text:
    Weedon v. Weedon, Appellant.

      Divorce — Adultery—Bill of particulars — -Erroneous charge.

    Where a bill of particulars in divorce charges the respondent, the husband, with having committed adultery on three several dates, and there is evidence only of an act committed on one of the dates, and such evidence is meager, it is reversible error for the court to charge the jury that they could find a verdict for plaintiff if they found that the offense charged was committed on the day mentioned by the witness, “or at any other time.”
    A bill of particulars is an amplification or more particular specification of the matters set forth in the pleading. While it need not state more than the party furnishing it is bound to prove under the pleading, it must be as specific as the circumstances of the case will allow, and should fairly apprise the opposite party and the court of the nature of the claim or defense made and the nature of the evidence.
    A libel in divorce grounded on adultery partakes of the nature of a criminal proceeding, and the accused has a right to demand the nature and cause of the accusation against him.
    Argued May 8, 1907.
    Appeal, No. 100, April T., 1907, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1904, No. 34, on verdict for plaintiff in-case of Mary Ella Weedon, by her next friend, C. E. Lipscomb, v. HughH. Weedon.
    Before Rice, P. J., Henderson, Orlad y, Head and Beaver, JJ.
    Reversed.
    Libel for divorce. Before Kennedy, P. J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned were portions of the charge quoted in the opinion of the Superior Court.

      Gfeo. H. Calvert, of Rodgers, Blakeley Calvert, with him Earle P. Carman, for appellant.
    The charge was erroneous : Talley v. Talley, 29 Pa. Superior Ct. 535; Rice v. Com., 100 Pa. 28; Gilpin v. Howell, 5 Pa. 41; Garrat v. Garrat, 4 Yeates, 244 ; Hoffman v. Hoffman, 30 Pa. 417 ; Light v. Light, 17 S. & R. 273 ; Realf v. Realf, 77 Pa. 31; Douglass v. Mitchell, 35 Pa. 440.

      October 7, 1907 :

      S. Cr. Nolin, with him Thomas M. Marshall, Jr., for appellee.
    There was no error in the charge of the court which directed the jury that they might find, adultery at any time within the period of intimacy mentioned in the bill of particulars, there having been produced evidence sufficient to prove adultery at the particular time and place mentioned, and in addition circumstantial evidence sufficient to warrant the inference of guilt from time to time within the alleged period of intimacy, although not at one particular time rather than another: Matchin v. Matchin, 6 Pa. 332.
    If it is not necessary to prove adtiltery in time and place, it cannot be necessary in all cases to allege it in time and place: Realf v. Realf, 77 Pa. 31; Gillardon v. Gillardon, 15 W. N. C. 528 ; Imhoff v. Fleurer, 2 Phila. 35 ; Ketcham v. Ketcham, 32 App. Div. 26 (52 N. Y. Supp. 961).
   Opinion by

Orlady, J.,

In the libel filed by the wife three distinct grounds or reasons for divorce are specified, to wit: adultery, cruel and barbarous treatment, and indignities to the person. On demand of the respondent, a bill of particulars was filed, and which becomes important in the light of the subsequent trial and verdict. It sets out “that beginning with June 1, 1901, and continuing until about October 1, 1903, the respondent contrived frequently to be in the company' of the co-respondent, and was on terms of improper intimacy with her during all that time. Especially was this the case during the months of June, July, August and September of 1901, and July and August of 1902, when he called at her home almost daily, spending the evenings with her there, or accompanying her to some other place. During all the period of said improper intimacy the respondent committed adultery with the named co-respondent as opportunity offered. In particular the respondent committed adultery with the name'd co-respondent at the following times and places: On or about June 15, 1901, at the respondent’s residence; on or about June 20, 1901, at a certain secluded spot known as Bingham’s Woods; on or about June 1, 1902, at a certain named house of assignation.

On the trial, the second ground mentioned was held by the court not to have been sustained ‘by the evidence and was for that reason withdrawn from consideration by the jury, and the verdict practically eliminates the third ground.

In the charge, the trial judge said, as to the first charge, adultery, “ It is not my purpose to comment at great length upon this testimony; it seems to me wholly unnecessary to refer to it further than to direct attention to the one specific act, overt act it might be called, alleged to have been committed on or about the 15th of June, 1901. ... If you should find from this testimony that it was committed at that time, or that he committed adultery with this woman at any other time, then it will be your duty to find for the plaintiff upon that charge. I have merely mentioned this as the specific act, with all the other acts of this defendant tending to show the intimacy between them, all offered for the purpose of sustaining this charge of adultery committed with the co-respondent on this day in June, 1901, or at any other time. ... I have said in your hearing that the testimony in support of this charge — • of the committing of this specific act on the 15th of June, was meager. I say that again, but at the same time I must say to you, that is only the opinion of the court, by which you are not bound at all. ... If you find a verdict for the plaintiff, you must specify whether you find it on the ground that he has committed adultery with the co-respondent, and you must say so by your verdict: in other words, you must find the fact whether he did commit this act of adultery on or about the 15th of June, 1901, or at any other time with this co-respondent. .... The question of fact is for your determination, and you are to be satisfied from the testimony of the plaintiff, the burden being upon her to satisfy you that this act was committed either at this time, or at some other time during the alleged intimacy of the parties. If you should be so satisfied, then it will be your duty to find a verdict for the plaintiff upon that ground.” These excerpts from the charge of the court are the foundation of the first, second, third and fourth assignments of error. The case was zealously tried by able counsel, and resulted in a verdict as follows: “We find a verdict for the plaintiff on the ground of adultery of the defendant with the co-respondent.”

The error complained of is that “ the court, in the charge to the jury, did not confine tlieir consideration of the charge of adultery, alleged to have been committed by the defendant, to the time or times mentioned and alleged in the bill of particulars filed, but that after referring to the offense as alleged to have been committed on or about the fifteenth of June, 1901, the court stated, that if they found the defendant guilty of adultery at that time or any other time they should find a verdict for the plaintiff.” The bill of particulars sets out an unlawful intimacy with the named co-respondent during the period from June 1, 1901 to about October 1, 1908 and designates three special dates “on or about June 15, 1901, on or about June 20, 1901, and on or about June 1, 1902 ” as the times when the offense was committed. The respondent did not ask for more definite specification, and had the right to rely on that furnished so far as it was specific. On the trial the libelant limited her proof of adultery to the occurrence of June 15, 1901, at the respondent’s residence, and that fact depended wholly on the testimony of a single witness, whose inability to tell fairly of the conduct of the parties on the date mentioned, or whose entire misunderstanding or perversion of what she did see and hear, caused the learned trial judge properly to instruct the jury that the testimony in support of that charge was very meager. There was no direct or inferential proof of adultery adduced as to the other dates and places. They were not mentioned. We are concerned only on this branch of the case with the charge of the court in the light of the bill of particulars, and the proof adduced under it.

The verdict rendered might have been found, under the instruction “ or at any other time,” upon testimony which would have sustained a verdict on the charge of “his cruel and barbarous treatment endangering her life,” or on the charge of “ offering such indignities to her as rendered her condition intolerable and her life burdensome,” but these charges were not pressed in the proof and the verdict distinctly eliminated them by finding him guilty of adultery only. There being distinct cause of divorce charged both in the libel and in the bill of particulars (Fay v. Fay, 27 Pa. Superior Ct. 328), the jury should have been confined by proper instructions to such charges in determining the particular one or ones they found the respondent guilty of. It will not do to find him guilty of adultery under proof of the other charges alone.

A bill of particulars is an amplification or more particular specification of the matter set forth in the pleading. While it need not state more than the party furnishing it is bound to prove under the pleading, it must be as specific as the circumstances of the case -will allow, and should fairly apprise the opposite party and the court of the nature of the claim or defense made and the nature of ‘ the evidence : 8 Ency. of Pleading & Practice, 519, 532. The act requires that the cause of complaint shall be set forth “ particularly and specifically.”

A libel in divorce grounded on adultery partakes of the nature of a criminal proceeding, and the accused has a right to demand the nature and cause of the accusation against him: Garratt v. Garratt, 4 Yeates, 244; Talley v. Talley, 29 Pa. Superior Ct. 535. The libelant specified the person and the three named dates and places, and went to trial on the issue as made by her own pleadings. By the enlargement of time to “ or at any other time,” the jury was permitted to read into a verdict something of which there was no evidence given or offered. It is one of the most important elements in the administration of justice that the accused shall have notice of what he has to answer for: Light v. Light, 17 S. & R. 273 ; Hoffman v. Hoffman, 30 Pa. 417. A verdict rendered without competent evidence to sustain it cannot be permitted to stand: Cauffman v. Long, 82 Pa. 72. Taking all the testimony, there is nothing to show that any other particular act of adultery was relied on than that alleged by the testimony of Anne Schutte, or any other which had sufficient inferential proof to warrant a finding in the libelant’s favor-of the adultery of the respondent.

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


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Berkley, Appellant, v. Maurer.

      Judgment — Opening judgment — Forgery—Evidence—Indictment—Estoppel of record — Contradiction of party.

    On the trial of an issue to determine the validity of a judgment entered upon a judgment note signed by two persons, where one of the defendants swears that his signature was a forgery, it is proper to admit in evidence a written information signed and sworn to by the plaintiff, charging the other defendant with having feloniously forged to the note in suit, the name of the defendant who denied his signature. Such evidence, however, is not conclusive on the plaintiff, nor is it necessary that it be -regarded as contradictory of any testimony delivered by him on the witness stand.
    A witness speaks in court through his testimony only and hence his testimony forms the sole -basis upon which the inconsistency of his other statement is predicated. But a party, whether he himself take the stand or not, speaks always through his pleadings and through the testimony of his witnesses put forward to support his pleadings; hence the basis upon which may be predicated a discrediting inconsistency on his part includes the whole range of facts asserted in his pleadings and -in the testimony relied on by him. Thus, in effect and broadly, anything said by the party may be used against him as an admission, provided it exhibits the quality of inconsistency with the facts subsequently asserted by him in pleadings or in testimony.
    On the trial of an issue to determine the validity of a judgment, where one of the two defendants testifies that his signature is a forgery, an indictment against the other defendant returned by the grand jury as a true bill, is inadmissible; and it is immaterial that the name of the plaintiff had been indorsed on the bill by the district attorney, as a witness for the state. Such testimony is dangerous, as it would be both easy and natural for the jury to regard the finding of the grand jury as a determination, by an independent tribunal, that a forgery had been committed, and to give it weight accordingly.

