author: Per Curiam,

text:
    Elsbree, Appellant, v. Keller.

      Taxation — Cash road tax — Bradford. county-r-Statutes — Repeal—Acts of March 30,1846, P. L. 199, and April 12,1905, P. L. 142.
    The local Act of March 30, 1846, P. L. 199, applicable to Bradford county, is not repealed by the Act of April 12, 1905, P. L. 142, and under the former act a cash road tax may still be levied in Bradford county. :
    Where an estimate for a cash road tax under the Act of March 30, 1846, P. L. 199, applicable to Bradford county, was duly adopted,-and a levy made thereon, the fact that the estimate was not entered in the town- book, and signed by the commissioners, will not invalidate the proceedings for the collection of the tax.
    Argued Nov. 22, 1907.
    Appeal, No. 198, Oct. T., 1907, by-plaintiff, from decree of C. P. Bradford Co., May T., 1907, No. 2, dismissing bill in equity in case of J. L. Elsbree v. Ed. F. Keller et al., Supervisors.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Fanning, P. J., filed the following opinion.
    This case came on to be heard July 24, 1907, at which time arguments were heard and later additional briefs submitted. The facts briefly stated are as follows:
    1. J. L. Elsbree, the plaintiff in this action, is the owner in fee of real estate situate in Athens township.
    2. Ed. F. Keller, M. E. Knight and John W. Rogers are road supervisors of said township, and James P. Campbell, the collector of taxes.
    3. At the municipal election held February 20, 1906, the question of changing the system of taxation for working the public roads'in the township of Athens and abolishing the work tax therein was submitted to the electors of said township and defeated, a majority of whom voted adversely to such proposed change.
    4. This paragraph of plaintiff’s bill avers: “That notwithstanding that a majority of the electors of said township voted against abolishing the system of taxation for worldng the public roads, the supervisors aforesaid have levied a cash road tax for the year 1906 for the purpose of mantaining highways in said township, and have refused to allow the taxpayers of said township to work out any part of-the same.”
    The entry in the secretary’s book relating to the levy reads as follows: “March 12th, 1906, Supervisors met with town auditors and completed commissioner's account for year 1905; and made annual statement for same, also appointed 13 Road-masters for the township, and divided the township in new districts, and levied a three mill work tax and seven mill cash tax, and made annual statement to state highway commissioner at Harrisburg.”
    The three mill work tax has been worked out and is not in question. It is conceded that two of the seven mills were levied for the purpose of paying the proportionate share of Athens township for the construction of a state road from the Chemung river .bridge to the Ulster township line. This tax has been paid. The contention relates solely to the remaining five mills, which plaintiff contends was levied as a cash road tax unauthorized by any act of assembly, and, therefore, uncollectible:
    5. A warrant covering the work and seven mill tax was placed for collection in the hands of J. I. Morley, treasurer of Athens township, who caused notices to be sent to the respective taxpayers in form as follows:
    “Treasurer’s Tax Notice.
    “To................................
    “You are hereby notified that the Supervisors of Athens township have assessed against you for road purposes for the year 1906, the following taxes:
    Cash Tax................................... $.........
    Work Tax................................... $........,
    Per Capita Tax.............................. $.....1.00
    Total............... $.........
    “You will be allowed an abatement of five per cent, upon all taxes paid me on or before June 1st, 1906. You will be required to pay the full amount of the cash tax, assessed against you, if paid between June first and November first, of this year. All cash taxes not paid by November first of this year must be paid to the Township Tax Collector who will add five per cent, thereto as a penalty. The work tax may be worked out as heretofore; and notice of the time and place for working out said tax will be given you by one of the Road Masters of the Township.
    “J. I. Morlet.
    “April 30,1906.”
    Pursuant to these notices many taxpayers paid in full the five mill tax in controversy. No opportunity was given to work the same out. The plaintiff declined to pay and the collector, by virtue of a warrant placed in his hands by the supervisors of the township, made a levy on certain of his personal effects and advertised the same for sale. Proceedings were stayed by injunction pending the disposition of the bill in equity.- ■ The notices and receipts would appear to indicate that the five mill tax was regarded by the treasurer and collector as a cash tax for road purposes, and this might be the legal inference but for the testimony of the supervisors, to which attention will later be called. Notwithstanding this testimony, however, it is urged on behalf of the plaintiff that this was in fact a cash road tax and unauthorized by the act of 1905. The views of counsel for defendant are not in harmony, the one contending with great earnestness that even though of this character, viz.: a cash road tax, it is collectible as such; the other, that the tax was authorized by the Act of March 30, 1846, P. L. 199, applicable to Bradford county, and, therefore, lawfully assessed and enforceable. Under the act of 1905 no taxes other than for road purposes can be lawfully levied. Whether it authorizes the assessment and collection of a cash tax in addition to a work tax is a question upon which there has been much discussion and diversity of opinion. The cases of Baldensperger v. Aman, 16 Pa. Dist. Rep. 299, and Ackerman v. Plainfield Township Supervisors, 16 Pa. Dist. Rep. 661, indicate, however, that under this act, where the system of taxation has not been changed and the work tax abolished, an opportunity must be given the taxpayer to work out the tax for which he is rated. Such apparently is the provision of sec. 2, which is substantially the same in this regard-as sec. 34 of the act of April 15, 1834, in construing which it was held in Miller v. Gorman and Preston, 38 Pa. 309, and Childs v. Brown Township, 40 Pa. 332, and other cases, that the opportunity to work out such taxes is a condition precedent to the right of collection by legal process. However this may be in other counties, it is not necessary here to decide. The question at issue, we think, is capable of solution under the act of 1846, •which provides, inter alia, that the commissioners of roads and highways of each of the several townships in the county of Bradford, are authorized and required to make an estimate annually of the probable expenses of the respective townships for the ensuing year, which, in their judgment, will be required for various purposes, to wit: for the support of the poor (now otherwise provided for) : for pay of commissioners of roads and highways; for pay of township auditors; for pay of township treasurer; for pay of town clerk; for pay of collector of township taxes.
    Also for pay of any other officer, or officers, who may be entitled to compensation out of the funds of said township.
    Also for books and stationary and-other incidental expenses, and for furnishing materials and implements for keeping roads and bridges in repair, and the amount of township debts (if any such exist), as nearly as the same can be ascertained.
    The act of 1905 repeals only such acts or parts of acts, general or local, as are inconsistent with its terms. It was held in Baldensperger v. Aman, 16 Pa. Dist. Rep. 299,. that existing laws relating to the creation of indebtedness of townships for the purpose of improvements, etc., providing for the payment thereof by taxation, and the various acts now in force for levying of cash road taxes, are not repealed thereby. The Bradford county local act, we think, is still in force. In fact this is conceded by attorneys for the plaintiff. It is not expressly repealed by the general act of 1905. It is not inconsistent with the authority conferred by the local law to levy a cash tax for township purposes.
    It appears, and is not controverted, that an estimate was made by one of the-supervisors on the day of the meeting, in which he stated the amount of tax, which, in his judgment, would be required for the purpose of bridge and other materials, machines, and implements at three mills; for payment of road masters and other town officers, one mill; township indebtedness shown to be $945, one-mill; proportion of cost of state road, two mills, making a total of seven mills. This estimate, together with a three mill work tax, was reduced to writing and submitted to the board at their meeting and, after due consideration, was adopted. Upon this as a basis the levy was made. This estimate though placed in the hands of the secretary, through some inadvertence, was not entered in the town book. This omission and the failure of the commissioners to sign the same, inasmuch as a levy was made pursuant to the estimate, would not, we think, constitute such a failure to comply with the act of 1846 as to invalidate the proceedings for collection of the five mill tax. The record, even at this date, we think, could be completed in order to conform to the facts. The provisions of the act of 1846 are sufficiently broad to cover all purposes for which the five mill tax, as shown by the testimony, was levied. It is true the act last cited requires that the warrant for the collection of cash taxes be placed in the hands of the collector. The warrant in this case in the first instance was given to the township treasurer. However, at the time of the institution of these proceedings, the warrant was in the hands of the collector, to whom it had been certified for collection by the proper authority, viz.: the supervisors. These irregularities were occasioned by the uncertainty existing and the diversity of views relative to the proper mode of procedure following the passage of the act of 1905. The tax was authorized by statute, levied by the proper authorities, and it would be inequitable by reason of the omission to make the proper entry in the books and the irregularities to which reference has been made, to declare the levy invalid, and particularly so as the greater proportion of the tax has already been paid by the property owners of the township. To restrain the collection of these taxes at this time would work great injustice.
    In the bill, as originally filed, the complaint was in brief that the supervisors could not levy a cash road tax, and it was not until after the filing of an answer by the defendants, that any objection was made to the irregularity of the proceedings under the act of 1846. Nor is it alleged that any injury has been sustained by reason of such irregularities. There was certainly an honest effort by the supervisors to inform themselves and comply with statutory provisions. That their proceedings should be in all respects technically accurate is more than can reasonably be required.

