the roadway in the corporation are these: 1. A preliminary entry on the lands of private owners for the purpose of exploration. 2. The selection and adoption of a line, or one of the lines so run, as and for the proposed railroad. This is done by the corporation, and it requires action in some form of the board of directors. That makes what was before experimental and open, a fixed and definite location. It fastens a servitude upon the property affected thereby, and so takes the land from the owner and appropriates it to the use of the corporation. 3. Payment to the owner for what is taken and the consequences of the taking, or giving security that payment shall be made when the amount due him is legally ascertained.

The act of location is at the same time the act of appropriation. The space covered by the line as located is, thereby, seized and appropriated to the purposes of the construction and operation of the railroad, by virtue of the power of eminent domain, and nothing remains to be done except to compensate the owner. After the act of location by the company, the ownér or the company may proceed at once to secure an ascertainment of the damages. When the engineers have returned to the office of the company, the projected surveys of the line or lines run, and the survey thus made has been formally adopted and declared to be the location of the road, that constitutes and completes the fact of location.

Under the facts stated, the preliminary entry on the lands for the purpose of exploration had been made; during the lifetime of Martha Sloan the line had been run and marked out; a report had been made of their work with accompanying maps and profiles; a regular meeting of the board of directors had been held, and a resolution had been passed, approving and adopting the entry and the survey as made, and directing the construction of railroad tracks in accordance therewith.

As stated in Johnston v. Callery, 173 Pa. 129, The act of location is at the same time the act of appropriation. The space covered by the lines as located, is thereby seized and appropriated to the purposes of construction and operation of the railroad by virtue of the power of eminent domain, and nothing remains to be done except to compensate the owner. The proceedings subsequent to the death of Martha Sloan were simply to ascertain the amount of money the railroad company was to pay, and the persons entitled thereto.

Zimmerman v. Union Canal Co., 1 W. & S. 346; Blackiston’s Appeal, 81 * Pa. 339; Sibbald’s Est., 18 Pa. 249; Losch’s App., 109 Pa. 72, hold that the right to damages for injuries done to lands occasioned by the construction of public improvement, remains in the person who was the owner of the land at the time of the injury, and passes not to the vendee by virtue of a subsequent conveyance, and even where a sovereign for the purpose of promoting the peace of the country seizes the land itself, taking it from one man and conveying to another, the right in the land which existed in the first owner, before the seizure is converted into a chose in action, passes not by a conveyance of the land, and is not assignable either directly or indirectly. This was decided upon great consideration in Com. v. Shepard, 3 P. & W. 509, and for the purpose of establishing the doctrine the contrary principle adopted in Evans v. Com., 2 S. & R. 441, was re-examined and overruled. The fund produced by the claim for damages was properly distributed as money and not as land. Even a subsequent purchaser of the land could not maintain a proceeding to recover damages done to him by reason of such an appropriation. The bond filed by the company stands for the benefit of all persons having an interest in the money accruing from the previous taking of the land. The death of Martha Sloan alone prevented an adjustment of the damages with her or the filing of a bond in her lifetime.

The judgment is affirmed.


author: Beaver, J.,

text:
    Krider v. Hartzell, Appellant.

      Appeals — Paper-books—Failure to print evidence — Charge.
    1. Where an appellant fails to print in his paper-book a writing which is an essential feature of the case, the appellate court will accept as correct the statements made as to the paper by the trial judge in his charge.

      Husband and wife — Loan or gift of money — Presumption—Evidence.
    2. Where a husband receives from his wife money which is a part of her separate estate, the presumption is that he takes it as a loan and not as a gift. Whoever asserts that it is a gift has the burden upon him to prove it.
    3. In a proceeding in which the transfer of a store from a father to a son was attacked, it was alleged by the son that his mother held a note of her husband for money loaned, and that when the transfer was made she accepted the note of the son for the full amount of the note of her husband, and canceled her husband’s indebtedness to herself. A friend of the family was permitted to testify as to conversations between husband and wife not as to whether the husband had received the money, that being admitted, but whether it was proper and necessary for him to give her a note as evidence of the debt. This was finally done at the suggestion of the witness. Held, that the declarations of the husband were not self-serving, were against his individual interest, and were properly admitted as bearing upon the consideration for the note to his wife.

      Argued May 5, 1909.
    Appeal, No. 226, April T., 1908, by defendant, from judgment of C. P. Somerset Co., Dec. T., 1898, No. 91, on verdict for plaintiff in case of S. A. Krider v. Albert S. Hartzell, Administrator of M. H. Hartzell, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass against the sheriff to recover for goods alleged to have been unlawfully sold. Before Gillan, P. J., specially presiding.
    The opinion of the Superior Court states the facts of the case.
    When the Rev. J. W. Hutchinson, a witness for the plaintiff, was on the stand, he was asked this question:
    “Q. Mr. Hutchinson, you are a Lutheran minister? A. Yes, sir. Q. Where do you live now? A. Milroy, Mifflin county. Q. You were located in Jennertown, this county, at one time? A. Yes, sir. Q. Do you know Rev. Samuel Krider? A. Yes, sir. Q. How long have you known him? A. Thirty-five or forty years. Q.-Do you know Mrs. Krider? A. I have known her since I was a little boy. Q. Were you present at any time when there was a conversation between Mr. and Mrs. Krider, relative to the indebtedness of Mr. Krider to his wife and the giving of a note?”
    Mr. Berkey: Objected to as incompetent, irrelevant and immaterial. The date has not been fixed. It may have been very remote, and certainly the offer is indefinite.
    Mr. Ruppel: We propose to prove by the witness on the stand that he was present at a number of conversations between Mr. and Mrs. Samuel Krider relative to the indebtedness of Samuel Krider to his wife; that Mrs. Krider frequently spoke of wanting a note from her husband, and that the witness advised that a note be given for the indebtedness of Krider to his wife; that these conversations extended over a period of probably twenty years, the last we think shortly before the $1,000 note was given at Hooversville.
    Mr. Berkey: This offer is objected to as incompetent, irrelevant and immaterial. The offer is indefinite.
    The Court: The question we are trying is the bona fides of the alleged sale made by Samuel Krider to his son. In order to establish that sale, it appearing that the alleged indebtedness which he owed to his wife was used in that transaction, it became necessary for the plaintiff to establish that the wife had a separate estate. It appearing that she received that money, much of it, at least fourteen or fifteen years before the alleged note was given by her husband to secure that indebtedness, and the question being one of fraud, it is competent for the plaintiff to show anything which may explain the delay in her taking the note from her husband. Therefore, the objection is overruled, the evidence is admitted and a bill is sealed for the defendant. [3]
    Mr. Ruppel: "Q. Mr. Hutchinson, you hear the question. Go on in your own way and state what you know in regard to this matter. A. With respect to the note? Q. Yes, the giving of the note. A. Having been acquainted with Mrs. Krider from my infancy, we were raised close together, we were very intimate in a social way, and she had spoken to me very frequently about her husband giving her a note for the money that she had given to him, as I well knew she had received the money from her parents, with whom I was acquainted — even her grandparents. I would say, 'Yes, I think that would be proper; that would be right.’ Time was passing along, so two or three months, or probably two or three years that would be up again, and she would refer to this. Well, I would repeat about the same, that I would think that would be proper; you didn’t know what might happen; it was her money, and I thought he ought to give her a note. This continued along for a period of years until shortly after I think Mr. Krider had gone into business at Hooversville, and Mrs. Krider appeared to be very anxious about having a note. I guess I laid a little more stress then on the importance of Mr. Krider giving a note than I had done previous to that, and finally learned that Mr. Krider had given his wife a note. Q. You say you knew her father? A. Yes, sir. Q. Do you know whether he left an estate? A. Yes, sir. Q. Have you personal knowledge as to about what the share of Mrs. Krider was in that estate? A. Not definitely. Just in a general way. I thought it was from $1,200 to $1,500.”