      Evidence — Witnesses—Forgery—Expert witnesses.

    On the trial of an issue where the question involved is the forgery of a signature, witnesses may testify who are actually familiar with the genuine signature of the defendant, either from having seen him write, or from having conducted a correspondence with him, or from having seen signatures acknowledged to be genuine and acted on them in the usual course of business. Such witnesses are not expert witnesses, and are not required to qualify as such. The scantness of their knowledge affects their credibility rather than their competency.
    A mere general comment in a charge disparaging the quality and value of expert testimony, is not ground for reversal.

      Argued May 7, 1907.
    Appeal, No. 122, April T., 1907, by plaintiff, from judgment of C. P. Somerset Co., Feb. T., 1903, No. 214, on verdict for defendant in case of H. M. Berkley v. E. B. Maurer.
    Before Rice, P. J., Henderson, Ordady, Head and Beaver, JJ.
    Reversed.
    Issue to determine the validity of a judgment entered upon a judgment note. Before Kooser, P. J.
    The defendant, E. B. Maurer, claimed that his name had been forged to the note upon which judgment was entered.
    At the trial the court admitted under objection and exception an information made by the plaintiff, H. M. Berkley, against C. A. Blanchard, charging him with the forgery of the note in suit. [4]
    Defendant made the following offer :
    Mr. Berkey: Counsel for tbe defendant proposes to offer the bill of indictment found by the jury February 25, 1903, entered to No. 51, February sessions, 1903, in which a true bill was found against C. A. Blanchard, charging with him with forgery, and in which bill H. M. Berkley, the prosecutor, is-marked as one of tbe witnesses that testified before the grand jury.
    Mr. Ruppel: That is objected to as irrelevant and immaterial.
    The Court: It appearing that the bill of indictment offered is in pursuance of the complaint of H. M. Berkley just admitted in evidence, and that by the indorsement it was found upon the testimony of E. B. Maurer and H. M. Berkley, we admit tbe paper in evidence and note an exception to the plaintiff. [5]
    Under this offer the indictment against C. A. Blanchard, which was returned by the grand jury as a true bill, was read to the jury.
    The court charged in part as follows :
    [Testimony as to things about which people could know and testimony about opinion resting on inference are of different character. On the question of this signature, for instance, the only positive testimony I now recollect is the testimony of Mr. Maurer ; that is not an opinion. The testimony of the other witnesses called for tlie plaintiff and for the defendant is matter of opinion, but it is entitled to consideration in the jury-box, and if all the circumstances will lead the jury to the conclusion that the opinion is to be given greater weight against the positive testimony, the plaintiff is entitled, to it. If you conclude that the opinion testimony is not entitled to the same weight as the positive testimony, then of course the evidence based on opinion would give way. Whether notice of the maturity of the note was given is not a matter of opinion. There is positive testimony on this matter, based upon recollection of the parties, probably, and yet if it is not a matter of recollection it might be a matter of veracity.
    Now, after this testimony of Maurer, the defendant called Mr. Berkley to the stand to testify with respect to an information or a complaint made by him, lodged before a justice of the peace on February 20, 1908, against C. A. Blanchard, charging Blanchard with having committed a forgery in writing the questioned-signature E. B. Maurer to the note now offered in evidence. And we admitted this affidavit in evidence, together with a bill of indictment that followed the affidavit, because it was a continuance along the same line of legal procedure and the indictment itself showing that it was presented to a grand jury upon the faith of the testimony of E. B. Maurer and H. M. Berkley, the two people who ought to know most about this question in controversy, and we admitted this in the nature of an admission by Mr. Berkley, whether he be treated as the plaintiff or as the agent active in pi'ocuring the note. We felt that he could best know of any others, and we admitted it in the nature of an admission by him, subject to his right of explaining the circumstances under which it was given.
    Now this note was executed on February 28, 1901, and was due May 28, 1901, and this information was lodged on February 20, 1903, nearly two years after the execution of the note, when presumably inquiry had been made as to the character of the note and this signature. After the paper was introduced Mr. Berkley went on the stand, and in line of what we have said about presuming’ him capable of explaining, he said that this information was made after the bank had entered judgment upon the note in the prothonotary’s office, and after Mr. Maurer had filed a petition asking to have that judgment opened and tried here in court, and that petitioner had made his affidavit that the signature purporting to be his name was a forgery, and Mr. Berkley made this affidavit on the faith of Mr. Maurer’s information and not upon any knowledge of his own.
    The defendant’s answer to that is a submission to you of the affidavit itself, which I believe was said to be in Mr. Berkley’s handwriting, that it is not therein stated that it was upon information and belief, but that Blanchard did forge the certain writing specified. The paper may go out with you into your room, and you will examine it to see precisely what it does state.] [14]
    [To illustrate it by getting away from this case, if one of you gentlemen had reared upon your farm a horse, had cared for it all its days, had kept a record of its birth, and after the horse became ten years old a question would arise about it in court, and the one man who had lived among horses and would be an expert, having examined the horse, would go on the stand to give his opinion as to the age of the horse from certain indications he has observed, and you would go on the stand to testify from your own knowledge of the birth of the horse, corroborated by your own book entry in your own house, you will understand what I mean when I say your positive testimony from your own knowledge of fact is a higher order of testimony than the testimony of the expert based on reasons that influenced him, and therefore in that sense we say that expert opinion is of a lower order than testimony from direct knowledge.] [15]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned among others were (4, 5) rulings on evidence as above, quoting the bill of exceptions ; (6-12) various rulings on the competency of witnesses, and (14, 15) above instructions, quoting them.

      W. II. Rugpel, with him George R. Scull and John R. Scott, for appellant.
    There was error in admitting the information and indictment against C. A. Blanchard in evidence : Harger v. Thomas, 44 Pa. 128.

      J. A. Berlcey, for appellee,
    cited : Harger v. Thomas, 44 Pa. 128.

      October 7, 1907:
   Opinion by

Head, J.,

To No. 214, February Term, 1903, of tbe court of common pleas of Somerset county a judgment was entered in favor of H. M. Berkley, cashier, against C. A. Blanchard and E. B. Maurer. This judgment was entered by virtue of a warrant of attorney attached to a note under seal purporting to have been signed by those parties. Upon the petition of Maurer, alleging that the note, as to him, was a forgery, .the court opened the judgment and an issue was framed to try the disputed question of fact. The loan, to secure which the note was given, was negotiated by Blanchard who was the son-in-law of Maurer. He had signed the note in the bank, in the presence of its officer, and undertook to procure the signature of his father-in-law who was known as a man of financial responsibility. Shortly thereafter he presented the note purporting to be thus signed, which was accepted by the bank and the money was given to Blanchard. Upon the filing of the affidavit by Maurer declaring that he had never signed the note nor authorized anyone to attach his name thereto, the cashier, Berkley, made an information before a magistrate charging Blanchard with forgery, and a warrant for his arrest issued. The record before us does not show that he was ever arrested; on the contrary, we gather from the testimony, in the case now under consideration, that he had absconded. Nevertheless a bill of indictment was framed and sent to the grand jury upon which were indorsed the names of Maurer arid Berkley, the cashier, and it was returned a true bill. Of the subsequent history of the criminal proceeding thus begun, we are not informed.

Upon the trial of the issue in the common pleas the burden of establishing that the defendant had signed the note was on the plaintiff. During the progress of the plaintiff’s case in chief Berkley was called as a witness. No testimony was sought or elicited from him as to the signature in question. He did not give nor was he asked to give any opinion concerning it. He simply identified another signature of the defendant’s as genuine for the purpose of obtaining a “standard.” There was no dispute as to this signature and it was admitted in evidence without objection. Later on he was recalled by the plaintiff and testified to the execution o£ the note by Blanchard in his presence, the length of time the latter was absent from the bank, and the condition of the note when he returned with it. The genuineness of the signature having been testified to by other witnesses competent for that purpose, the note was offered and admitted in evidence and the plaintiff rested.

By way of defense the defendant offered, inter alia, the written information, signed and sworn to by the plaintiff, charging Blanchard with having feloniously forged the name of Maurer to the note in suit. It was admitted against the objection of the plaintiff and this ruling is the subject of the fourth assignment of error. We think the offer was both competent and relevant. In the action being tried the plaintiff sought to recover from the defendant a large sum of money. The only evidence of the liability of the latter was the note purporting to be his written contract to pay. If he did not sign that note he owed the plaintiff nothing. The offer was a specific, unqualified declaration or admission by the plaintiff that the defendant had not signed the note, but that his name had been feloniously forged by another, or, in other words, that the defendant owed no money. Such an admission of a plaintiff ought to be received in any action wherein he sought to recover from another on a theory at variance with his former declaration. True, it would by no means conclude the plaintiff, and if followed, in the present case, by testimony tending to show that the information was based on the affidavit of the defendant himself, but little weight might be attached to it by the jury. It was subject to this right on the part of the plaintiff that the offer was admitted by the court. To make such an admission, by a party competent, it is not necessary that it be regarded as contradictory of any testimony delivered by him on the witness stand. In this respect he occupies a different attitude from one who is merely a witness. Professor Wigmore, Vol. II, sec. 1048, thus clearly states the distinction: “The witness speaks in court through his testimony only and hence his testimony forms the sole basis upon which the inconsistency of his other statement is predicated. But the party, whether he himself takes the stand or not, speaks always through his pleadings and through the testimony of his witnesses put forward to support his pleadings ; hence the basis upon which may be predicated a discrediting inconsistency on his part includes the whole range of facts asserted in his pleadings and in the testimony relied on by him. Thus, in effect and broadly, anything said by the party may be used against him as an admission, provided it exhibits the quality of inconsistency with the facts now asserted by him in pleadings or in testimony.” The fourth assignment must, therefore be overruled.