      February 28, 1908:
    It was well said, referring to supervisors, by Yerkes, J., in Williams v. Wright et al., 6 Pa. C. C. Rep. 497, “ They are important and useful public officials and are not elected to office with a view to the solution of intricate questions of law, but because of the sound judgment and honesty they are expected to possess.” The same principle is recognized in Miller v. Gorman & Preston, supra.
    And now, October 24,19.07, the injunction heretofore granted is dissolved and the bill dismissed at the cost of plaintiff.

      Error assigned was the decree of the court.

      L. T. Hoyt, of Hoyt & Schrier, for appellants.

      H. F. Maynard, with him Lilley & Wilson, for appellees.
   Per Curiam,

We concur with the learned judge below in the conclusion that the local Act of March 30,1846, P. L. 199, was still in force and that, notwithstanding the irregularities, the levy of the cash tax can be sustained thereunder; further, that there is nothing in the pleadings to prevent the decree being based thereon. These conclusions are so well supported by the findings and opinion of the learned judge below that we deem it unnecessary to add anything further to the discussion.

The decree is affirmed at the costs of the appellant.


source: Caselaw Access Project

author: Morrison, J.,

license: Public Domain

text:
    Sailor Planing Mill & Lumber Company, Appellant, v. Moyer.

      Attachment under fraudulent debtors’ act — Intervention—Parties— Discretion of court — Interlocutory order — Appeals—Acts of March ,17, 1869, P. L. 8, and May 24,1887, P. L. 197.
    An order permitting a pérson to intervene in an attachment under the fraudulent debtors’ Act of March 17,1869, P. L. 8, and its supplement, is within the discretion of the court; but the intervenor will be restricted to such course only as may be necessary to protect his own interest. He will not be permitted to raise technicalities and strike down the action.
    The intervene^ must take the suit as he finds it. He is bound by the record of the case at the time of his intervention. If he claims property in controversy, he can interfere only so far as it is necessary to prove his right to'it. '
    An order permitting a person to intervene in an attachment under the fraudulent debtors' act is not a final order from which an appeal lies; but an order dissolving the attachment where the defendant has not been served and has not appeared, ends the suit, and from such an order the plaintiff may take an appeal.
    Argued Dec. 3,. 1907.
    Appeal, No. 62, Oct. T., 1907, by plaintiff, from order of C. P. Schuylkill Co., Jan. T., 1903, No. 118, dissolving attachment in case of the Sailor Planing Mill & Lumber Co. v. Horace M.'Moyer.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.'
    Rule to dissolve attachment. Before Marr, J.
    The opinion of the Superior Court states the case.

      Errors,assigned were as follows:
    1. Court erred in mailing the following order and decree, to wit: ,
    And now, September 24, 1906, it is herewith ordered and directed that the said Sallie Esterly, executrix, etc., and Wm. F. Stitzer be permitted to intervene and defend in above referred to writ as prayed for in accordance with this order of court and for the reasons heretofore given in the case of No. 228, January T., 1902.
    2; ¡Court erred in making the following order and decree:
    And now, February 18, 1907,.the rule to show cause why the attachment should not be dissolved is herewith made absolute and the attachment-is herewith dissolved.

      Edmund D. Smith, with.him Arthur J. Pilgrim, for appellant.
    —The order of intervention was improperly made: Jones v. Winans, 20 N: J. Eq.' 96; Thistle Mills v. Watson, 2 Pa. C. C. Rep. 271; Elberman v. Bloom, 10 Pa. C. C. Rep. 413; Coleman v. Martin, 6 Blatch. 119; Mellor v. Burkert, 22 Montg. County Law Repr. 58.
    February 28, 1908:
    The appellant claims that the court erred in permitting the interveners to move to dissolve and erred in dissolving the attachment: Wightman v. Evanston Yaryan Co., 217 111. 371 (75 N. E. Repr. 502).

      H. 0. Bechtel, for appellee,
    cited: Flagg v. Mitchell, 5 Pa. Dist. Rep. 774; Wightman v. Henry, 1 W. N. C. 74; Fernau v. Butcher, 18 W. N. C. 270.
   Opinion by

Morrison, J.,

This suit was commenced by an attachment under the fraudulent debtors’ Act of March 17, 1869, P. L. 8, and the amendatory Act of May 24, 1887, P. L. 197. The writ was executed by attaching effects of the defendant in the hands or possession of the Philadelphia and Reading Railway Company, and summoning it as garnishee. The defendant was not served, and thére was never any appearance by or for him entered in the case. Therefore, by the plain terms of the act of assembly, and the decisions thereunder, dissolving the attachment, by the court, would end the suit.