      Objected to.
    The Court: That is capable of direct proof.
    Mr. Ruppel: “Q. As I understand, you didn’t speak to Mr. Krider about this matter at all. A. Yes, sir, they were both together. Q. They were always together at these conversations ? A. Yes, sir, she would appeal to me to know if I didn’t think he ought to, and I saidl thought he ought to. I told Mr. Krider so.”
    Plaintiff presented this point:
    3. That the undisputed evidence in this case shows that S. Krider received over $1,000 of his wife’s money out of the estate of her father, Samuel Royer, and money coming to her from her aunt. That said Samuel Krider received said moneys of his wife as a loan, and although a note was not given by him to his wife for said sums until June 12, 1897, it constitutes a valid debt of Samuel Krider to his wife.
    If the said Samuel Krider received the moneys of his wife as a loan, and the presumption of the law is that it was a loan, he had a right to give her a note and prefer her to other creditors. [2]
    Verdict and judgment for plaintiff for $1,200. Defendant appealed.

      Errors assigned were (1) portion of charge, quoted in the opinion of the Superior Court; (2) answer to point as above; (3) ruling on evidence, quoting the bill of exceptions.

      J. A. Berhey, with him J. Huhl, Robert S. Murphy, Valentine Hay, A.L.G. Hay and C. L. Shaver, for appellant.
    The declarations of Mr. and Mrs. Krider to the witness, made at various times, covering a period of twenty years, as to moneys they alleged she received from her father’s estate and had given to Mr. Krider and that she wanted a note from him therefor, were not admissible in evidence: Light v. Light, 21 Pa. 407; Young v. Com., 28 Pa. 501; Black v. Nease, 37 Pa. 433; Parvin v. Capewell, 45 Pa. 89.

      W. H. Ruppel, with him W. H. Koontz and J. G. Ogle, for appellee.
    There was no denial that the husband had received this money from the wife, and the fact being established that the husband received the wife’s money, the presumption of law is that he received it as a loan, not as a gift: Bergey’s App., 60 Pa. 408; Young’s Est., 65 Pa. 101; Hamill’s App., 88 Pa. 363; Wormley’s Est., 137 Pa. 101; Martin’s Est., 181 Pa. 378; Hawley v. Griffith, 187 Pa. 306.
    These declarations bear intrinsic evidence of the fact that they were not prepared for the occasion, were not intended as makeweight declarations, nor of being for self-serving purposes, and under the rulings of the courts were clearly properly admitted in evidence: Nichols v. Nichols, 133 Pa. 438; Light v. Zeller, 144 Pa. 570; Cornman’s Est., 197 Pa. 125; Laughlin v. Laughlin, 219 Pa. 629; Sheesley’s Est., 10 Dauph. 258; Kotz’s Est., 11 North. 316.
    July 14, 1909:
   Opinion by

Beaver, J.,

The action here is trespass against the sheriff of the county, the personal representative of whom was substituted after his death, for damages for the sale of a stock of goods contained in a storeroom at Windber, claimed by the plaintiff as having been sold to him, prior to the sheriff’s levy, by his father. Upon the trial the principal issue of fact was as to notice given by the plaintiff to the public and to the plaintiffs in the writ, issued upon a judgment against the father, upon which the store was sold, as to the sale by the father to the son and as to the steps taken by the son to signify a change of possession. This question was submitted to the jury, but as to the manner of its submission we have no exception, save as to a single item of evidence offered by the appellant concerning which the court remarks in the charge to the jury.

The first assignment of error deals with this subject and is as follows: “There is one piece of evidence that seems to me important. I do not know how it will strike you, gentlemen. It is for you. It was argued on part of the defendant that this transaction was fraudulent, and that there was an effort to get away from these creditors, Love, Sunshine & Company, by Samuel A. Krider, the son, advertising the property to be sold at public auction. The effort to sell was proved by them and they presented to you a sale bill, showing an advertisement. I know of no better way for my part to have carried the news to the world that S. A. Krider owned the store formerly owned by his father, than to have put up bills like that over the county, advertising it for sale. That would be to my mind evidence of the change of possession, because it was publishing to the world by public handbill that the property was the property of S. A. Krider, that he was the proprietor, that it had been sold, and that, as I understand it, before the execution was issued. I think I am right about that.”