The fifth assignment complains of the action of the court in admitting in evidence and permitting to be read to the jury the bill of indictment already referred to and the finding of the grand jury thereon. The indictment itself was but the amplified statement in legal verbiage of the accusation contained in the information. It was in no sense the act or declaration of the plaintiff. Nor was the finding of the grand jury anything more than the formal assent of that body, after an ex parte hearing, to the proposition that the defendant ought to be tried in open court on the charge contained in the bill. Even in the trial of that case the finding of the grand jury could not be regarded as evidence helpful in determining the issue involved. Much less we think could it, in the present issue, aid the jury in reaching a correct solution of the question submitted to them. If, then, the bill and the grand jury’s return were not primary evidence tending to establish the contention of the present defendant, that his name had been forged on the note in suit, neither were they useful to contradict any testimony delivered by the plaintiff nor to show a former attitude on his part, in relation to that contention, inconsistent with his maintenance of the present action. The mere indorsement of his name on the bill by the district attorney, as a witness for the state, did not even establish that he had gone before the grand jury at all. If he did he went not as a volunteer but as any other witness. And what ground is there for assuming that if he was in fact called before that body, his testimony was in any respect different from that delivered in the present case, where it was confined to matters entirely collateral to the main question ? The proceedings in the quarter sessions were, therefore, purely res inter alios acta and their injection by the defendant into this record should'not have been permitted by the court. Whilst the point decided in Harger v. Thomas, 44 Pa. 128, was not precisely the one before us, the reasoning of the opinion delivered by Mr. Justice Thompson strongly supports the conclusion here reached. As it would be both easy and natural for the jury, in the present case, to regard the finding of the grand jury as a determination, by an independent tribunal, that a forgery had been committed, and to give it weight accordingly, we cannot say that the error in admitting the offer was a harmless one. The fifth assignment is sustained.

We have attentively considered all of the numerous assignments remaining, but can discover no advantage to be derived from a discussion of them either singly or in the groups into which they have been arranged.

The witnesses whose competency is attacked in several of these assignments did not attempt to qualify as expert witnesses. Their testimony was received on the ground that they were actually familiar with the genuine signature of the defendant either from having seen him write, from having conducted a correspondence with him, from having seen signatures acknowleged to be genuine and acted on them in the usual course of business. Although, in some of the instances complained of, the knowledge of the witness was so slight that the testimony would probably have but little weight before a discriminating jury, yet the fact that his knowledge was scant affected his credibility rather than his competency. The learned trial court could not, therefore, have properly rejected any of these witnesses : McNair v. Commonwealth, 26 Pa. 388 ; Cabarga v. Seeger, 17 Pa. 514; 15 Am. & Eng. Ency. of Law (2d ed.), pp. 254-256.

It is true also that the learned court below in' the general charge commented in a somewhat disparaging way on the quality and value of expert testimony, but we cannot say he went beyond permissible limits in doing so because our Supreme Court has said of such testimony, in Dawson v. Pittsburg, 159 Pa. 317, “ it is matter of opinion at best, and the lowest grade of evidence that ever comes into a court of justice. It is permissible only because, bad as it is, there is nothing better attainable.” All of the assignments of error, except the fifth, are overruled, but the fifth, for the reasons given, is sustained.

Judgment reversed and a venire facias de novo awarded.


author: Beaver, J.,

text:
    Davis v. Robinson, Appellant.

      Deed — Delivery—Recording—Adverse possession — Evidence.
    In an action of ejectment it appeared that the plaintiff, a church, claimed the land, designated as a numbered lot of a town under a deed from the founder of the town. The defendant claimed the land by mesne conveyances from the founder. It appeared that the deed to the church was not delivered until twenty-eight years after it was executed and acknowledged. About sixteen years after it was executed the founder executed a deed to defendant's predecessor in title for the same land "subject to any previous conveyance” to the church, “if, on examination, such a previous conveyance exists.” Defendant took title several years thereafter, and her deed was recorded seven years prior to the recording of plaintiff's deed. There was evidence that the defendant immediately fenced the land, and in the subsequent year erected thereon a dwelling. .There was also evidence that five years before the deed to plaintiff, the church, with the consent of the founder, began the erection of a church building on the adjoining lot then owned by the founder, and to some extent used the lot in controversy as a means of access to the church. Held, (1) that the question whether the plaintiff had acquired an adverse and exclusive possession of the whole or any part of the lot was for the jury; (2) that a judgment and verdict for the plaintiff for the portion of the lot used as a means of access to the church, should be sustained.
    Argued May 7, 1907.
    Appeal, No. 210, April T., 1907, by
    defendant, from judgment of C. P. Somerset Co., Sept. T., 1903, No. 57, on verdict for plaintiff in case of J. B. Davis, W. S. Kuhlman, Samuel S. Beal and Lewis Habernicbt, Councilmen of the Evangelical Lutheran Church, at Ursina, Pa., v. Sarah Catherine Robinson, wife of Charles F. Robinson.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Ejectment for land in the borough of Ursina. Before Koosek, P. J.
    The facts appear by the report in 32 Pa. Superior Ct. 90, and by the opinion of the Superior Court.
    Verdict and judgment for plaintiff.

      Errors assigned were instructions quoted in the opinion of the Superior Court, and refusal of binding instructions for defendant.

      October 7, 1907 :

      W. H. Ruppel, with him John R. Scott and C. W. Walker, for appellant,
    cited on the question of adverse possession: Grroft v. Weakland, 34 Pa. 304; Schuykill, etc., Improvement & R. R. Co. v. McCreary, 58 Pa. 304; Boggs v. Varner, 6 W. & S. 469; Brolaskey v. McClain, .61 Pa. 146; Root v. Com., 98 Pa. 170; Hugliesville Water Co. v. Person, 182 Pa. 450; Zerbey v. "Allan, 215 Pa. 383; Billington v. Welsh, 5 Binney, 129; Meehan v. Williams, 48 Pa. 238; In re Old Eagle School Property, 36 W. N. C. 348.

      W. II- Koontz, with him J. Gf. Ogle and J. A. Berkey, for appellees.
   Opinion by

Beaver, J.,

When, this case was previously before us — 32 Pa. Superior Ct. 90 — upon practically the same evidence as to the paper title, we said : “We are constrained to hold that it was error for the court below to give binding instructions in favor of the plaintiffs, and that, under the undisputed facts, the paper title of the defendant was superior to that of the plaintiffs.” 'We also held that, “ Whether the plaintiffs, under the parol gift from Baer, entered upon and retained adverse and exclusive possession of the whole or any part of lot No.' 124, and, if of a part only, then the lines of such portion were matters to be determined by the jury.”

In the retrial of the case the court followed our decision, and, although admitting, as was proper, the deed from Baer to the plaintiffs, instructed the jury at the same time, after reciting the facts very fully, as follows :

“ The defense furthermore contends that they went to the records, and with the aid of counsel had search made and found no such conveyance upon record (from Baer to Davis et al.). They furthermore testify that they made inquiry of Judge Baer as to the existence of such a conveyance, and that clause in the deed of conveyance from Baer to Yutzy did not require of Mrs. Robinson further inquiry than has been shown she and her predecessors had made as to the title. That being so, the deeds from Baer to Yutzy, from Yutzy to Scott, and from Scott to Mrs. Robinson, all having been placed of record before the deed from Baer to the church had been delivered, I instruct you that, so far as the paper title is concerned, beginning with the parol gift to be followed by a deed, and-actually followed by delivery in 1903, the title of Mrs. Robinson rises superior to that of the church, and plaintiff could not recover upon that title. If that were all there is in the case, I would instruct you to return a verdict for the defendant.”

The court then reviews all the testimony relating to the adverse possession of lot 124, or a portion thereof, by the church, and, in the concluding paragraph of that portion' of the charge, said:

“ Now there are perhaps other features relating to this use or occupation of the premises in question that I may have forgotten, but you will recall them. But if under all the testimony you find that the church went into possession of this lot, and the evidence satisfies you that the3r used it, asserting their right thereon continuously, openly, notoriously and adversely, claiming it as their own, that would make them a title to lot 124 at the expiration of twenty-one years from their entry on and taking possession of it. They testify they took possession in 1870, and so the twenty-one years would end in 1891, and their testimony is that no one controverted their ownership until 1896. And if there were nothing further in the case I would instruct 3’ou, if you thus found the evidence, that you should find for the plaintiff for the ground in dispute.

“ But at this point another question arose. This defendant acquired title, as I have indicated, in a line first from Baer to Yutzy, from Yutzy to Scott, and then from Scott to her, and that she went into actual possession of these premises. It was the next door to the plaintiff and upon prope^ which they now claim as theirs. And from anything that the court has seen in the evidence the officers of the church as officers were absolutely silent as to their ownership of these premises. They permitted Mrs. Robinson to enter upon the premises, erect thereon a house at a cost of $1,000 or $1,200, without such notice as the law, under the circumstances, required the3r should have given her. And, therefore, under the evidence that we have in the case, I say to yon as a question of law they are now estopped, notwithstanding evidence that they acquired title 63* possession — they are now estopped by their silence from denying the right of Mrs. Robinson to at least so much of this lot as her house stands on and is essential to its use, and, indeed, as I shall instruct you later, to all parts of said lot, unless it be to what is essential to and used, as before stated, by the church as a passageway into this basement.”