The first assignment of error is in effect that the court erred in permitting Sallie Esterly, executrix, etc., and William F. Stitzer, to intervene and defend in the said case. We do not think this assignment can be sustained, because it was in the discretion of the court, on their’ averment of interest in the subject-matter of the suit, to make the order permitting the parties named therein to intervene for the purpose of protecting their interests which might be affected by the result of the suit. But if the court was not warranted in making the intervening order, it belongs to a class of interlocutory orders, not final, which cannot be reviewed on appeal till the suit is tried and a final judgment entered in the court below. The plaintiff has his exception to the order and if he should appeal from the final judgment, the granting of said order ' can then be considered and passed upon by the appellate court. The first assignment is not sustained.

As to the order of February 18, 1907 (second assignment), we take a different view. As has already been said, the defendant was not served and he never appeared, and, therefore, the dissolution of the attachment ended the suit. The ground on which the court dissolved the attachment was the showing by the interveners that the defendant had committed no acts of fraud sufficient to sustain the attachment. The suit being ended and the plaintiff put out of court by the order of February 18, 1907, he had a right to appeal and have the legality of that order reviewed by this court: Franklin Coal Co., Limited, v. Pennsylvania Water Co., 25 Pa. Superior Ct. 628, and cases there cited.

We do not think the interveners had the right to procure the dissolution of the attachment, thus ending the suit. “The intervener must take the suit as he finds it. He is bound by the record of the case at the time of his intervention. If he claims property in controversy, he can interfere only so far as it is necessary to prove his right to it:” 17 Am. & Eng. Ency. of Law (2d ed.), 185; 11 Ency. Pl. and Pr. 509.

If the defendant had, without collusion, appeared, admitted the fraud alleged, and the validity of the debt, his sureties would not have been permitted to attack the judgment against him, except for fraud in obtaining it. We have been referred to no authority satisfying us that the learned court could lawfully permit the interveners to come into the case for the purpose of raising technicalities and striking down the action. The plaintiff had the right to select a defendant and proceed against him to the end, notwithstanding technical objections raised by persons strictly strangers to the suit and only permitted by law and practice to intervene to protect their interests in property or assets which might be injuriously affected by the final result of the suit. We will not pass upon the merits of the attachment at this time, and, therefore, much of the appellee’s argument will not be noticed. The learned counsel for appellee cites Wightman v. Henry, 1 W. N. C. 74, and Fernau v. Butcher, 18 W. N. C. 270, to sustain the court in dissolving the attachment on the ground that no fraudulent act was established against the defendant. But in both of those cases, the defendants appeared and rebutted the alleged fraudulent acts relied on by the plaintiffs. Moreover, in Fernau v. Butcher there was a personal service, and dissolving the attachment did not end the suit as was said by the Supreme Court in the case.

We are constrained to sustain the second assignment of error and send the case back to be tried on its merits as to whether, the plaintiff or the interveners have a right to the attached property or fund in the hands of the garnishee.

Judgment reversed and procedendo awarded.


author: Beaver, J.,

text:
    Smith, Appellant, v. Cheltenham Township.

      Road, law — Township of the first class — Change of grade — Damages Act of April 28,1899, P. L. 104.
    A township of the first class is not liable for damages to an abutting property occasioned by the change of grade of an existing highway within the limits of the township.
    Argued Dec. 3, 1907.
    Appeal, No. 87, Oct. T., 1907, by plaintiff, from judgment of C. P. Montgomery Co., Oct. T., 1906, No. 51, for defendant non obstante veredicto in case of Michael A. Smith v. Cheltenham Township.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages to real estate resulting from change of grade of a road.
    Verdict for plaintiff for $665. Subsequently the court entered judgment for defendant non obstante veredicto.
    Swartz, P. J., filing the following opinion:
    At the June sessions, 1889, the report of a jury of view laying out a public road in Cheltenham township was confirmed absolutely. The new highway was called Franldin avenue. In the latter part of the year 1889, the supervisors of the township started to open the road. An improvement company owned the land through which the road was laid out. This company agreed with the supervisors that it would build a bridge over a small water course where the same crosses the new highway. A very steep hill begins at the creek and the plaintiff’s property fronts on the road near the summit of this hill. In 1889 and 1890 the bridge was built. The supervisors cut down the hill at some points, as much as four feet. In front of the plaintiff’s property the cut was two or three feet. The township placed 'about one foot of dirt upon the bridge. It also opened side gutters and made the surface of the road in a passable condition for travel, although the grade of the hill remained so steep that few teams passed up the ascent. The grade was about twenty per centum. This was the condition of the highway in 1890. The supervisors repaired the highway from year to year and kept it in a passable condition for use, although the steep grade of the hill remained.
    The road continued in this condition for thirteen or fourteen years. The plaintiff built a house on his lot in 1894. The title to the lot was acquired in 1893 — that is, after the date of the work aforesaid on the highway in 1889 and 1890.
    By the Act of April 28,1899, P. L. 104, Cheltenham township became a township of the first class, and was organized as such in 1900.
    The township commissioners through their supervisors or workmen cut down Franklin avenue and thereby secured a better grade for the highway. This work was done between September, 1903, and November, 1905. In front of the plaintiff’s property the road was cut down or lowered about eight feet, including the cutting in 1890.
    The plaintiff brought his action in trespass to recover damages for the injury sustained in changing the. grade of the highway in front of his property. We submitted to the jury the question whether, under the evidence, the work done in 1903 to 1905 was the opening of the road or whether it was a change of grade from the opening in 1890. Counsel for the township contended that the road was not effectually opened.as required under the law until the work ended in 1905 — that the work in 1903 to 1905 was no more than the effectual opening of the highway. The jury under- our charge found that, the road was opened in 1890 and that the work, thirteen years later, was a change of grade.
    Two questions-arise, first, was there any evidence to be submitted to the jury of a change of grade by the township, and, secondly, if there was. a change of grade is the township liable for any damage that the plaintiff’s property sustained?
    If Franklin avenue were a street in a borough, the change made thirteen years after it was opened to travel, would constitute a change of grade, under the Act of May 24, 1878, P. L. 129: New Brighton Boro. v..United Presbyterian Church, 96 Pa. 331; Hendrick’s Appeal, 103 Pa. 358. Franklin avenue was opened in 1890. Considerable work was done upon the highway by the supervisors. The surface grade was changed at some points as much as four feet; a bridge was built to accommodate the public travel; the road was repaired from year to year, just as any other public road in the township. This condition continued for thirteen years when the road was lowered in front of the plaintiff’s property some five or six feet, so that it is now eight feet below the original surface grade. During the thirteen years there was no proceeding to compel the supervisors to cut down the grade of the hill so as to make it convenient for travel.
    While in the ordinary acceptation of the term, the jury, no doubt, was correct in finding that there was a change of grade, still it is evident that this highway was not opened in 1890, so as to provide a road convenient for public travel. The grade was left so steep that teams could not use it for the ordinary purposes of hauling. This is self-evident with an admitted grade of twenty per centum. “Whenever practicable the viewers shall lay out a road at an elevation not exceeding five * degrees (except at the crossing of ravines and streams) where by moderate filling and bridging the .declination of the road may be preserved within that limit.” - •
    What the township commissioners did in 1904 was no more than a reduction of the grade of this 'Steep hill. It is usual and ordinary for township supervisors to improve the grade of public roads as the demands of travel increase. A grade that is adequate in a sparsely settled community and where there is but a slight demand for the use of the road, may become entirely inadequate in time by reason of the changed condition of the neighborhood. In such cases it is usual for the supervisors to meet the advanced needs by improving the highway. The supervisors must keep the roads “ constantly in repair, and clear of all impediments to easy and convenient passage and travel.”
    The supervisors make proper grades from time to time and this is considered an incident to the keeping of the roads in repair and convenient for passage and travel. Where such change of grade is made by townships of the second class, no action lies against the township by an abutting owner for the injury sustained: Shoe v. Nether Providence Township, 3 Pa. Superior Ct. 137. Whatever grade maybe fixed by the supervisors is largely a matter of discretion with them and so long as the grade is changed to conform to the requirements of the general road law, an.abutting owner has no cause of complaint; his damages that were assessed when the road was laid out include all injury sustained by the subsequent change of grade: Wagner v. Salzburg Township, 132 Pa: 636; Winner v. Graner, 173 Pa. 43; Shoe v. Nether Providence Township, 3 Pa. Superior Ct. 137.
    When the road is laid out in a township of the second class this rule is well established.
    Franklin avenue when laid out was located in a township of the second class. The township continued of that class for more than ten years thereafter. If the damages when the road was laid out then covered the necessary grading of the highway, we do not see why the change in the classification should give an abutting owner a duplication of his damages.
    There is no evidence that the township commissioners by ordinance or by any other formal action fixed a new grade for Franklin avenue. When they cut down the hill they did so to improve the highway, for travel and passage. Had the township continued in the second class, the supervisors, no doubt, would in time have made the same improvement in the grade of the hill.