It clearly appears from the testimony of the plaintiffs in the execution upon which the property was sold that, upon the evening of the levy, a handbill was in the window of the store providing for a sale at auction on that evening of the goods therein, and that it was of a date prior to the date of the levy. One of the members of the firm, by whom the execution upon which the sale was made was issued, took this handbill down at the time of the sheriff’s sale, and it was offered in evidence by the defendant. It is not printed, however, with the testimony, and we are entirely at a loss to determine what the character of it was, except as it is described in the most general way by the witness who took it down, and referred to by the court. That it was evidence bearing directly upon the question of the effort of the son to make public the notice of the purchase by him from his father of the goods to be sold cannot be doubted. It was introduced by the appellant. The court distinctly says that the effect of this evidence was for the jury. The judge who tried the case deemed it important, as it certainly was, and says: “I know of no better way for my part to have carried the news to the world that S. A. Krider owned the store formerly owned by his father than to have put up bills like that over the county, advertising it for sale.” We find no distinct evidence that bills similar to the one offered in evidence were put up over the county. Indeed, we discover none as to any other bill than the one introduced by the appellant. It is to be observed, however, that the court did not state as a fact that other bills were put up over the county. If the bill printed, offered in evidence, was in appellant’s paper-book, it might give us some intimation as to whether or not it was a general handbill and was such as would, under ordinary circumstances, be posted in different places. The appellant having failed to inform us as to the character of the handbill by printing it with the testimony, we are at a loss to determine its character, and hence its importance on the question of notice of the sale and probable effect upon that question upon the general public. It appears very clearly from the testimony that this bill was posted in the store window and that it was visible to passers-by. It was, therefore, a public notice, and, in the absence of the bill itself, we assume that the remarks of the court in regard to its character were entirely proper. As to the time of its publication, the court was undoubtedly right that it was before the execution was issued. There is no distinct statement by the court that handbills similar to the one in the store window were put up elsewhere, but the court says: “I know of no better way for my part to have carried the news to the world than to have put up bills like that over the county, advertising it for sale.” In view of the fact that this statement was coupled with the caution that the question was one for the jury and that the defendant did not call the attention of the court to it at the time in any way as a misstatement of fact, we are led to the conclusion that the appellant has no good ground of complaint. Giving to the statement the most that can be claimed for it, it was a slip on the part of the court to which its attention should have been called at the time by the appellant, if it was regarded as important.

The second assignment of error relates to the answer of the court to the plaintiff’s third point, the point and answer being as follows: “Third. That the undisputed evidence in this case shows that S. Krider received over $1,000 of his wife’s money out of the estate of her father, Samuel Royer, and the money coming to her from her aunt. That said Samuel Krider received said moneys of his wife as a loan, and although a note was not given by him to his wife for said sums until June 12, 1897, it constituted a valid debt of Samuel Krider to his wife. Answer: if the said Samuel Krider received the money of his wife as a loan, and the presumption of the law is that it was a loan, he had a right to give her a note and prefer her to other creditors.” The question of fact here was left to the jury — Did Krider receive the money of his wife as a loan? The question of law involved is correctly stated, that “The presumption of the law is that it was a loan,” and, if so, “he had a right to give her a note and prefer her to other creditors.” It is scarcely necessary to cite authorities for propositions of law so well settled and. frequently held.

In Hawley, Trustee, v. Griffith, 187 Pa. 306, under facts similar to those involved in this case, it is said, quoting from Wormley’s Estate, 137 Pa. 101: “‘The rule of law applicable in such a case is that the mere fact of the reception of the wife’s money by her husband makes him her debtor, and it requires no affirmative proof by the wife that he received it as a loan and not as a gift. On the contrary, if it is alleged afterwards, whether by the husband’s heirs or by his creditors, that the money was received as a gift and not as a loan, the burden is upon those who make such allegation to prove it.’ Many cases sustaining this proposition are cited by the learned justice and there is no room for controversy on this point.” A careful reading of the testimony in this case fails to discover any evidence whatever on the part of the appellant that the money received by the wife of Samuel Krider and the mother of S. A. Krider from the respective estates of her deceased relatives was a gift to her husband.

The third assignment of error relates to the testimony offered by the plaintiff to show that the husband was indebted to the wife, being that of a neighbor who had knowledge of the fact that the wife had a separate estate and who had been consulted on various occasions by husband and wife as to the propriety of the former giving the latter a note for the amount which he had received from her from the estates of her father and aunt respectively. The allegation was that, in the transfer of the store from the father to the son, the mother had accepted the note of the son for the full amount of note of her husband, and interest thereon from its date, held by her, had canceled the indebtedness of her husband to her and held the note of the son in payment therefor. It became necessary, therefore, to establish the consideration for the note of the husband to the wife. A friend of the family, therefore, was called who knew of the estate of the wife’s father, of the probable amount of it, and who had been consulted frequently as to the propriety of the husband giving a note to his wife for the amount which he had received from her at sundry times. This testimony was objected to, and its reception constitutes the third assignment of error. The validity of the note of the husband -to the wife was not the issue being tried. It was merely an incident in the trial, bearing upon the consideration which moved between the son, as the purchaser of the father’s store, and the father, and bore upon the bona tides of the transaction. The conversation, therefore, which the witness had with the husband and wife in several instances, prior to any indebtedness on the part of the husband to other parties and before he engaged in the mercantile business, was not in the nature of self-serving declarations, usually so called. The testimony shows that the conversations were not as to whether or not the husband had received the wife’s money, that being admitted, but whether it was proper and necessary for him to give her a note as evidence of the debt. This was finally done, at the suggestion of the witness who was called to testify in regard to the matter. This testimony was, as we regard it, entirely proper.

In Laughlin v. Laughlin, 219 Pa. 629, in a case in which the wife filed a bill in equity against the administrator of her husband to enforce an alleged trust in the purchase of certain stocks, in which a creditor of the husband intervened as defendant, the testimony of the witness, to whom the husband had related the facts connected with the purchase of the stocks, was admitted, for the purpose of establishing the trust. In that case as here the declarations of the husband were against his individual interest, and many of them being made at a time when no other parties had any contravening interest, we do not see wherein the testimony was open to valid objection.