It is true that this portion of the charge is assigned for error, but it seems to us to be in exact accordance with the portion of our opinion in the previous case, above quoted, which indicated that the question'of adverse and exclusive possession of either the whole or any part of the lot was for the jury. The portion of the charge complained of was undoubtedly in the interest of the defendant, and the limitation as to what the jury was at liberty to find in regard to adverse possession, if any question were to be submitted to them, was the most which she could ask.

The jury returned “ a verdict in favor of the plaintiffs for that portion, of lot 124 — the premises in dispute — extending two and one half .feet wide from First street along the division line between lots Nos. 124 and 125 westward to the western side of the westernmost door in the church building basement, the lines being indicated on the draft attached to verdict,” upon which judgment was duly entered.

We are entirely satisfied with the manner in which the case was tried, and, it may not be improper to say, with the verdict also. It is, therefore, unnecessary to consider the numerous assignments of error, submitted for our consideration, in detail.

Judgment affirmed.


author: Rice, P. J.,

text:
    Pittsburg v. Consolidated Gas Company of Pittsburg, Appellant.

      Municipalities — Police power — Subsurface of street — Water pipes — Gas company — Public health.

    Except as restricted by the act under which a public service company derives its powers, the police power of a borough or city extends to such occupancy and use of streets, whether upon or beneath the surface, as in its nature requires, or justifies supervision at the hands of the municipality in order to safeguard the public in their rightful use of the same streets as those that are occupied by the public surface company.
    Whatever right a gas company acquires in a public street is subject, in so far as the location of its pipes in any particular part of a street is concerned, to such future regulation as may be required in the interest of the public health and public welfare.
    Where a city finds it necessary, in the interest of the public health, to lay a water main in a street in the location occupied by the gas pipe of a gas company, it may remove the gas pipe to another part of the street, and the gas company has no right to object to such removal or to demand damages or compensation on account thereof.
    The exercise of such a power by the city is referable to, and sustainable by, its police power; and the constitutional provision relative to compensation for property taken, injured or destroyed in the exercise of the power of eminent domain, has no application.
    Argued May 8, 1907.
    Appeal, No. 215, April T., 1907, by defendant, from decree of C. P. No. 3, Allegheny Co., Nov. Term, 1905, No. 186, on bill in equity in case of City of Pitts-burg v. Consolidated Gas Company of the City of Pittsburg.
    Before Rice, P. J., Hendebson, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Evans,- J., filed the following opinion :
    BINDINGS OE EACT.
    1. The city of Pittsburg maintains a system of water works for the supply of water to the inhabitants of the city and for the purposes of the general public, by virtue of various acts of assemby, as follows : An Act approved March 7, 1843, P. L. 46; Act approved April 6, 1867, P. L. 846, sec. 10; Act of March 15, 1871, P. L. 368; and the charter Act of March.7, 1901, P. L. 20, art. XIX, sec. 3, cl. XXXIX of which reads as follows:
    “ To have the exclusive right, at all times, to supply the city with water, and such persons, partnerships and corporations therein as may desire the same, at such price as may be agreed upon, and for the purpose to have, at all times, the unrestricted right to make, erect and maintain all proper works, machinery, buildings, cisterns, reservoirs, pipes and conduits for the raising, reception, conveyance and distribution of water ; or, in territory not supplied with water, to make contracts with and authorize any person, company or association so to do, and to give such person, company or association the privilege of furnishing water, as aforesaid, for any length of time, not exceeding ten years.”
    2. On the--- day of--, 190 — , the councils of the city of Pittsburg passed an ordinance authorizing the letting of a contract for a pipe line and appurtenances from Highland reservoir No. 2 to the south side, for the purpose of supplying filtered water to the south side of the city of Pitts-burg ; and in pursuance of that ordinance a contract was duly let and the work was in progress at the time of the filing of this bill.
    3. In the laying of the said water main from Highland reservoir to the south side, the pipes of the defendant company were encountered on Ellsworth avenue, at the corner of Graham street, and it became necessary to remove them from their location in order to lay the water main of the plaintiff from the intersection of Ellsworth avenue and Graham street to Colonial place, a distance of 1,600 feet.
    4. The councils of the city of Pittsburg, on October 14,1872, adopted the following ordinance (Thompson’s Digest, page 474)':
    “ Hereafter when’ it shall become necessary to take up any railroad track, gas pipes or private sewers, for the purpose of grading, re-grading, paving, or re-paving of any streets, lanes or alleys in the City of' Pittsburg, for the construction or repair of any sewer or other public improvement therein, it shall be the duty of the owner of such track, pipe, or sewer, upon written notice from the city engineer, street commissioner, or other parties having charge of the work, to take up such track, pipe or sewer, within such time as shall be specified in such notice, and to relay the same in such time and manner as may be designated in the same or subsequent notice.”
    The pipe of the defendant company was laid on that part of Ellsworth avenue in dispute in this case some time prior to the passage of the aforesaid ordinance.
    5. The pipes in dispute were laid by the East End Gas Company, a corporation organized by Act of assembly of April 5, 1869, P. L. 711. Tbe defendant, the Consolidated Gas Company, was chartered by special Act of assembly, approved May 19, 1871, P. L. (1872) 1309, and purchased the property ? rights and franchises of the East End Gas Company; and the said company owns, maintains and operates a line of pipe for the purpose of furnishing gas in and along Ellsworth avenue, between Graham street and Colonial place, in said city of Pittsburg, and other points in the said city.
    6. There is no ordinance of the city of Pittsburg authorizing the East End Gas Company to lay its pipes under the streets of said city ; but the city has recognized the right of the company to have its pipes in the street, by making a contract with the company in reference to the prices for the supply of gas to the city.
    7. The defendant company removed and replaced its pipe line in accordance with the decree and preliminary injunction in this case, at a cost of $137.44.
    CONCLUSIONS OF LAW.
    1. The East End Gas Company had the right, under its charter, to lay and maintain its gas pipes under the streets of the city of Pittsburg, and the defendant, the Consolidated Gas Company, succeeded to the rights of the East End Gas Company and is now lawfully maintaining its pipes on the part of Ellsworth avenue affected by the question in this case.
    2. The duty to furnish the supply of water to the inhabitants of the city of Pittsburg and for public use, is such a public duty as gives it the paramount right to occupy the streets over the rights of any private corporation; and the rights of the defendant are subordinate and must give way whenever they conflict with the right of the city to construct its water mains.
    3. That the defendant, the Consolidated Gas Company, pay the costs of removal and replacing of its pipes, and the costs of this proceeding.
    It is conceeded by the counsel for the defendant that, if the removal of its pipes were occasioned by the change of the grade of the street, or the construction of a sewer, the defendant company would be compelled to change the location of its pipes wherever their present location interfered with the city in the prosecution of its work. But it is claimed that the furnishing of water and the laying of pipes incidental thereto is not a governmental function, that the city, in doing the same, is acting as a private corporation.
    It may be conceded that the furnishing of water to the inhabitants of the city and for the use of the public is not an inherent right or duty on the part of the city; but when the legislature imposes that duty upon the municipality, as it has done in the case of the city of Pittsburg, it becomes as binding a duty upon the cityr to furnish healthful water to its inhabitants and a supply of water for public uses, as though it were an essential to the conduct of municipal government. Certainly, the supplying of clean water and healthful water is as necessary to public life as is the taking care of the sewage of the inhabitants of the city, and the legislature has devolved upon the municipality of Pittsburg the duty of conserving the public health by .the proper supply of water to its inhabitants.
    Let a decree be drawn in accordance with the above findings.

      Error assigned was decree awarding an injunction.

      Samuel Me Olay, with him Eeed, Smith, Shaw Beal, for appellant.
    The appellee cannot compel the appellant to move, change and replace its gas pipes without compensation, because:
    1. The grant by the state to the East End Gas Company, approved by the municipality, to lay its pipes on Ellsworth avenue, constituted a contract when accepted and acted upon by the gas company, that cannot be revoked, modified or impaired by the municipality except with the consent of the gas company, unless the municipality shall do so in the exercise of its governmental function or under the police power.
    2. The municipality, in the construction of its water mains on Ellsworth avenue, was not exercising any sovereign or governmental right ■ vested in it, but was acting solely in a business capacity, and possessed no higher right than a private water company incorporated under the statutes of Pennsylvania, and it could not compel the removal of appellant’s pipes as prayed without compensation.
    See the following cases : City of Pittsburg’s App., 115 Pa. 4 ; Walla Walla v. Walla Walla Water Co., 172 U. S. 1 (19 Sup. Ct. Repr. 77) ; Western Saving Fund Society v. Philadelphia, 31 Pa. 175; Wheeler v. Philadelphia,. 77 Pa. 338; Baily v. Philadelphia, 184 Pa. 594; White v. Meadville City, 177 Pa. 643 ; Jolly v. Monaca Borough, 216 Pa. 345 ; Edison Electric Light & Power Co. v. Electric Light, Heat & Power Co., 200 Pa. 209.