      Suppose, however, this was a change of grade as found by the jury under our charge and such change of grade was made by a township of the first class, is the plaintiff entitled to recover? Is there such a difference in the organization and standing of townships of the first and second class regarding public roads and changes in grade, that there is a liability for damages by the one class and not by the other?
    We think this inquiry is answered by the Act of April 28, 1899, P. L. 104, which makes the classification. Section 3 declares, “Except so far as modified by the provisions of this act, all existing laws relating to townships shall continue in force until changed, modified or repealed, as to either class of townships, by legislation relating expressly thereto.” In Dempster v. United Traction Co., 205 Pa. 70, the court,, in speaking of townships of the first class, declared, “The act of classification does not attempt to create a hybrid borough, neither township nor borough; it obviously intends to preserve the old township organization with all its powers and duties except where it expressly enacts otherwise. ” For many years it was well known that damages for change of grade in a township road could not be recovered, except so far as the original laying out of the road provided a method of recovery for the necessary change in grade. The damages were assessed under the original laying out of the road. We cannot assume that the legislature intended to give a new cause of action without some intimation of a change so radical and so far reaching in its effects upon future road improvement. If every change in a country road brings a new liability in damages, then the road improvements so vigorously pressed at this time must receive a serious set back. But the powers and duties of the old township remain “except where the new law expressly enacts otherwise.” We find no express provision, not even an intimation, that the act contemplates any such radical changes in liability upon the part of a township of the first class. Under the act of 1899 the care of the roads is intrusted to the township commissioners, and their duties are identical with those imposed under the general road law of 1836. Section 9 of the act of 1899, provides, “It shall be the duty of the board of township commissioners to cause all public highways within the township now or hereafter laid out by lawful authority to be effectually opened and constantly kept in repair at all seasons, and clear of all impediments to easy and convenient passing and traveling.” Section 6 of the general road law of June 13, 1836, uses the same words. Under this provision townships have changed the grades of highways upon a demand for easy and convenient passing and traveling and without liability in damages: Shoe v. Nether Providence Township, 3 Pa. Superior Ct. 137. It would seem that the exercise of the same power under like authority by townships of the first class should not impose any greater liability.
    It is true that townships of the first class are invested with some powers that are not possessed by townships of the second class, but so far as the public roads are concerned, the duty of opening, grading and caring for them is practically unchanged by the act classifying the townships. Where an electric railway attempts to occupy the public roads in a township of the first class, it must have the assent of an abutting owner. The commissioners of the township have no greater powers in giving the privilege than supervisors have in townships of the second class. The highways are still treated as ordinary township roads and are not to be considered as borough streets:. Dempster v. United Traction Company, 205 Pa. 70.
    The township commissioners have no authority to lay out a street, nor do they have any veto power should a citizen begin proceedings in the court to lay out a street. Under the Act of June 7, 1901, P. L. 510, they may ordain a street, but only upon the application of the owner through whose land such street may pass, and anyone interested may bring the proceeding into the court, whereupon it is governed by the general road laws. The commissioners have the power to occupy land outside of the public roads where it is necessary to locate sewers upon private property. The township must make compensation. The township also has certain police powers and may pass ordinances to enforce them. It can compel curbing and paving. It is claimed that these powers show that townships of the first class are municipal corporations invested with the privilege of taking private property for public use and that, therefore, they must make just compensation for property taken, injured or destroyed.
    These powers to use private property are so limited that we doubt their sufficiency to bring townships of the'first class within the provisions of article XVI, sec. 8 of the constitution of 1874. They are no more than police powers to safeguard the people of the township. The taking of land for sewers is necessary to protect the people in their health. Townships of the second class have their health boards, invested with large powers where the protection of the people from infectious and contagious diseases is involved. Townships of the second class may enter upon private lands to cut ditches to drain the public roads and they may take materials from such lands to build and repair the public roads. They may even change the course of a stream to protect their roads: Warfel v. Cochran, 34 Pa. 381.
    But if we concede that townships of the first class fall within the constitutional class of municipal corporations invested with the right of eminent domain the question may still arise, did the township of Cheltenham take or injure any property in cutting down the hill on Franklin avenue? Was the consequential damage done by any exercise of the right of eminent domain on the part of the township? In Wagner v. Salzburg Township, 132 Pa. 636,' the court said: “The township does not take the land for a highway. It does not lay out the road. The law imposes on it the duty of opening the road and keeping it in repair, for the benefit of the traveling public, but the duties of the township do not begin until the road has been laid out by proceedings in the court of quarter sessions. The right to sue cannot be rested, therefore, on the constitution.” This was said in an action wherein the claimant endeavored to recover damages for the cutting down of a public highway — for a change of grade. But it is contended that the township is liable although it has no right of eminent domain so far as the public roads are concerned and is not invested with the right to take land for highways. We do not think that the cases cited support this contention. In Chester County v. Brower, 117 Pa. 647, the court said: “It is equally clear that counties do possess the power to take private property to a limited extent in the matter of opening roads and constructing bridges.” That is, the county was liable for the consequential injury because it exercised a talcing in a limited extent when the land was taken for the construction of a bridge, and when the county in fact erected the bridge. So in Hendrick’s Appeal, 103 Pa. 358, it was held that the private lands were appropriated by the borough of Norristown for the use of her streets under the special Act of March 26, 1853, P. L. 228. It was also shown that under a later act no street could be laid out, opened or widened in the borough without the municipal consent was first had. The borough 'had a veto power. In Franklin avenue the township had no part whatever in taking private lands or in laying out the street or highway. The street was laid out as a county road.
    We conclude that the township of Cheltenham in 1904 did no more than grade down •& hill for convenient and easy passing and traveling. If this was a more effectual opening and repair of the highway, or if it was in fact a grading of the road is immaterial, if we are correct, for even if it was a change of grade the township is not liable for any consequential damages the plaintiff'may have sustained by such change of grade.
    If is argued that our conclusion works out a great hardship to the claimant, but this same hardship arises when a township of the second class cuts down a road to make the highway more convenient for the increased needs of travel, and yet there is no remedy in that case for the injured landowner, except so far as his damages for this class of injury was assessed at the laying out of the road.
    It may also be said that the'owner should have considered the situation as he found it and erected his house to meet the improvement that was sure to follow.
    The motion for a new trial is refused, and for the reasons given we now order and direct that judgment be entered for the defendant non obstante veredicto upon the whole record.