The assignments of error are all overruled.

Judgment affirmed.


author: Rice, P. J.,

text:
    Holland v. Hayes, Appellant.

      Deed — Plan of lots — Marks on ground — Damages—Arbitration—Adverse possession — Findings of fact.

    1. Where a map or plan is referred to in a deed, it becomes a material and essential part of the conveyance, and is to have the same force and effect as if copied into the deed. If there are no marks on the ground indicating the actual work of the surveyor in laying out the lots indicated on the plan, the location of them as the plan requires, will be considered the true location.
    2. Where in an action of ejectment the parties agree that the land in dispute was derived by purchase from a common source, the question of adverse possession does not arise.
    3. Where facts found by a referee are mere deductions from undisputed testimony or from other facts found from the testimony, they are given no greater weight than the referee's findings of law.
    4. If parties from misapprehension, adjust their fences and exercise acts of ownership in conformity with a line which turns out not to be the true boundary, this will not amount to an agreement or be binding as the assent of the parties.
    5. Where an owner of land sells a lot according to a map or plan and three years thereafter the surveyor of the grantor, without the knowledge of, or the presence of, or at the instance of the grantee, drives iron pins into the ground as indicating boundary lines, the action of the surveyor will not govern the boundary as against the map or the plan.
    Argued March 3, 1909.
    Appeal, No. 1, March T., 1909, by defendant, from order of C. P. Lackawanna Co., Jan. T., 1902, No. 338, dismissing exceptions to report of referee in case of Mary Jane Holland and Joseph Holland v. Mary Hayes.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Exceptions to report of referee, William W. Lathrope, Esq.
    The facts are stated in the opinion of the Superior Court.
    The plaintiffs filed the following exceptions to the report' of the referee:
    5. The learned referee erred in his eleventh finding of fact, which is as follows:

      “The northeasterly line of said lot No. 4, block No. 98, is properly located on the line of the southwest wall of the present foundation of defendant’s barn.”
    The Court: The exceptions to the report of the referee are overruled and we direct judgment to be entered in accordance with the recommendation of the referee. [5]
    6. The learned referee erred in part of his answer to the plaintiffs’ fourth request for finding of fact, which portion of said answer is as follows:
    “The southwest wall of the defendant’s barn and the part of the old fence left standing until 1901 constitute in my view the division line as substantially recognized by both parties until 1901.” [6]
    31. Request: The disconnected portion of the fence erected and maintained by the defendant for her own convenience on her own land from near the rear of her front house to near the rear of her barn, cannot in any sense form a consentable line to define the boundary between her lot and the lot of the plaintiffs. Answer: If the fact assumed in this proposition were true and there were no other material facts in the case, the proposition would be correct, but in my opinion the defendant by her acts and declarations made this fence and the southwesterly wall of her barn a consentable line between her lot and the lot of the plaintiffs.
    Exception: The referee erred in refusing to affirm defendant’s eighth proposition for conclusion of law. [9]
    28. Request: The fact that Joel Amsden at the instance of the plaintiff may have driven iron pins in the ground on or near the lot lines of the plaintiffs’ possession in block 98 in the year 1867 (about three years after the Lackawanna Iron and Coal Company had by contracts sold to the plaintiff’s lot No. 4 and to Catharine Roland, one of the defendant’s predecessors in title, lot No. 3 in said block) cannot affect the right of the defendant to claim and retain possession of the whole of said lot No. 3 as owner thereof up to the true division line between said lots 3 and 4 and according to the Lackawanna Iron and Coal Company’s plot of Scranton, especially in view of the fact that the evidence fails to show that Catharine Roland, William McCoy, or the defendant had any knowledge or information of the existence or location of said pins.
    Ruling of the referee: This is affirmed, with this qualification, to wit, that the location of said line between said lots 3 and 4 by Joel Amsden, the surveyor of the Lackawanna Iron and Coal Company, must govern rather than the plot of the said company.
    Exception: The referee erred in his qualification affirming the defendant’s fourth proposition for conclusion of law, which qualification is as follows: ,
    “The location of said line between said lots 3 and 4 by Joel Amsden, the surveyor of the Lackawanna Iron and Coal Company, must govern rather than the plot of said company.” [10]

      Errors assigned were in overruling fifth, sixth, twenty-eighth and thirty-first exceptions.

      H. A. Knapp, with him C. C. Donovan and C. B. Little, for appellant.

      Samuel B. Price, for appellees.
    July 14, 1909:
   Opinion by

Rice, P. J.,

This action of ejectment was for a strip of land two and one-half feet wide and about 135 feet deep. As shown by the writ, the dispute is over the division line between lots No. 3 and No. 4 in block 98 of the Lackawanna Iron and Coal Company’s plot of the city of Scranton. The paper titles under which the parties respectively claim were derived from the Lackawanna Iron and Coal Company in 1864, and in their inception the plaintiffs’ lot was described, in part, as lot No. 4 in block No. 98 of the Lackawanna Iron and Coal Company’s plot of lots, and the defendant’s lot as lot No. 3 in the same block of the same plot. Where a map or plan is thus referred to, it becomes a material and essential part of the conveyance, and is to have the same force and effect as if copied into the deed: Commonwealth v. McDonald, 16 S. & R. 390; Birmingham v. Anderson, 48 Pa. 253; McCall v. Davis, 56 Pa. 431; Davis v. Sabita, 63 Pa. 90; Robinson v. Myers, 67 Pa. 9; Trutt v. Spotts, 87 Pa. 339; Schenley v. Pittsburg, 104 Pa. 472; Higgins v. Sharon Boro., 5 Pa. Superior Ct. 92. See also Shattuck v. Cunningham, 166 Pa. 368, and cases cited by the referee on pp. 376-377. In the absence of evidence of marks on the ground, at the time Michael Holland and defendant’s predecessor bought, indicating the actual work of the surveyor in laying out the lots, the location of them as the plot requires would be the true location. And unless something has occurred since to change the original division line as thus ascertained, or to estop the defendant from claiming up to it, it must control the present controversy.