      J. R. Me Or eery, with him W. B. Rodgers, for appellee.
    The city of Pittsburg does not contend that it can arbitrarily, by the location of its water mains, compel the removal of pipes of private corporations which were laid in the streets by lawful authority, but its contention is that when in the furnishing of water it becomes necessary to change the location of such pipes the city has the power to require such change and it must be made at the expense of the private corporation because that is a regulation for the public good under the police power and is not taking property without compensation : Chicago, Burlington, etc., R. R. Co. v. Chicago, 166 U. S. 226 (17 Sup. Ct. Repr. 581) ; Lehigh Water Co.’s App., 102 Pa. 515 ; Allentown v. Henry, 73 Pa. 404; Scranton Gas & Water Co. v. Scranton City, 214 Pa. 586 ; Water Commissioners v. Hudson City, 13 N. J. Eq. 420 ; Chicago, etc., R. R. Co. v. Drainage Commissioners, 200 U. S. 561 (26 Sup. Ct. Repr. 341); Deering’s Petition, 93 N. Y. 361; Nat. Water Works Co. of N. Y. v. Kansas City, 28 Fed. Repr. 921; Belfast Water Co. v. Belfast City, 92 Me. 52 (42 Atl. Repr. 235) ; Rockland Water Co. v. Rockland City, 83 Me. 267 (22 Atl. Repr. 166) ; Gas Light & Coke Co. v. Columbus, 50 Ohio, 65 (33 N. E. Repr. 292) ; Brunswick Gas Light Co. v. Brunswick Village Corporation, 92 Me. 493 (43. Atl. Repr. 104) ; Middlesex R. R. Co. v. Wakefield, 103 Mass. 261; Portsmouth Gas Light Co. v. Shanahan, 65 N. H. 233 (19 Atl. Repr. 1002) ; Jamaica Pond Aqueduct Corporation v. Inhabitants of Brookline, 121 Mass. 5; Johnson v. Jaqui, 27 N. J. Eq. 552; Roanoke Gas Co. v. Roanoke, 88 Va. 810 (14 S. E. Repr. 665) ; Southwark R. R. Co. v. Philadelphia, 47 Pa. 314; Wilkes-Barre Gas Co. v. Hendler, 5 Kulp, 347 ; Monongahela City v. Monongahela Electric Light Co., 3 Pa. Dist. Rep. 63 ; Ridge Avenue Pass. Ry. Co. v. Philadelphia, 181 Pa. 592.

      October 7, 1907:
   Opinion by

Rice, P. J.,

Tbe nature of the proceedings and the issue out of which this appeal arises and the facts pertinent to the issue have been fully and clearly set forth by the learned judge below, and we shall not attempt to restate them. The appellant’s proposition, that it had a right to maintain its pipe, on Ells-worth avenue in the location in which it was laid, which right could not be abridged nor interfered with by the city, without making or securing due compensation, “ except through its sovereign or police powers,” is indisputable under the evidence. To be more explicit, the statutes under which it acquired the right do not expressly provide that it shall be held subject to ordinances thereafter to be passed relative to the location, relocation or relaying of such pipe; nor was the pipe laid under consent granted by the city upon such condition. It is claimed that the right of the city to lay a water main in the same street, while equally clear and incontestable, was not superior, abstractly considered. This, it is argued, is a logical deduction from the general principles enunciated in Westen Saving Fund Society v. Phila., 31 Pa. 175; Baily v. Philadelphia, 184 Pa. 594; White v. Meadville, 177 Pa. 643, at p. 652, and for present purposes it may be conceded. It results from the foregoing that the city could not compel the gas company to remove its pipe from the location where it was lawfully laid, except in the exercise of the right of eminent domain and upon making and securing due compensation, unless it could vouch some other basis for its demand than its mere will to use the same location for its water main. But although in the statutes under which the gas company acquired its right there is no express reservation to the state or the city of the power to require the company to change the location of its pipe, it does not necessarily follow that no such power can be exercised by either under any circumstances. “The right of a private corporation to break up” — and we add, to occupy or use — “the public highways of a municipality in the exercise of a franchise conferred upon them by an act of assembly, is necessarily subject to the reasonable municipal regulations of the district enacted for the common good of all its inhabitants unless specially excluded by the act conferring the right: ” Commissioners, etc., of The Northern Liberties v. The Northern Liberties Gas Company, 12 Pa. 318. A company that is required to obtain municipal consent, and after obtaining it has entered upon the streets, is in precisely the same situation,- so far as its being subject to police regulation is concerned, as a company that is not required to obtain consent. The power of the city to make reasonable police regulations is independent of, and not merely incidental to, the power to grant or withhold consent to the use of the streets by the corporation: Lansdowne Borough v. Springfield Water Company, 16 Pa. Superior Ct. 490. “ To say that the police power of a city or borough over streets does not extend beneath the surface would be contrary to sound principle, and be justified by no decision to which our attention has been called. Indeed, it would seem to be in plain conflict with the principles enunciated in McDevitt v. People’s Nat. Gas Co., 160 Pa. 867, and kindred cases. Except as restricted by the act under which such companies derive their powers, the police, power of a borough or city extends to such occupancy and use of the streets, whether upon or beneath the surface, as in its nature requires or justifies supervision at the hands of the municipality in order to safeguard the public in their rightful use of the same streets : ” Kittanning Boro. v. Nat. Gas Co., 26 Pa. Superior Ct. 355. The primary use of streets in cities and boroughs is not confined to travel or transportation. As to the uses for which such highways are acquired and to which they are appropriated, we quote from the McDevitt case above cited: “ The necessity for drainage; "for a water supply; for gas for purposes of lighting; for natural, or fuel gas, for' heat; for subways for telegraph and other wires ; and for other urban necessities or conveniences, gives to the municipality a control over the sub-surface that the township has not. Property in a city is no less sacred than property in the country. The title of the owner is neither better nor worse because of the location of his land. But its situation may subject it to a greater servitude in favor of the public in a large, compactly built city than would be imposed upon it in the open country. The city has the right to use the streets and alleys to whatever depth below the surface it maybe desirable to go, for sewers, gas and water mains, and any other urban uses. In taking the streets for these necessary or desirable purposes it is acting not for its own profit, but for the public good. It is the representative of the inhabitants of the city, considering their heath, their family comfort, and their business needs ; and every lot owner shares in the benefits which such an appropriation of the streets and alleys confers. If the city abridges his control over the soil in and under the street, it compensates him by making him a sharer in the public advantages that result from proper drainage, from an abundant water supply, from the general distribution of gas, and the like.” In Scranton Gas & Water Company v. Scranton City, 214 Pa. 586, it was held that where a city changes the grade of a street in order to do away with a railroad grade crossing, and a gas and water company is obliged to move its pipes from the street by reason of the change of grade, the company can recover no damages from the city for the injury sustained. Justice Stewart, who delivered the opinion of the court, said upon the subject now under consideration: “ Calling the legislative grant of privilege to use the streets a contract does not avoid the conditions on which the privilege is to be exercised. Whether such limitation or conditions be expressed in the grant or not is immaterial, for, as said in Butchers’ Union Slaughter House Co. v. Crescent City Live Stock Landing Co., 111 U. S. 746, the power to control and regulate the streets so as to protect the public health, is one that cannot be bargained away by legislative or municipal grant. The power to control them for the protection of public safety, if not the same, stands on equally high ground. All authorities 'agree that such right is both paramount and inalienable. Nor is the right limited to the control of a mere surface; it extends to the soil beneath, to whatever extent it may be required in aid of such purposes as fall within the municipal function, in connection with the health and safety of the public: Water Commissioners of Jersey City v. Hudson City, 13 N. J. Eq. 420.” Then after quoting from Rafferty v. Central Traction Co., 147 Pa. 579, he says : “ It is unnecessary to cite other authority to show that no liability results to the municipality,. for the disturbance of a gas or water company’s pipes in the public streets when made necessary by public consideration.” So in New Orleans Gas Light Company v. Drainage Commission of New Orleans, 197 U. S. 453, in which a judgment of the Supreme Court of Lonisiana denying the right of a gas company to recover sums paid out for making the changes in the location of its pipes and mains necessitated by the construction of a municipal drainage system was affirmed, Justice Day, said : “ The need of occupation of the soil beneath the streets in cities is constantly increasing for the supply of water and light and the construction of systems of sewerage and drainage, and every reason of public policy requires that grants of rights in such sub-surface shall be held subject to such reasonable regulation as the public health and safety may require.” Viewing the case before us in the light of these well-established principles, we think it clear that whatever right the gas company acquired was subject, in so far as the location of its pipes in any particular part of the street was concerned, to such future regulations as might be required in the interests of the public health and public welfare.

We think it equally clear that the occasion justified the exercise of this power, and that the ordinance of 1872 is broad enough in terms to cover the case. The pipe of the gas company could be moved to another part of the street without other loss or damage to the company, so far as the evidence shows, than the cost of removal, which was small. On the other hand, the trial court has found that for a certain distance on Ellsworth avenue it was necessary to lay the water main in the location occupied by the gas pipe. The evidence shows that this location for the water main was not selected arbitrarily, but for practical reasons which amply justified the selection and the finding of the court that it was necessary. The ultimate purpose for which the city determined to use this portion of the sub-surface of the street wras not to increase its revenues from the business of supplying water to the inhabitants of the city, but to promote the public health.- It was part of a plan which was as directly and obviously calculated to promote that object as the construction of a system of sewerage or drainage. It is a mistake to suppose that its action now under consideration is referable only to its power to supply water to the inhabitants of the city and for public uses. It has that power, and it is exclusive, but it also has the power to make regulations to secure the general health of the inhabitants ; and its action is sustainable as a reasonable exercise of that power upon proper occasion, whatever may be said of its mere power to supply water. As was said in Lehigh Water Co.’s Appeal, 102 Pa. 515, a municipal corporation exercising the functions of a private corporation in supplying its citizens with gas or water does not thereby lose its distinctive municipal character. Therefore, the case is not to be treated as if it were a dispute between two private corporations, one acting under the power to supply gas and the other under the power to supply water to the inhabitants of the city, but as a case turning upon the question whether a gas company may be compelled to change the location of its pipe from one part of a street to another part of the same street, where such change is necessary in order to enable the city to execute a plan which is so obviously and directly calculated to promote the public health, as is the city’s plan to improve the character of the water supply. In ac ./ering that question in the affirmative it is not necessary to decide that a power to supply water, abstractly considered, is higher in grade than a power to supply gas, but only that the gas company held its right to occupy a particular part of the street subject to the superior right of the city to control and regulate the use of the street so as to protect and promote the public health.