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

      February 28, 1908:

      Louis M. Childs, with him Joseph S. Kraiz, for appellant.—
    The appellant submits that this case comes within the scope of the decision of the Supreme Court in Chester County v., Brower, 117 Pa. 647.

      Montgomery Evans, with him John M. Dettra, for appellee,
    cited: Warfel v. Cochran, 34 Pa. 381; Wagner v. Salzburg Twp., 132 Pa. 636; Winner v. Graner, 173 Pa. 43; Shoe v. Nether Providence Twp., 3 Pa. Superior Ct. 137; Snively v. Washington Twp., 218 Pa. 249.
   Opinion bt

Beaver, J.,

The appellant states the question here involved: “Is a township of the first class liable for damages to an abutting property occasioned by the change of grade of an existing highway within the limits of the township?”

Upon the trial of the case in the court below, the trial judge submitted certain questions of fact to the jury, the verdict being for the plaintiff. Upon a motion for a new trial or for judgment non obstante veredicto, the court entered judgment upon the whole record for the defendant n. o. v. The entry of this judgment constitutes the error assigned.

By the Act of April 28, 1899, P. L. 104, providing “ for the classification of the townships of the commonwealth, with respect to their population, into two classes, and to prescribe the form of government for .townships of each class,” it is enacted in section 3: “Except so far as modified by the provisions of this act, all existing laws relating to townships shall continue in force until changed, modified or repealed, as to either class of townships, by legislation relating expressly thereto.”

We find nothing in the act which changes the liability of a township of the first class as to the change of grade of an existing highway within the limits of a township from that which existed under the Act of June 13, 1836, P. L. 551, and the several supplements thereto.

The action here was trespass to recover damages for the change of grade complained of. There was no liability for damages under the general road laws prior to the adoption of the constitution of 1873. Since that time, it has been expressly decided under Wagner v. Salzburg Twp., 132 Pa. 636, that “Neither the commonwealth nor any municipality through whose territory a public road passes is liable to landowners for damages sustained by them through the exercise of the state’s power of eminent domain in the laying out and opening of the road, until made so by legal enactment: Feree v. Meily, 3 Yeates, 153; and, when a statute gives to landowners a specific remedy for the recovery of such damages, that remedy must be pursued.”

“ A township charged by a local statute with the payment of damages arising from the opening of a public road, under order of the court of quarter sessions, is not a municipal corporation invested with the power of eminent domain within the purview of section 8, article 16 of the constitution, and it incurs no liability to an action of trespass by a landowner for the recovery of such damages.”

This view is later held in Shoe v. Nether Providence Twp., 3 Pa. Superior Ct. 137, and since the trial of this case in Snively v. Washington Twp., 218 Pa. 249.

The question is fully and forcibly argued in the opinion of the court below, upon which the judgment for the defendant, n. o. v., is based, which fully vindicates the conclusion at which the trial judge arrived. We concur with the views therein stated. No useful purpose will be served by a restatement of the arguments therein contained, nor a further citation of the authorities upon which they rest.

Upon the case as presented, we are clearly of the opinion that the township was not liable iti trespass, and that is the only question which it is necessary for us to decide at this time.

Judgment affirmed.'


text:
    Geiser v. Kleckner, Appellant.
    February 28, 1908:

      Judgment — Opening judgment — Evidence—Discretion of court — Finding of facts.

    On a rule to open a judgment where the testimony of the plaintiff and the defendants is at variance, hut that of the plaintiff is corroborated by dates and other circumstances, the appellate court will not review the discretion of the court below in refusing to open the judgment.
    Argued Dec. 4, 1907.
    Appeal, No. 93, Oct. T., 1907, by defendant, from order of C. P. Lehigh Co., Jan. T., 1906, No. 171, discharging rule to open judgment in case of Mary A. Geiser v. Levi H. Kleckner.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court discharging rule to open judgment.

      Lawrence H. Rupp, with him Edwin J. Lichtenwalner, for appellant.

      Thos. F. Diefenderfer, for appellee.
   Opinion by

Beaver, J.,

Appellant, upon calm reflection and under strikingly changed conditions, has doubtless in his own mind good ground for concluding that he had done a foolish thing in giving to the appellee the judgment note upon which judgment was subsequently entered in the common pleas, which he seeks to have opened, so as to allow him to contest the payment of the consideration upon which it was founded.