Early in the trial it was agreed by the parties that the only title which either party has or claims to the land in dispute has been derived by purchase from a common source, to wit: from the Lackawanna Iron and Coal Company, which company was seized in fee simple of said land May 2, 1864. The learned referee properly held that under this agreement the question of title by adverse possession does not arise. It is further to be noticed that a claim of title by adverse possession, if it was ever the intention of the plaintiffs to make it, would not be supported by the findings of fact or the evidence.

We need not take up time in discussing the question of estoppel by acquiescence in a wrong boundary line. The learned referee properly held in answer to a point put by the defendant that this question did not arise under the evidence.

The next question to be considered arises out of the eleventh finding of fact which reads: “The northeasterly line of said lot No. 4 block 98 is properly located on the line of the southwest wall of the present foundation of defendant’s barn.” This finding is in accordance with the plaintiffs’ contention, and if correct sustains the judgment in their favor. In general, the findings of fact of a referee appointed under the local act of 1869 or the general acts of 1874 and 1889, based on his belief as to the credibility of the witnesses and the weight to be given to their testimony has the same conclusiveness as a verdict of a jury, and will not be disturbed except for manifest error. Especially is this true in the appellate court where the findings have been approved by the common pleas. But, as pointed out in Grauel v. Wolfe, 185 Pa. 83, “when the facts found are mere deductions from undisputed testimony, or from other facts found from the testimony, they are given no greater weight than his findings of law.” This rule is plainly applicable to the present case. Further on in his report will be found the reasons which, we are warranted in inferring, led the referee to the conclusion that the line is properly located on the line of the southwest wall of the present foundation of the defendant's barn. As appears by the ninth assignment of error the defendant requested a finding that the disconnected portion of the fence erected and maintained by the defendant for her own convenience on her own land from near the rear of her front house to near the rear of her barn could not in any sense form a consentable line to define the boundary between her lot and the lot of the plaintiffs. To this the learned referee answered as follows: “If the fact assumed in this proposition were true and there were no other material facts in the case, the proposition would be correct, but in my opinion the defendant by her acts and declarations made this fence and the southwesterly wall of her barn a consentable line between her lot and the lot of the plaintiffs.” Turning now to the facts upon which this conclusion as to a consentable line is rested, we find them stated as follows in the referee's sixth finding; “When Michael Holland bought said lot number four (4) there was a fence between his lot and said lot number three (3) then owned and occupied by Catharine Roland. Lot number four (4) had been occupied by one Casey, apparently a tenant or squatter. Holland desiring to build a new house, the Lackawanna Iron and Coal Company sent Joel Amsden, their surveyor, to locate his lines. Amsden put a pin down on the northeasterly and southwesterly sides of his lot. This was done in 1867. The pin on the northeasterly side seems to have been put down on the line of said fence. And some time (the evidence does not show when) a barn was built on the rear of lot number three (3), and the southwest side of the barn seems to have been built on the line of this fence. The roof boards of the barn projected about two and one-half (2J) feet over on the land claimed by the plaintiffs. About 1899, the defendant, then the owner of lot number three (3), had a foundation wall built under said barn. The workmen found an iron peg under the barn. The defendant said that must be right, and under her directions, the southwest side of the foundation wall was built on a line with said peg. The old fence ran from the westerly corner of said barn toward the front. Portions of it were rebuilt from time to time in the same location. As repaired and rebuilt, it stood on the same line until it was torn down by the defendant early in 1901. According to the possession taken and held by Holland until the time said fence was torn down, he had a width of forty (40) feet and possibly a few inches more, and according to the possession taken and held by the defendant she also had a width of forty (40) feet.” In connection with this there should be had in view the finding that there was a mixed possession, the eaves of the defendant’s barn extending over onto the lot in dispute, and the defendant and her tenant using part of it as a dumping ground for coal. We do not question the correctness of the foregoing findings of fact, but we are unable to assent to their sufficiency to warrant the deductions drawn from them. What the defendant said was to her own workmen, and although it was admissible in evidence it did not, either of itself or in connection with her acts, create an estoppel, nor amount to the establishment of a consentable line. If parties, from misapprehension, adjust their fences, and exercise acts of ownership in conformity with a line which turns out not to be the true boundary, this will not amount to an agreement, or be binding as the assent of the parties: Perkins v. Gay, 3 S. & R. 327. In the same case Chief Justice Gibson said of a consentable line: “The establishment of this kind of boundary is always a matter of compromise, in which each party supposes he gives up for the sake of peace something to which in strict justice he is entitled. There is an express mutual abandonment of their former rights, upon an agreement, that whether they be good or whether they be bad, nei'ther’is to recur to them on any pretense whatever, or claim anything that he does not derive from the terms of the agreement. Each takes his chance of obtaining an equivalent for everything he relinquishes, and if the event turn out contrary to his expectations, so much the worse for him. If there be no intention of fraud, no unfair dealing, and neither party has more knowledge of the fact misconceived, than the other had, the contract will bind.” In Hagey v. Detweiler, 35 Pa. 409, Woodward, J., speaking of the same subject said: “But, I repeat, the parties to a consentable line intend no conveyance by surrender or otherwise. For the sake of peace and good neighborhood, they agree that a doubtful • fact shall be ascertained and indicated in a particular manner; and the practice of this court has been to encourage such compromises.” In Culver v. Hazlett, 13 Pa. Superior Ct. 323, our Brother Beaver speaking of the term consentable line said: “This is a technical term, the basis of which is a dispute between adjoining owners and the compromise of such dispute by a line agreed upon between them.” We fail to find either of these essentials in the findings of fact or in the evidence.