The action of the city, to which the defendant objects, being referable to and sustainable by its police power, the constitutional provision relative to compensation for property taken, injured or destroyed in the exercise of the power of eminent domain, has no application. The defendant cannot claim damages or compensation on account of being compelled to render obedience to a police regulation designed to secure the public health and welfare : Scranton Gas & Water Co. v. Scranton, 214 Pa. 586; New Orleans Gas Light Co. v. Drainage Commission of New Orleans, 197 U. S. 453; Chicago, Burlington & Q. Ry. Co. v. Chicago, 166 U. S. 226, at p. 255. Other cases are cited in the appellee’s brief in support of this proposition.

The decree is affirmed and the appellant to pay the co^ts.


text:
    Miller’s Estate.

      Marriage — Husband and wife — Evidence—Competency of surviving widow.

    A woman claiming to be a surviving widow is a competent witness to prove her marriage with the decedent.

      Marriage — License—Application for license — Laches.
    A marriage is not invalidated by the fact that the woman alone procured the license; nor by the fact that there was an interval of four months between the date of the license and the date of the marriage.
    Argued May 8, 1907.
    Appeal, No. 96, April T., 1907, by William Miller, from decree of O. C. Allegheny Co., May T.,' 1906, No. 182, dismissing exceptions to adjudication in Estate of Henry Miller, deceased.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication awarding a portion of the estate of Henry Miller to Catherine T. Miller.
    The opinion of the Superior Court states the case.

      Errors assigned were in dismissing exceptions to adjudication.

      H. M. Scott, with him Harvey A. Miller, for appellants.-
    It is submitted that Catherine Theresa Chambers, the alleged widow, claimant, is not a competent witness to prove the alleged marriage: Comly’s Est., 185 Pa. 208; Greenawalt v. McEnelley, 85 Pa. 352; Drinkhouse’s Est., 151 Pa. 294; Luce’s Est., 3 Pa. Superior Ct. 289; De Silver’s Est., 15 Pa. Dist. Rep. 205.
    It is further submitted that the authority of the clerk of the orphans’ court to grant or refuse to grant marriage licenses is a judicial, and not merely a ministerial, act, and that to properly enable him to perform his functions, both of the parties to an intended marriage must appear before him, or the other officers indicated, either separately or together, and swear to the prescribed question, and subscribe and swear to the answer: Moore v. McClelland, 1 Pa. C. C. Rep. 555 ; Biesecker’s Est., 7 Pa. Dist. Rep. 70.

      October 7, 1907 :

      M. L. Thompson, with him H. L. Goehring, for appellee.—
    The claimant widow is a competent witness: Comly’s Est., 185 Pa. 208 ; Luce’s Est., 3 Pa. Superior Ct. 289; Drinkhouse’s Est., 151 Pa. 294; Greenawalt v. McEnelley, 85 Pa. 352; Hines’ Est., 10 Pa. Superior Ct. 124.
    When the license is issued on the application of one of the parties alone, their subsequent marriage is valid under the statute. Courts have always construed acts relating to marriages so as to uphold the marriage relation whenever possible: Rodebaugh v. Sanks, 2 Watts, 9 ; Beelman v. Roush, 26 Pa. 509 ; Hayes v. People, 25 N. Y. 390 ; Carmichael v. State, 12 Ohio St. 553; Foster v. State, 31 Tex. Crim. App. 409 (20 S. W. Repr. 823) ; Askew v. Dupree, 30 Ga. 173 ; Gardiner v. Manchester, 88 Me. 249 (33 Atl. Repr. 990) ; State v. Parker, 106 No. Car. 711 (11 S. E. Repr. 517) ; Overseers of the Poor v. Overseers of the Poor, 2 Vt. 151.
    In the absence of a positive statute declaring that all marriages not celebrated in the manner therein prescribed shall be void, any marriage regularly made according to the common law, without observing the statutory regulations, is a valid marriage : Meister v. Moore, 96 U. S. 76.
   Opinion by

Beaver, J.,

If Henry Miller and Catharine Chambers were legally married and if the fact of a legal marriage was established by competent evidence, none of the seventeen assignments of error which confront us in this case can be sustained.

That the marriage of the decedent with the appellee, who claims to be his widow, actually took place can, under the testimon}', scarcely be doubted. The auditing judge distinctly found that ás a fact, based upon competent testimony. The widow herself so testified. A marriage license procured by her was exhibited. There was also a certificate of the marriage and the priest who married them was called as a witness and testified not only to the marriage but to the personal appearance of the man and to his signature attached to an agreement which was procured in reference to the training of any possible issue of the marriage. This signature was admitted to be that of the decedent. There was, therefore, abundant evidence to sustain the finding of the court as to the actual marriage.

It is objected, however, that the court erred in admitting the testimony of the alleged widow. The Act of May 23, 1887, P. L. 158, relating to the competency of witnesses, expressly provides, in an exception to clause (e) of section 5, that where the “ issue or inquiry respecting the property of a deceased owner, and the controversy be between parties respectively claiming such property by devolution on the death of such owner, all persoiis shall be fully competent witnesses.” What was said in Comly’s Estate, 185 Pa. 208, is peculiarly' applicable here: “ The competency of the claimant to testify as to the alleged contract of marriage was scarcely a material question. Her testimony was actually relied upon by the contestants who now object to it as perhaps the most vital to their own interests, in rebutting the presumption of a contract which arose from cohabitation and repute, by showing substantively that the attempt to make a contract had utterly failed. It was not essential to the issue, moreover, for the reason that the other proofs were amply sufficient to make out the claimant’s case, but it was competent.” See also Luce’s Estate, 3 Pa. Superior Ct. 289; Drinkhouse’s Estate, 151 Pa. 294. These latter cases are also authority for the well-known proposition, which it is not necessary to repeat, that the findings of fact by an adjudicating judge will not be reversed when based upon evidence sufficient to sustain the verdict of a jury, which is undoubtedly the case here.

It is alleged, however, that the marriage was solemnized by virtue of a marriage license procured by the woman alone and that it was, therefore, invalid. The marriage is alleged to have occurred on October 29, 1903. The Act of May 1, 1893, P. L. 27, amending the Act of June 23, 1885, P. L. 146, provides, “ that one or both of the applicants shall be identified to the satisfaction of the clerk applied to for such license.” It would seem, therefore, that an application by one of the parties, if identified, is sufficient.

It is also objected that, although the marriage license was dated May 8, 1903, the marriage thereunder did not take place until October 29, 1903, and that, by reason of the lapse of time, the license had lost its validity. There is nothing in the act, however, requiring the marriage to be performed within any given time,

The questions raised here were all argued in the court below and were, in our opinion, all satisfactorily disposed of. The findings of fact were based upon competent testimony and the opinion of the adjudicating judge is sustained by abundant authority.

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


author: Morrison, J.,

text:
    Davis v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Infant — Signals ■ — • Contributory negligence — Case far fury.

    In an action against a railroad company to recover damages for the death of a boy between thirteen and fourteen years of age, at a public grade crossing in a town, the case is for the jury where the evidence tends to show that the crossing was a dangerous one, that there was no watchman stationed or gates maintained at it, and that the train was run at a high rate of speed without bell rung or whistle blown, or other signal given of the approach of the train.
    The failure to maintain a watchman or establish gates at a much used' public grade crossing, may be considered with other facts in determining whether the railroad company was negligent.
    In an action to recover damages for the death of a boy between thirteen and fourteen years of age at a public crossing of a railroad, the court should submit to the jury the question of the boy's mental capacity and ability to be guilty of such contributory negligence as would have prevented the recovery, if he had been injured and survived.

      Negligence — Death—Parties—Parent and child — Acts of April 15, 1851, P. L. 669, and April 26, 1855, P. L. 309.
    In an action to recover damages for death of a minor, both parents, if living, should be joined as parties plaintiff.
    Argued May 6, 1907.
    Appeal, No. 188, April T., 1907, by defendant, from judgment of C. P. Cambria Co., June T., 1904, No. 213, on verdict for plaintiff in case of William and Cora J. Davis v. The Pennsjdvania Railroad Company.
    Before Rice, P. J., Hexdebson, Mokrisoít, 0blady, Head and Beavek. JJ.
    Affirmed.