That there was a good consideration for the note is not denied, and there is no allegation of any kind of fraud or duress in procuring it.

The testimony of the appellant and that of the appellee are strikingly at variance". That of the latter, however, is corroborated by dates and other circumstances which lead to the conclusion not only that credence may, but should be, given to it.

The court finds facts based upon sufficient evidence that the restrictions and so-called “concurrences,” which relate to a note dated May 17, 1904, admittedly destroyed, do not extend to and form part of the contract expressed in the later note dated August 20, 1904, upon which the judgment in controversy was entered, and that the last note was given “absolutely without condition.” These conclusions seem to us to be based upon and fully justified by the evidence and, in view of this opinion, we cannot convict the court below of an abuse of discretion in refusing to open the judgment.

Decree affirmed and appeal dismissed at the costs of the appellant.


text:
    Hughes, Appellant, v. Clark.

      Equity — Fraud—Restraining collection of jvdgjnent — Evidence.
    In a proper case a court of equity will restrain the plaintiff from the collection of a judgment at law, procured by fraud, where it is "clear that the defendant has used due diligence and exhausted every legal means of defense or redress, or has been prevented, without fault of his own, from doing so. The defendant, however, must make out a clear case, and if he fails to do so, or if he knew of the judgment, or was guilty of gross negligence in not ascertaining that it existed, and appealing or suing out a certiorari, equity will not relieve him.
    Argued Dec; 4, 1907.
    Appeal, No. 133, Oct. T., 1907, by plaintiff, from decree of C. P. Northampton Co., Nov. T., 1906, No. 2, dismissing bill in equity in case of Milton A. Hughes v. W. B. Clark.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Scott, P. J., filed the following opinion:
    The material facts I have specifically found in answer to requests, but some brief statement in narrative form will be advisable here. The defendant, above named, sued the plaintiff by the issue of two separate writs of summons on June 1, 1905, before Henry Krauskopf, a’justice of the peace, who died before this bill was filed. One action was in debt; the other was trover and conversion and conversion for detention of a horse. At the return day both parties met before the justice, and his docket, produced in court, shows that judgment was publicly entered against the defendant there in the two cases. No appeal was taken. The transcript of the judgment in debt was subsequently filed in the prothonotary’s office, and a writ of fi. fa. issued from the common pleas, No. 11; November Term, 1906, under which levy was made upon the property of that defendant. The' present complaint, upon which a preliminary injunction was awarded, and then continued until final hearing, is intended to restrain the collection of it indefinitely. The case in trover and conversion was settled before the parties departed from the office of the justice — by the defendant there undertaking to return that day the horse to the plaintiff, which he did. The latter (this defendant) paid the costs of that suit.
    It is the main contention of the plaintiff to this bill, that both suits were then settlecl; that judgment was entered subsequently, by the procurement of the present defendant, of which action he was then, and for a long time afterwards, ignorant, and so deprived of his right to appeal. I cannot find that this is sustained by the proof. There is testimony from two witnesses which, upon first consideration of it, apparently supports the plaintiff, but upon closer examination is not inconsistent with that of defendant here. One of them did not remain all the time, neither did the constable; the other did not hear all the- conversation. It is certain there were negotiations for some kind of settlement, but this is admitted; it is asserted by the defendant that these related altogether to the case of trover and conversion. The horse which was the subject of that suit was returned the same afternoon, and the costs paid as stipulated. Now it is plain from a few observations, that this complainant is mistaken. He says there was but one summons, and one suit (Transcript, pp. 2, 9, 12), but the constable who served the writs, and the record itself contradict this allegation. The defendant then had a counterclaim of set-off against the demand in debt, for payment of most of which the plaintiff produced receipts. It is, however, asserted by him that for the return of the horse, in settlement of the entire dispute, he was to have immediate payment of $165 from the plaintiff; he did not receive it then, and never afterwards to the time of filing his bill in October, 1906, made any request for this money. This is so improbable that it cannot be accepted as consistent with these alleged terms of settlement. To which must be added the fact that he was notified in January following, he must pay this judgment and that written demand was also sent by defendant’s counsel, April 10, 1906 (Ex. No. 3). He took no steps to dispute it, until after execution was issued in October. The plaintiff avers it was not then entered while the parties were present; the defendant says it, was, in which he is supported by the presumption that the justice’s docket speaks correctly; and there is no other direct evidence. The right to enjoin in equity the enforcement of unjust judgments, when the proven facts justify it, is clear enough. But no such case is presented here. Assuming the circumstances attending the entry of it existed, as the plaintiff now maintains, his right of appeal was not lost, if application were promptly made after knowledge was acquired: Mcllhaney et al. v. Holland, 111 Pa. 634. Neither was the remedy by certiorari gone: Laeock v. White, 19 Pa. 495. When the merits of the original cause of action may yet be the subject of review, or the right has been lost by laches, a court of equity will not entertain jurisdiction to enjoin execution on the judgment.
    Now, May 13, 1907, this cause came on to be heard, and was argued by counsel; after consideration thereof, it is adjudged and decreed that plaintiff’s bill be dismissed with costs.

      Error assigned was the decree of the court.

      Herbert F. Lavh, with him J. Willard Paff, for appellant.

      Edward J. Fox, with him Alex. N. Ulrich, for appellee.

      February 28, 1908:
   Opinion by

Morrison, J.,

The appellant filed his bill in October, 1906, to restrain the appellee from the collection of a judgment entered against appellant by a justice of the peace, in June, 1905. A transcript of the justice’s judgment had been entered in the common pleas and a fi. fa issued for its collection.

The record discloses nine requests for findings of fact, five for conclusions of law, fifteen exceptions and fourteen assignments of error, on the part of the appellant.

On full hearing the learned court below dismissed the bill, filing with the decree an opinion fully vindicating the decision.

We have carefully read and considered all of the evidence and it falls far short of presenting a case warranting a court of equity in restraining the collection of a judgment at law. We consider the evidence convincing that the appellant was sued before the justice in two suits, returnable on the same day; one suit in trover and conversion, and the other one in debt or assumpsit. That the trover suit was settled and a judgment of $177 was, on the return day, entered against the appellant in the other suit; that he was present in obedience to a summons in that case duly served, and he never took an appeal or certiorari. His evidence, in the equity suit, that there was any trick, fraud or deception practiced in procuring said judgment is too loose and unsatisfactory to warrant a chancellor in restraining its collection. On the other hand, the regularity of the judgment is sustained by the record of the justice; the testimony of the constable who served the summons and was present at the trial, and by the clear and positive testimony of the appellee in the equity suit, plaintiff in the suit at law.