It appears further that the learned referee was influenced to the conclusion that the line is properly located on the line of the southwest wall of the defendant's barn by the weight and significance which he accorded to the action of Joel .Amsden. This is brought out by the defendant's fourth proposition of law and the referee's answer thereto, which we quote: “The fact that Joel Amsden at the instance of the plaintiff, may have driven iron pins in the ground on or near the lot lines of the plaintiff's possession in block 98, in the year 1867 (about three years after the Lackawanna Iron and Coal Company had by contracts sold to the plaintiff lot No. 4 and to Catharine Roland, one of the defendant's predecessors in title, lot No. 3 in said block) cannot affect the right of the defendant to claim and retain possession of the whole of said lot No. 3 as owner thereof, up to the true division lines between said lots 3 and 4, according to the Lackawanna Iron and Coal Company’s plot of Scranton, especially in view of the fact that the evidence fails to show that Catharine Roland, William McCoy or the defendant had any knowledge or information of the existence or location of said pins. Answer: This is affirmed with this qualification, to wit: that the location of thfe said line between said lots 3 and 4 by Joel Amsden, the surveyor of the Lackawanna Iron and Coal Company must govern rather than the plot of the said company.” When it is remembered that this action of Amsden was three years after the title of the defendant’s predecessor had vested, and is not shown to have been taken at her instance or even in her presence or with her knowledge, we fail to see why the line indicated by the pins he set should govern rather than the plot. Certainly not because the Lackawanna Iron and Coal Company’s engineer had any authority to locate the line, or to establish a new one which any competent engineer did not have. Instead of the line indicated by the pins set by Amsden governing, we are clearly of opinion the location of the lots according to the plot governed at the time the title to the whole of lot No. 3 vested in the defendant’s predecessor and still governs. If, as the defendant claims and as the referee admits the evidence of the surveyors called by her tends to show, the location of the true division line between lots 3 and 4 in block 98 according to the Lackawanna Iron and Coal Company’s plot is 160 feet southwest from the center line of Hemlock street and parallel thereto, then the plaintiffs were not entitled to recover. The true inquiry should be, where was the division line between the two lots at the time the parties bought in 1864? That question being determined, the result cannot be altered upon the assumption that a consentable line was subsequently established by the parties or that the action of Mr. Amsden established a new line by which the parties were bound, or that his action governs in the determination of the location of the original line, rather than the plot.

It has been frequently said that the location of a disputed boundary line is a question of fact for the jury. Grant it, yet if the court instructs the jury erroneously as to the method of reaching a conclusion as to the fact this is reversible error. So if a referee, who exercises the dual functions of court and jury, proceeds on a wrong theory in reaching the result, his finding cannot be regarded as conclusive. The report of the learned referee in this case is characterized by painstaking care and eminent fairness, but we are constrained to the conelusion that he proceeded upon an erroneous conception of the controlling effect of certain facts. There is no distinct finding as to the true location of the division line in 1864, independently of the supposed establishment of a consentable line and of the controlling effect accorded to action of Mr. Amsden; therefore the case should be remitted to the learned referee, as the act of 1871 directs where justice requires it, to report distinctly upon that controlling question of fact.

The 5th, 6th, 9th and 10th assignments of error are sustained, the judgment is reversed and the record is remitted to the court below with direction to commit the report to the referee for the purpose indicated in the foregoing opinion.


author: Head, J.,

text:
    Palmer v. Central Board of Education of the City of Pittsburg.
    (No. 1.)

      Equity — Contempt—Injunction—Parties—Discretion of, court.