      Trespass to recover damages for death of plaintiff’s son. Before Bell, P. J., specially presiding.
    The plaintiff presented the following points:
    3. While it is true that trains must be run at a high rate of speed to reach their greatest utility, yet in populous towns and cities where the tracks cross a much traveled street or highway, the speed must be moderated or such other precautions taken by the company as are reasonably commensurate with the danger of life, limb and property. Answer: This point is affirmed. [12]
    4. As it is an undisputed fact that there was no flagman stationed or gates maintained at the crossing of the public highway or street by the defendant’s tracks at Cresson, where the plaintiffs’ son was killed, if the jury find from all the evidence that the public safety could not be reasonably secured at said crossing otherwise than the company having a flagman stationed or gates maintained thereat, they may find negligence on the part of the company, the defendant in this case, on account of the absence of said flagman or gates. Answer : This point is affirmed. We call your attention to our instructions in the general charge that the company were not bound to- maintain a flagman or safety gates unless it was a much traveled crossing and a dangerous one. To rule otherwise would be to submit to a jury, to find negligence on the part of the railroad company every time that any person was killed at any grade crossing. [9]
    5. Even though the whistle were blown and the bell rung on the engine which struck and killed the plaintiffs’ son, yet, if under the particular circumstances of the ease, the jury find that the public safety was not reasonably secured at the crossing by reason of the absence of a flagman or of gates, they may still find that the defendant was negligent. Answer: This point is affirmed. [10]
    6. If the jury find from the weight of the evidence that the whistle on the engine which struck and killed the plaintiffs’ son was blown at such a place that it could not be heard at the crossing where the deceased was killed by reason of the fact of the noise caused by another train going east, and also find that no other sufficient warning of a train was given, the jury may find that the defendant was negligent. Answer: This point is affirmed. But at the same time we call your attention to the fact that the railroad company are only required to use ordinary care under the circumstances, and if they provided for the blowing of a whistle at a place where a man of ordinary prudence and judgment would provide for the blowing of a whistle, then they have performed their full duty as far as the blowing of a whistle is concerned. [11]
    Defendant’s counsel have requested the court to answer the following points:
    1. That inasmuch as the testimony is clear that decedent was standing close to the north rail of the track, observing a freight train passing in the opposite direction, he was in a dangerous place, and the plaintiffs cannot recover. Answer: This point is denied, because the deceased, William Davis, Jr., was under the age of fourteen years. If he had been over fourteen we would have affirmed the point, and, as we have stated in the general charge, take the responsibility of directing a verdict for the defendant; but as the deceased was under fourteen, we think it is not for the court to say that he was guilty of contributory negligence, but the question as to whether or not he was guilty of contributory negligence is for the jury. [1]
    2. That the measure of the boy’s contributory negligence is his capacity to see and appreciate danger: and in the absence of clear evidence of the lack of. it, he will be held to such measure of discretion as is usual in those of his age and experience, and the question is for the court. Answer: This point is denied, and our remaining answer would be the same as our answer to defendant’s first point.
    3. Inasmuch as the engineer and the decedent had a clear view of the crossing and the approach of the train for more than 4,000 feet, the fact there was no safety gates or flagman at the crossing is immaterial. [2] Answer : This point is denied as applicable to this present case for the reason that William Davis, Jr., was under the age of fourteen. If he had been over the age of fourteen, then, as we have said in our general charge, we would say that he was guilty of contributory negligence and direct a verdict for the defendaut. [3]
    4. Inasmuch as there was a clear view of more than 4,000 feet between the crossing and the train, a speed of forty miles per hour is not excessive at this particular crossing. Answer:
      This point is denied as put. The question of the speed of the train is for the jury, if they come to the question of alleged negligence on the part of the defendant. [4]
    5. That there is not sufficient evidence to submit to the jury that it is an extraordinarily dangerous grade crossing. Ansiver : This point is denied. That is a question for the jury to consider under the weight of the evidence. [5]
    6. That inasmuch as the engineer saw the boy for a long distance and the tower men saw him for almost 600 feet standing on the track watching a freight pass, the presumption that he stopped, looked and listened is withdrawn, and the facts not being controverted, he was guilty of contributory negligence, and the plaintiffs cannot recover. Answer : This point.is denied, because William Davis, Jr., at the time of his decease, was under the age of fourteen. If he had been over fourteen we would have taken the case from the jury. [6]
    7. That under the evidence the verdict should be for the defendant company. Answer : This point is denied. We submit the question to you to determine what your verdict shall be under the law as this court has instructed you, viewed in the light of the evidence as you have heard such evidence. [7]
    8. That inasmuch as the mother, who is living, is not a party to this action, the plaintiffs cannot recover. Answer: This point is denied as the case stands at present. The plaintiff, William Davis, Sr., this morning amended his cause of action by adding Mrs. Cora Davis as a coplaintiff, and in that view of the matter the point is denied.
    Verdict and judgment for plaintiff for $1,250. Defendant appealed.

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

      H. W. Storey, for appellant.
    At what age, then, must an infant’s responsibility for negligence be presumed to commence ? This question cannot be answered by referring it to a jury. That would furnish us with no rule whatever. It is a question for the court: Nagle v. R. R. Co., 88 Pa. 35; Parker v. St. Ry. Co., 207 Pa. 438; Kehler v. Schwenk, 144 Pa. 348; Pass. Ry. Co. v. Gallagher, 108 Pa. 524 ; Funk v. Electric Traction Co., 175 Pa. 559; Kline v. Electric Traction Co., 181 Pa. 276; Miller v. Union Traction Co., 198 Pa. 639; Sheehan v. P. &. R. R. R. Co., 166 Pa. 354; Smith v. P. & R. R. R. Co., 160 Pa. 117; Malloy v. Starin, 99 N. Y. Super. Ct. 603.
    October 7, 1907:
    It was not contended by the plaintiffs nor did they deny that the boy was standing in a dangerous place; that he was not taking proper care. In this case the question is for the court; it is not a question of the negligence of the defendant. The train was running at its usual schedule speed, yet the court permitted the jury to determine whether the defendant was negligent in so doing. The train was carrying through passengers, and surely while it was running at its regular speed, about forty miles per hour, it was not a question for the jury to determine: Newhard v. R. R. Co., 153 Pa. 417; Blight v. R. R. Co., 143 Pa. 10; Beynon v. R. R. Co., 168 Pa. 642; R. R. Co. v. Ritchie, 102 Pa. 425.

      R. A. Henderson, with him Harvey Roland, for appellees,
    cited as to the question of the deceased’s contributory negligence: Nagle v. R. R. Co., 88 Pa. 35; West Phila. Pass. Ry. Co. v. Gallagher, 108 Pa. 524; Kehler v. Schwenk, 144 Pa. 348; Iaquinta v. Traction Co., 166 Pa. 63 ; Parker v. St Ry. Co., 207 Pa. 438; Byron v. Central R. R. 215 Pa. 82; Daubert v. D., L. & W. R. R. Co., 199 Pa. 345; Bracken v. Penna. R. R. Co., 32 Pa. Superior Ct. 22.
   Opinion by

Morrison, J.,

This is an action or trespass originally brought by William Davis against the defendant, based on the killing of the plaintiff’s son, aged between thirteen and fourteen years, at a public crossing of the defendant’s five tracked railroad at Cresson, Pennsylvania.

During the trial the record was amended hy adding the name of Cora J. Davis as a plaintiff. This action is maintainable only under the provisions of the Acts of April 15, 1851, P. L. 669, and April 26, 1855, P. L. 309. It is solely by vir? tue of the provisions of these statutes that damages are recoverable for the death of William Davis, Jr. The deceased was a minor son of William Davis and Cora J. Davis and, as was said by Mr. Justice . Mestrezat, in the recent case of Waltz v. Penna. R. R. Co., 216 Pa. 165: “It is, therefore, apparent that in bringing the suit the act of 1855 was entirely disregarded, notwithstanding the plain terms qf the statute and the numerous decisions of this court pointing out the proper practice. The action should have been brought jointly in the names of both parents and the statement should have given the names of the parties who were entitled to the damages recovered. Neither of these requirements of the statute was complied with, and the trial court was clearly wrong in holding that ‘ the failure to join the husband and wife, the parents of the decedent, in the action,’ was not error. The ruling of the learned judge disclosed a misapprehension of the plain terms of the statute.”

In the present case the learned counsel for the defendant presented a point that inasmuch as the mother, who is living, is not a party to this action, the plaintiff cannot recover. This was refused because of an amendment, during the trial, adding the name of the mother, Cora J. Davis, as a plaintiff. The declaration was not amended and the provisions of the act of 1855 were palpably disregarded. In view of what was said in the case of Waltz v. Penna. R. R. Co., 216 Pa. 165, the trial court would have been warranted in affirming that point, unless the parties to the action and the declaration were so amended as to comply with the act of 1855. But we have no assignment of error raising this question and what has been said is merely for the purpose of directing the attention of the profession to the statutory requirements in this class of cases. It is remarkable that so many of these suits are brought without an attempt to make the pleadings comply with the statutory provisions, and the decisions of the Supreme Court.

We have'two questions raised by the assignments of error: (1) The negligence of the defendant, and (2) the contributory negligence of the decedent. It is not contended that the parents of the boy were guilty of contributory negligence.

The contention of the plaintiffs is that the defendant was negligent because the crossing was extraordinarily dangerous, the train running at a high rate of speed, and there was no watchman stationed or gates maintained at the crossing, or other means provided to warn the public of approaching trains; that no bell was rung or whistle blown or other signal given of the approach of the train which killed the boy, in time to be any protection to him. It is also contended that this crossing is in a populous place and is so much used that it is strong evidence of negligence not to provide a watchman or safety gates.

The other position of plaintiff is that the boy, being under fourteen years of age, the question of his capacity and mental development, so as to render him guilty of contributory negligence, was for the jury.

First, as to the negligence of the defendant: A careful examination of the evidence convinces us that the learned court did not err in referring this question to the jury. The evidence was in conflict and it raised material questions of fact upon which the negligence or non-negligence of the defendant depended. We think the charge of the learned court upon this question is clear and adequate and the jury having found the defendant guilty of negligence, we are unable to find anything in the record calling for a reversal on that ground.

As to the failure of the company to maintain a watchman or established gates at a public grade crossing, see Lehigh Valley R. R. Co. v. Brandtmaier, 113 Pa. 610; Pennsylvania R. R. Co.’s Case, 213 Pa. 373. The learned trial judge was of the opinion, and so instructed the jury, that if the boy had been above fourteen years of age, his contributory negligence would have been a bar to the plaintiff’s recovery, but inasmuch as the boy was under fourteen, he felt compelled to submit to the jury the question of his mental capacity and ability to be guilty of such contributory negligence as would have prevented his recovery, if he had been injured and survived.