There is no dispute about the law in the present case. Counsel for appellee concedes that in a proper case a court of equity will restrain the plaintiff from the collection of a judgment at law, procured by fraud, where it is clear that the defendant has used due diligence and exhausted every legal means of defense or redress, or has been prevented, without fault of his own, from doing so: Althouse v. Hunsberger, 6 Pa. Superior Ct. 160; Given’s Appeal, 121 Pa. 260.

The appellant was summoned and appeared before the justice and he either knew the judgment, was entered against him or else he was guilty of gross negligence in not ascertaining that fact, and appealing or suing out a writ of certiorari, if aggrieved by the judgment.

The disposition of the appellant’s bill depended on the facts, and while he was bound to present a clear case he failed to do so, and the evidence, taken as a whole, is strongly against his contention.

The assignments of error are all dismissed and the decree is affirmed, at the costs of the appellant.


author: Henderson, J.,

text:
    Rutt’s Estate.

      Wills — Legacies—Charge on land.

    While the personal estate, as a general rule, is the primary fund out of which legacies are to be paid, yet the testator may direct from what part of his estate the legacies or any of them shall be paid.
    Where a testator gives all of his personal property to his wife absolutely, a power to dispose of $2,000 by will, and a life estate in his realty, and gives to another person a legacy of $600 payable after the death of his wife, and devises his real estate subject to the wife’s life estate, and subject also to the liens, legacies and bequests provided for in his will, the real estate after the death of the wife is charged with the payment of the legacy of $500 in testator’s will, and the $2,000 to appointees under the wife’s will.
    Argued Nov. 13, 1907.
    Appeal, No. 24, Oct. T., 1907, by George O. Rutt and Hettie Rutt, Administrators of the Estate of David Rutt, deceased, and George 0. Rutt, from decree of O. C. Lancaster Co., Oct. T., 1905, No. 6, dismissing exceptions to adjudication in Estate of Henry Rutt, deceased.
    Before Rice, P. J., Porter, ( Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.
    Smith, P. J., stated the facts to be as follows:
    The essential parts of the decedent’s will are as follows:

      “First. Saving excepting and reserving and subject and liable to as herein after mentioned, I give devise and bequeath unto my present wife Elizabeth (her Family name Zimmerman or Carpenter) all and singular the whole of my Personal and Mixed Estate of what kind and nature whatsoever.
    “Section or Item two. I give devise and bequeath unto my wife Elizabeth during her natural life the possession, occupancy, management, control, issue, growth, products, advantages and profits of my messuage and tract of about Twenty-two acres, more or less, of land on which I now live in said Township with all the buildings and improvements thereon and the appurtenances thereunto belonging as I now hold and am the owner thereof. Adjoining the Blue Ball and Churchtown Road late Turnpike road and adjoining the Downingtown, Ephrata and Harrisburg turnpike Road and adjoining lands of my Nephew David Rutt and lands of John S. Wallace and of T. W. Wanner and of Henry Yundt and of Henry Lewis. . . .
    “ 4th. I give and bequeath unto my said wife Elizabeth the right power and authority if she survives me, by her last will and testament or any other writing under her hand and seal, legally executed, to give, bequeath, grant, bargain, sell, bestow,1 or otherwise dispose of as she may think proper the sum of Two Thousand dollars ($2000) to such person or persons as she in her own discretion may think proper and in case of default of her failing in her lifetime to make such bequest grant bargain sell or other disposition of the said sum of Two Thousand dollars or any part thereof in her lifetime then in such case, the said sum of Two Thousand dollars or the part thereof not so as aforesaid disposed of by my wife shall desent to and I give and bequeath the same unto her heirs and legal representatives in the shares and portions and according to the intestate laws of this State in operation or effect at her death as if she had died in possession thereof intestate and unmarried.
    “ 5th. My said wife Elizabeth shall have hold and be entitled • to the devises, legacies and bequests herein before made to her under and subject to, that she shall pay, all my debts funeral expenses and settlement of my Estate, and that she • shall keep and maintain all the buildings fences and improvements upon the said messuage and tract of land on which I now live in constant good order and repair and cause the land to be so cultivated as not to deteriorate or get poorer in production qualities, and my Executors and the survivor shall have and I hereby give them and him authority and control over the said messuage and premises on which I now live (bequeathed to the use of my wife as aforesaid) and to the incomes issues rents and profits thereof as much as may be necessary to carry out this direction.
    “6th. I give devise and bequeath my said lands and Real Estate and all the lands and Real Estate of which I may die seized and owner of unto my Nephews Henry H. Rutt and David Rutt Sons of my brother George Rutt, deceased, one-fourth part thereof, unto Mary Kurtz, Elizabeth Kurtz, and John Kurtz children of my Nephew John Kurtz, deceased, who was a son of my Sister Elizabeth Kurtz, deceased, and widow of Samuel Kurtz, shall have one-fourth part thereof, unto Mary Rutt (single woman, one-fourth part thereof, unto Nancy widow of William Lichty one-fourth part thereof, as tenants in common to his and their respective heirs and assigns under and subject nevertheless to the rights of occupancy and possession and the Rents Issues and profits thereof unto my wife during her life as hereinbefore devised and bequeathed to her and subject and liable also to the liens legacies and bequests and payments to be made therefrom and thereout as herein-before and hereinafter made. ...
    “8th. I give and devise unto the said Lizzie A. Wanner, if she should be living at the time of the death of my said wife the sum of Five Hundred dollars to be paid to her in one year after my wife’s death and if the said Lizzie A. Wanner should be dead at the time of the death of my wife, then to be paid the said legacy unto her heirs and assigns.”
    Exceptions have been filed to the awards of $2,000 to the executor of the will of Elizabeth Eby, who had been Elizabeth Rutt, the testator’s widow, and $500 to Lizzie A. Wanner. “The testator’s intentions are not involved or obscure. They have been clearly expressed. In direct and comprehensive language he gave his whole personal and mixed estate to his wife, subject to the payment of “all my debts funeral expenses and settlement of my Estate.” He died more than thirty years ago and his debts and the expenses consequent upon his funeral and the settlement of his estate have long since been paid. Excepting the real estate this bequest exhausted his estate. All had been given to his wife — the first and natural object of his bounty. The burden of the exceptants’ argument was that the personal estate is the primary fund out of which to pay legacies. Of course it is. No one pretends to dispute this general proposition. But a testator may direct otherwise if he chooses, and this one did. “The only legacy to take effect immediately after his death was not only paid out of, but was the personal estate.” Had the testator said or done nothing more than bequeath the $500 and give his widow power to bequeath $2,000, the irresistible implication would have been that he intended these sums to be charged on the real estate. There was nothing else out of which they could be paid, but he left nothing to be implied. I'n direct and positive words he charged the real estate with these legacies. After devising to the remainder-men, he says:
    “ Under and subject nevertheless to the rights of occupancy and possession and the Rents Issues and profits thereof unto my wife during her life as hereinbefore devised and bequeathed to her and subject and liable also to the liens legacies and bequests and payments to be made therefrom and thereout as hereinbefore and hereinafter made.”
    The liens, legacies, bequests and payments to be made therefrom and thereout — from and out of the real estate— are these for $2,000 and $500. There are no others. The one for $2,000 had been “hereinbefore” made and the one for $500 was “hereinafter made.” There is no uncertainty as to his meaning or the meaning of his words.
    Exceptions are dismissed and the adjudication is confirmed absolutely.