    1. Where an injunction has been issued against a board of education, a corporation, a sole defendant in an equity suit, and a majority of such board with full knowledge of the decree vote to disobey it, each member of such majority may be punished for contempt, and they cannot urge against an order of contempt that the courts could not interfere with their quasi judicial discretion as public officers, so long as the injunction order had not been rescinded or modified.
    2. An appellate court does not review an order of contempt on its merits. ■ Every fact found by the lower court on a proceeding for contempt is to be taken as true, if it appears that the court proceeded within and did not exceed its jurisdiction; but for the purpose of seeing its jurisdiction has not been transcended, and that its proceedings, as they appear of record, have been according to law, the appellate court possesses, and is bound to exercise, supervisory power.
    Argued April 16, 1909.
    Appeal, No. 90, April T., 1909, by S. C. Jamison et al., members of the Central Board of Education of the City of Pittsburg, from decree of C. P. No. 4, Allegheny Co., No. 649, Third Term, 1907, in proceedings for contempt in case of George C. Palmer et al., trading as Palmer & Hornbostel, and Emlyn Stewardson et al., trading as Cope & Stewardson, and Cass Gilbert v. The Central Board of Education of the City of Pittsburg.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Petition for an attachment for contempt.
    Swearingen, P. J., found the facts to be as follows:
    1. As heretofore found in the record of the above-stated case nine designs had been submitted for the competition in accordance with the method adopted by the Central Board of Education at its meeting May 8, 1906. Of these, the design of Rutan & Russell, No. 9, had been recommended for adoption in accordance with said programme of competition, and on December 11, 1906, the Central Board of Education refused to adopt the report of the building committee. A motion was made to reconsider said vote, which motion was laid upon the table. Nothing further was done with that competition.
    On June 4,' 1907, the new building committee reported to the central board that it had selected F. J. Osterling as the architect and recommended his design. This report at that time failed for want of a majority. In making choice of F. J. Osterling as architect the building committee and the board abandoned the plan of competition which had theretofore been adopted, and were proceeding under another and different method altogether.
    Thereupon the bill in this case was filed, in which the plaintiffs prayed for an injunction to restrain the Central Board of Education from choosing an architect otherwise than by the plan of competition formerly provided. The case proceeded to final hearing and the decree was entered January 2,1908, in which the injunction prayed for was granted. From this decree an appeal was taken to the Supreme Court of Pennsylvania and on April 30, 1908, a remitittur from the Supreme Court was filed showing that the decree of the lower court had been affirmed and the appeal dismissed.
    The respondents, to wit: S. C. Jamison, President; Bart Fleming, M. G. Hayes, Evan Jones, P. B. Kearns, Edward Kenna, E. J. Kirby, R. P. Lougeay, T. E. Metcalf, W. S. Mc-Cutcheon, Wm. B. McHugh, J. M. Patton, Peter J. Pfaadt, Dr. J. W. Phillips, Dr. J. P. Saling, Eugene Schwartzwaelder, P. F. Toole, J. P. Woods, W. PI. Ziefel, Frederick Bruckman, P. Fitzgerald, F. V. Martin and John' L. Freker, expressly admit in their answer that “they have had full notice of the decree of your honorable court and the affirmation of that decree by the Supreme Court of Pennsylvania.”
    2. On May 12, 1908, the special committee of the Central Board of Education, which had been appointed to select plans and an architect for a new high school building, met. The following members were present: Messrs. Foley, Jamison, Jones, Kirby, McHugh, Phillips, Reinecke and Saling. It was resolved to report to the central board that disposition be made of the design presented by Rutan & Russell. A motion to hear an explanation of the designs from Prof. Warren P. Laird, the advisor, was lost.
    On May 14, 1908, the Central Board of Education met, and finally rejected the designs submitted by Rutan & Russell, which had been recommended to the board on December 11, 1906.
    On May 21, 1908, the said building committee again met, with Dr. J. P. Saling in the chair. The following members were present: Messrs. Easton, Foley, Jones, Kirby, Phillips, Reinecke and Saling. The committee took up the design No, 7. The envelope was opened and it was found that Cass Gilbert was the author of design No. 7 and thereupon the committee unanimously adopted a report to the central board that the design next in merit was that of Mr. Cass Gilbert, which was submitted for the approval of the board, and recommended his. election as architect. This meeting of the building committee was in session about two hours.
    On May 22, this report was submitted to the central board and by a vote of ten ayes to twenty-six nays the report was not adopted. Of the members of the building committee who had recommended the adoption of the design of Cass Gilbert and the choice of him as architect, Jones, Kirby, McHugh, Phillips and Saling voted in the negative when the report came before the board.
    A motion was then made that a recess of twenty minutes be taken and that the committee meet and make another recommendation. Thereupon the building committee again met with Messrs. Easton, Foley, Jones, Jamison, Kirby, McHugh, Phillips and Saling present. A motion was made and agreed to take up the design next in order of merit. None of the remaining designs were even present before the committee. A protest was made by Mr. Easton and Mr. Foley against proceeding having the designs, to which no attention was paid. Thereupon design No. 2 was taken up and the same report was recommended to the board as had been made upon the design submitted by Cass Gilbert, except that the name of Cass Gilbert was stricken out and the name of Edward Stotz, who was found to be the author of No. 2, was substituted.
    Forthwith that report was made to the central board, which had reconvened after an intermission of twenty minutes, and the design of Edward Stotz was not adopted, a majority of the members of the building committee again voting in the negative.
    Again a suggestion was made by Mr. Foley that Prof. Warren P. Laird be requested to attend to aid the committee in conducting the competition, which was declared out of order, and the board again adjourned for fifteen minutes that the committee might select another plan.
    The committee then did meet and took up another design and made the same report as it had made in the previous cases, substituting the name of another architect in place of the names of those previously rejected. The central board reconvened at the end of the recess of fifteen minutes and rejected that report. In like manner the board and the committee disposed of the designs of all the remaining architects, the committee meeting during the intermissions which at first were for twenty minutes, afterwards for fifteen minutes and once for ten minutes, by substantially the same vote. Occasionally the votes differed, but the respondents were always found voting in the negative.
    4. Professor Warren P. Laird who had been selected as the professional adviser of the committee was not present at any of these meetings of either the central board or the building committee from May 12 to May 22, both inclusive. His presence was requested on several occasions, both in committee and in the central board, but the request was always' refused by the majority of the committee and of the board.
    The said general board met on the evening of May 8, 1908, at about 8 o’clock p. m. and finally adjourned at about 10:45 o’clock p. m. During that period of about two hours and forty-five minutes, six designs were disposed of by the building committee and seven by the board itself. The evidence does not show that any consideration was given to any of these designs other than that of the most perfunctory kind. They were each in turn taken up by the building committee and reported to the board with a recommendation of adoption as quickly as possible, and each in turn was rejected by the board in a like perfunctory manner, and all the members of the building committee which recommended each of these designs, except Easton, Foley and Reinecke, voted for their rejection when the designs came before the board.
    5. On May 26, 1908, the Central Board of Education again met and took up the plans of J. F. Osterling, whose consideration had been suspended by the filing of the bill in this case June 11, 1907. By the following vote said plans were adopted and Mr. Osterling elected architect, viz.:
    Ayes: S. C. Jamison, Bart Fleming, M. G. Hayes, Evan Jones, P. B. Kearns, Edward Kenna, E. J. Kirby, R. P. Lougeay, T. E. Metcalf, W. S. McCutcheon, Wm. B. McHugh, J. M. Patton, Peter J. Pfaadt, Dr. J. W. Phillips, Dr. J. P. Saling, Eugene Schwartzwaelder, P. F. Toole, J. P. Woods, W. H. Ziefel, Frederick Bruckman, P. Fitzgerald, F. V. Martin and John L. Freker.
    Nays: Beatty, Force, Gillespie, Glazier, Johnson, McPherson, Neely, Reif, Shaw, Easton and Shooke.
    Not voting: Mr. Stauffer.
    The court entered a decree fining each of the members of the board who voted in disobedience of the injunction order in the sum of $100.

      Error assigned was the decree of the court.

      John S. Ferguson, with him W. J. Bremen and Burleigh, Grey & Challener, for appellants.
    The statute concerning con-tempts is a penal statute and must be strictly construed in favor of those accused of violating its prohibitions: Maxwell v. Rives, 11 Nev. 213; Rutherford v. Holmes, 66 N. Y. 368.
    In determining whether or not it would select one of the competing architects, or reject all of them, the central board was performing a legislative act. It was the appointee of the legislature of the state of Pennsylvania for the exercise of just such a legislative act: Judges v. People, 18 Wend. (N. Y.) 79; N. Y. & H. R. R. Co. v. New York, 1 Hilton, 562; Dechert v. Com., 113 Pa. 272; Roth v. Marshall, 158 Pa. 272; Baker v. Boston, 29 Mass. 184.
    To sustain this conviction would practically control the discretionary power vested in the central board, in the selection of an architect: Com. v. Mitchell, 82 Pa. 343; Runkle v. Com., 97 Pa. 328; American Pavement Co. v. Wagner, 139 Pa. 623.