In Bracken v. Penna. R. R. Co., 32 Pa. Superior Ct. 22, we held : “ the boy was only twelve years old and the court could not say, as a matter of law, that he had sufficient mental development and capacity to comprehend the danger so that he would be guilty of contributory negligence, although an adult might have been in the same circumstances. . . . And the question of his capacity and understanding to be sensible of danger, and to have the power to avoid it, was one of fact to be disposed of by the jury, under proper instructions from the court: Nagle v. Allegheny Valley R. R. Co., 88 Pa. 35; Kelly v. Traction Co., 204 Pa. 623; Crissey v. Hestonville, etc., Pass. Ry. Co., 75 Pa. 83.” To which authorities the following may be added: West Phila. Pass. Ry. Co. v. Gallagher, 108 Pa. 524; Byron v. Central R. R. Co., 215 Pa. 82, where it was said by Mr. Justice Elkxk (p. 86) : “ The boy being under fourteen years of age, the presumption of incapacity to appreciate the danger arose and was not so conclusively overcome by the testimony offered at the trial as to justify a court in holding as a question of law that he was guilty of contributory negligence. We see no reason, either in fact or law, to distinguish the case at bar from the long line of cases in wdiich this rule has been recognized and followed in our state. This was also a question of fact for the jury. The learned trial judge in a careful, adequate and well considered charge, submitted the case to the jury where it belonged.”

So we say as to the case at bar. Upon all the questions raised by the assignments of error, the learned trial judge properly and carefully submitted them to the jury and the evidence is sufficient to support the verdict.

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


author: Per Curiam,

text:
    Freeport Borough, Appellant, v. Robert Miller Estate.

      Road law — Municipal lien — Paving—Misnomer of county — Character of work — Completion of work — Confirmation of assessments.

    A municipal lien filed by a borough against a decedent’s estate for paving a street misnamed the county in which the borough was situated. The lien was for a lump sum, and did not set forth the kind and character of'the work done, otherwise than that it was “ grading, paving and curbing;” nor did it set forth the name of the owner at the time the lien was filed, otherwise than as “ the Robert Miller Estate.” On exceptions the lien was stricken off. Held, by an equally divided court, that the order striking off the lien should be sustained.
    Argued May 13, 1907.
    Appeal, No. 53, April T., 1907, by plaintiff, from order of C. P. Armstrong Co., March T., 1905, M. L. D., No. 3, striking off lien in case of Freeport Borough v. Robert Miller Estate.
    Before Rice, P. J., Henderson, Orlad y and Braver, J.J.
    Affirmed.
    Motion to strike off lien.
    The lien was as follows :
    The borough of Freeport, a municipal corporation, created by and existing under the laws of the commonwealth of Pennsylvania, files this, its claim and lien against the Robert Miller estate, owner or reputed owner, for the sum of $128.25, with interest thereon from August 18, 1904, and against all that certain lot or piece of ground situate in the borough of Free-port, county of Allegheny, and state of Pennsylvania, bounded and described as follows :
    Beginning at a point on the northerly side of Market street distant eighty-eight and five-sixths feet eastwardly from the northeast corner of Market and Fourth streets in said borough; thence, eastwardly along the northerly side of Market street forty-five feet to a point; thence, northwardly at right angles to said Market street 159 feet, more or less, to an alley; thence westwardly along the southerly side of said alley forty-five feet to a point; thence, southwardly 159 feet, more or less, to a point, the place of beginning. Having erected thereon two two-story frame dwelling houses with outbuildings.
    The said sum of $105.45, with interest thereon from the date aforesaid, is claimed to be due for the grading, paving and curbing of Market street in front of the said lot or piece of ground, which said grading, paving and curbing was duly authorized and directed to be made and done by the burgess and town council of the borough of Freeport, by ordinance approved September 7, 1903, and recorded in ordinance book, page 225.
    That the said assessment for the improvement aforesaid was finally confirmed by the said burgess and town council of the borough of Freeport, by ordinance approved on----1904.
    That the last work was done tipon the said improvement upon August 18, 1904.
    That the said borough of Freeport files this, its claim or lien, under and by virtue of the provisions of the following acts of assembly, to wit: the Act relating to the paving and curbing of streets in boroughs approved April 23, 1889, P. L. 44; and the Act'relative to liens for municipal improvements approved June 4, 1901, P. L. 864, and by virtue of the said ordinance of the borough of Freeport approved as aforesaid.
    The following exceptions to the lien were filed:
    And now, to wit: March 5,1906, Martha A. Shirley, administratrix, c. t. a., of the estate of Robert Miller, late of Free-port borough, deceased, appears especially for the purpose of making and presenting to the court the following motion, and by her attorneys, McCain and Christy, moves the court to strike off the municipal claim, filed at the above number for ■ the following reasons :
    1. The plaintiff seeks to file its municipal claim against the estate of Robert Miller, owner or reputed owner, and against all that certain lot or piece of ground in the borough of Free-port, county of Allegheny and state of Pennsylvania, bounded and described as follows: (here follows a description of the lot.) The first paragraph in said claim as filed by plaintiff, is irregular and void in setting forth the property in Allegheny county, and in seeking a lien against the estate of Robert Miller, without setting forth the owner of said lot described in said claim.
    2. The said claim is void because it does not set forth the name of the owner of the property against which said.claim is filed, as required by the second subdivision of section 11 of the Act of 1901, P. L. 364. The will of Robert Miller, deceased, on record in the register’s office of said county of Armstrong, shows who was and is the owner of said described property, now and at the time of the making of the improvement and the filing of said claim.
    3. The said claim is irregular and void, for the reason that it does not set forth the kind and character of the work done for which the claim is filed, and the requisite notices, as required by the seventh subdivision of the eleventh section of the said Act of 1901, P. L. 364.
    4. The said claim does not set forth the date on which the work was completed in front of the property against which a lien is claimed ; nor the date of the completion of the improvement, nor the date of confirmation thereof.
    5. The claim is too vague and indefinite to attach as a lien upon the property described, and the court is without jurisdiction to adjudicate the rights of the parties on the sci. fa. issued.
    Patton, P. J., filed the following opinion :
    The first exception is that the claim for the lien filed described the property as situate in the borough of Freeport and county of Allegheny. If this was the only objection to the lien we might treat it as a slip of the stenographer, and allow it to be amended by taking judicial notice that the borough of Freeport is in the county of Armstrong. However, we are not sure of this position. It has been held in road views that a mistake of the viewers in misstating the township in which the road is located, is fatal. Plowever, as we are compelled to sustain other exceptions, we will sustain this one.
    The second exception is that the claim is filed against “ Robert Miller Estate.” The Act of June 4, 1901, P. L. 364, sec. 7, provides that the word “ owner” as used in the act means “ the person or persons in open, peaceable and notorious possession of the property as apparent owners thereof, if any, and if not, then the reputed owner or owners thereof, in the neighborhood of such property.”
    The act points out clearly against whom the lien should be filed. An inquiry at the house would determine if any person in possession was claiming to own the property, or if not the lease would determine from whom the party in possession was claiming under. If no person was in possession, then sec. 18 of the act points out the method to find out the real owner of the property. As a usual thing there is no difficulty in finding out the heirs or devisees of a person dying seized of real estate in a municipality. We know of no act of assembly, and none has been called to our attention, authorizing the filing of a lien against the estate of a decedent, without naming the owner, or reputed owner, at the time the lien is filed. The exception is sustained.
    The third exception that the claim does not set forth the kind and character of the work must also be sustained. The eleventh section of the act of 1901 declared that the claim shall set forth “ the kind and character of the work done.” The claim filed sets forth that the amount due is “ for the grading, paving and curbing of Market street in front of the said lot or piece of ground.” In City of Philadelphia v. Sutter, 80 Pa. 53, it is said that “ municipal claims require substantially the same precision as those of mechanics and material men.” The lien in that case was stricken off because from the face of the claim it could not be discovered whether it was for paving the roadway or the footway. The same can be said of the claim before us. In the case of Meadville City v. Ma-honey, 28 Pa. C. C. Rep. 474, which was a lien filed under the act of 1901, the lien was stricken off because the plaintiff’s claim was not fully set forth. We think the claim should at least set forth the number of feet of grading, paving and curbing and the price of each, if separately assessed, and the nature and character of the materials used, the date the work was completed, when notice was given of the assessment, and from what day interest is claimed, and whether or not the attorney’s commission is included. The claim filed in this case is for a lump amount, and it would be impossible for a defendant to know whether it was right or wrong without going outside of the record for his information. In the case of the City of Erie v. Willis, 26 Pa. Superior Ct. 459, is a statement of what shall be contained in the claim for a lien. We are also of the opinion that the fourth exception is well taken.. The claim sets forth that the improvement was confirmed by the burgess and town council on the day of , 1904,
    and that the last work was done upon the improvement on August 18, 1904. But these are not what the eleventh section of the act requires, as a reading thereof will readily show. The fifth exception is also sustained.
    In conclusion we may say that the whole proceeding is one of statutory creation, and the creditor who seeks to avail himself of it must bring his case within the letter of the law. We think it is now too late to amend the claim: McFarland v. Schultz, 168 Pa. 634 ; Meadville City v. Mahoney, 28 Pa. C. C. Rep. 474.
    The Court: And now, May 11, 1906, the lien is stricken off.

      Errors assigned were in sustaining exceptions to the lien.

      John 31. llalsiou, for appellant,
    cited: Pearce v. Langfit, 101 Pa. 507 ; Stroudsburg Borough v. Brown, 11 Pa. C. C. Rep. 272; Wistar v. Phila., 86 Pa. 215 ; Reece v. Haymaker, 164 Pa. 575 ; Pittsburg v. Cluley, 66 Pa. 449 ; Phila. v. Meighan, 15 Pa. Dist. Rep. 10; Erie City v. Willis, 26 Pa. Superior Ct. 459.
    October 7, 1907 :

      W. J. Christy, for appellee,
    cited: Erie City v. Willis, 26 Pa. Superior Ct. 459 ; Philadelphia v. Richards, 124 Pa. 303; Philadelphia v. Sutter, 30 Pa. 53 ; Meadville City v. Mahoney, 28 Pa. C. C. Rep. 474.
   Per Curiam,

The judges of this court who heard the argument of this case being equally divided in opinion the order is affirmed.