      Thos, Patterson, of Patterson, Sterrett & Acheson, for appellees.
    While an injunction lives, the most exact and implicit obedience is required. It cannot be violated with impunity. Disobedience to it is a contempt. Upon proceedings for contempt in this class of cases, the only legitimate inquiry is as to the jurisdiction of the court, as to the parties and subject-matter, and whether the decree was made and has been obeyed: Rodgers v. Pitt, 89 Fed. Repr. 424; People v. Bergen, 53 N. Y. 404; Russell v. Ry. Co., 3 MacN. & G. 104.
    July 14, 1909:
   Opinion by

Head, J.,

To reverse the order, adjudging the appellants in this case guilty of a contemptuous refusal to obey a final decree of a court of equity, we must reach the conclusion, (a) that the court had no power to attach and punish them, even if it was right in finding, as a fact, that there was such refusal to obey; or (b) that the court committed reversible error in finding the fact of such contempt on the evidence before it.

With the facts that led up to the entry of the final decree we have now but little concern. They are fully stated in the findings of the learned court and in the opinion of Mr. Justice Stewart, in Palmer v. Central Board of Education, 220 Pa. 568, where the decree was affirmed.

The obligation of everyone, properly affected with notice of such decree, to honestly and in good faith obey it in letter and spirit, has been so frequently and emphatically declared in the numerous cases, cited in the briefs on both sides, that its existence may be here assumed without discussion.

The first reason advanced to support the denial of the power of the court in the premises, rests on the allegation that these appellants were not parties to the bill in which the decree was entered and therefore cannot be attached for refusing to obey it.

The defendant named in the bill was the Central Board of Education of the city of Pittsburg, a corporation. Against that board the injunctive decree issued. The present appellants constitute a majority of the members of that board. The will of such a majority, properly expressed, is the will of the corporation. The corporate acts are but the public manifestations of that will. The corporate act, here alleged to be contemptuous, had its birth in the votes of these appellants. Each one of them had full notice of the decree. If there was any contempt of that decree, they not only aided and abetted it, they actually compelled it. Following the line of reasoning more fully developed in Patterson v. Wyoming Valley District Council, 31 Pa. Superior Ct. 112, we dismiss this contention as being without merit.

It is further urged upon us that the defendants, being elective municipal officers of the city of Pittsburg, were invested with a quasi judicial discretion in the performance of their official duties, and that the exercise of such discretion may not be coerced by the courts, so as to accomplish a particular result. If the soundness of the general proposition be conceded, it is wholly beside the mark. The question whether or not the decree was rightfully entered is no longer an open one. Until rescinded or modified by the power that entered it, obedience to it by everyone, individual or official, affected by it, is the paramount duty.

But it is manifest that the decree entered in no way infringed upon the discretionary powers of the appellants. No court would have undertaken to have coerced the board to have adopted the resolution of May 8 or to have assumed the contractual relations towards the competing architects that resulted therefrom. The making of that contract and the creation of its consequent obligations were the voluntary acts of the board, in the exercise of the discretion with which its members were legally invested. But after the contract was thus made and its fruits had been gathered, it no longer remained a matter to be determined by the discretion of the board or its members whether the rights of the other parties to that contract should be accorded or withheld.

We are now to consider whether the record discloses any error on the part of the court in finding, from the evidence, that its decree had been disobeyed or in imposing the sentence appealed from. The right of a court to finally ascertain for itself the existence of a contempt which it has the inherent right to punish has been clearly and strongly stated by the Supreme Court of the United States in In re Debs, 158 U. S. 564. In the course of his exposition of the law on that subject Mr. Justice Brewer says: “ In order that a court may compel obedience to its orders, it must have the right to inquire whether there has been any disobedience thereof. To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency.” Other cases wherein the same doctrine is declared are cited in Patterson v. Wyoming Valley District Council, 31 Pa. Superior Ct. 112.

As applied by our own Supreme Court, this principle is not to be understood to warrant the conclusion that our appellate courts have no revisory power in cases of attachment for contempt; but that the limits within which it is to be exercised are narrow and well defined. In Com. v. Newton, 1 Grant’s Cases, 453, Woodward, J., speaking for that court, said: “We do not indeed revise such cases on their merits. The courts, having a limited jurisdiction in contempts, every fact found by them is to be taken as true, if it appears to us that they proceeded within and did not exceed their jurisdiction; but for the purpose of seeing that their jurisdiction has not been transcended, and that their proceedings, as they appear of record have been according to law, we possess, and are bound to exercise supervisory power over the courts of the commonwealth.”

We have already endeavored to show that the court below, in attaching the appellants, proceeded within and did not exceed its jurisdiction. It is not alleged that the proceedings, as they appear of record, were not formal, regular and according to law. The learned court, in its opinion, states in detail the history of what transpired, the exact things done by the appellants and the manner in which they were done. From these he draws this conclusion: “All of this shows that the plain purpose of the majority of the Central Board, these respondents, was to get rid of the competition as rapidly as possible. It all indicates a purpose to evade, rather than obey the decree of the court.” When we say this conclusion has, in our judgment, ample evidence to support it we say all that is needful to sustain the order appealed from, without expressing our own views of the conduct of appellants as portrayed in the evidence.

Order affirmed and appeal dismissed at the costs of appellants.


text:
    Palmer v. Central Board of Education of The City of Pittsburg
    (No. 2).
    Argued April 16, 1909.
    Appeals, Nos. 91-112, by Bart Fleming et al., members of the Central Board of Education of the City of Pittsburg, from decree of C. P. No. 4, Allegheny Co., No. 694, Third Term, 1907, in proceedings for contempt in case of George C. Palmer et al., trading as Palmer & Hornbostel, and Emlyn Stewardson et al., trading as Cope & Stewardson, and Cass Gilbert v. The Central Board of Education of the City of Pittsburg.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    July 14, 1909:
   Opinion by

Head, J.,

For the reason given in the opinion filed in the appeal of S. C. Jamison, ante, p. 203, these appeals are dismissed at the costs of the appellant.