      Error assigned was in dismissing exceptions to adjudication.

      B. F. Davis, with him 8. R. Weaver, for appellants.
    — The charge on the lands in the will was merely an additional security for the payment of a legacy to the widow or her heirs or legatees, in case the personal estate was insufficient: Smith v. Davis, 1 Grant’s Cases, 158; Muhlenberg’s App., 103 Pa. 587; Keeler v. Wood, 30 Vt. 242; Dewitt v. Yates, 10 Johnson’s Rep. (N. Y.) 156; Kendig v. Landis, 135 Pa. 612; Breden v. Gilliland, 67 Pa. 34; Eavenson’s App., 84 Pa. 172; Riegelman’s Est., 174 Pa. 476; Mann’s App., 14 Atl. Repr. 270; Walker v. Hardwick, 1 Mylne & Keene, 396.
    February 28, 1908:

      W. H. Keller, of Coyle & Keller, with him A. W. Snader, for appellees.
    — The legacies were charged on the land: Clery’s App., 35 Pa. 54; Hershey’s Est., 21 Pa. Superior Ct. 651; Swuope’s App., 27 Pa. 58; Tower’s Appropriation, 9 Watts & Sergeant, 103.
    An absolute gift will not be cut down or diminished except by clear language, showing unequivocally an intention to cut down the quantum of the estate: Snyder v. Baer, 114 Pa. 278; Levy’s Est., 153 Pa. 174; Good v. Fichthorn, 144 Pa. 287; Gillmer v. Daix, 141 Pa. 505; Coles v. Ayres, 156 Pa. 197; Schuldt v. Herbine, 3 Pa. Superior Ct. 65; Yost v. Ins. Co., 179 Pa. 381; Sharpless’s Est., 209 Pa. 409.
    And the effect of the exception or reducing clause will not be extended beyond the clear intent of its language: Sharpless’s Est., 209 Pa. 409; Hiestand v. Meyer, 150 Pa. 501; Good v. Fichthorn, 144 Pa. 287.
   Opinion by

Henderson, J.,

The question for our determination is whether the bequests provided for in the fourth and eighth paragraphs of the will of Henry Rutt are payable out of the decedent’s real estate. That they are a charge on the land is clearly apparent from a consideration of the sixth paragraph of the will and seems to be conceded in-the argument of the appellants’ counsel. It is contended, however, that they are first payable out of the personal estate and if that is not sufficient that the balance is payable out of the real estate, and that the charge on the land is only an additional security to the legatees. The general proposition that the personal estate is the primary fund out of which legacies are paid is not open to debate, but it is equally well established that a testator may direct from what part of his estate the legacies or any of them shall be paid. An examination of the will under consideration makes it apparent that the testator gave to his wife all of his personal estate, out of which she was required to pay the decedent’s debts, his funeral expenses and the cost of the settlement of his estate. There is no ambiguity or obscurity in the first paragraph of the will when read in connection with the fifth. The first paragraph is in these words: “Saving excepting and reserving and subject and liable to as herein after mentioned, I give devise and bequeath unto my present wife Elizabeth (her Family name Zimmerman or Carpenter) all and singular the whole of my Personal and Mixed Estate of what kind and nature whatsoever.” In the next paragraph the testator gave to his wife a fife estate in the real estate therein described. In the third paragraph she was given the right to cut firewood and timber for repairs from another piece of real estate. Then in the fifth it was provided that the devises, legacies and bequests made to her were conditioned that she pay all debts, funeral expenses' and the costs of settlement of the estate. The “saving, excepting and reserving” clause of the first paragraph must be read in connection with the requirements of the fifth paragraph in" order to make the will reasonable and consistent. The clause referred to has no reference to the provisions of the fourth and eighth paragraphs. The fourth paragraph merely gives to the testator’s wife a power of appointment as to a portion of his estate. It does not make a gift to her and has no reference to that part of his estate given to his wife in the first paragraph. As to the latter, she had absolute control because it was her own property and the provision in regard to the $2,000 must necessarily relate to a part of the testator’s estate not disposed of by other provisions of the will. The interpretation contended for by the appellants would require us to hold that the testator gave to his wife all of his personal estate and at the same time intentionally charged it with the payment of legacies which might equal the amount of the bequest to her. Moreover, the bequest in the eighth paragraph was not payable until after the death of the decedent’s wife and that provided for in the fourth paragraph might not become payable until after her death and in fact did not become payable until after that event. There is no intimation in the language of the-first paragraph that the wife was to have less than an absolute estate. No provision is made for safeguarding the property or any requirement that security be given that it be produced to satisfy any future demand. The testator was childless and we may properly assume that his wife was the first object of his care. There is an intention expressed to make an absolute gift of the personal estate and this cannot be cut down except by language which shows a clear intention to diminish the interest: Yost v. Ins. Co., 179 Pa. 381; Sharpless’s Estate, 209 Pa. 409.

There is the further objection to the position of the appellants, that the testator expressly directed in the sixth paragraph of his will that the legacies and bequests should not only be a charge upon his land, but should be payable “ therefrom and thereout.” This can only refer to the legacies provided for in the fourth and eighth paragraphs. All of the personal estate was given to the wife. Nothing remained for division or distribution except the real estate devised as provided in the sixth paragraph. The testator was aware that out of this must come the fund given in the fourth paragraph and that is the bequest to which reference is made in the sixth paragraph as “ hereinbefore ” made. He also knew that the legacy of $500 payable to Lizzie A. Wanner must come from the same source and it is obviously the bequest to which he referred in the sixth paragraph as “hereinafter” made. The intention to charge the real estate with the payment of these legacies is much more clearly expressed than was that in Swoope’s Appeal, 27 Pa. 58; Clery’s Appeal, 35 Pa. 54, and Hershey’s Estate, 21 Pa. Superior Ct. 651; in all of which it was held that the legacies were payable out of the real estate.

The widow of the testator made a will in which she disposed of all of her personal estate. This, under the third section of the Act of June 4,1879, P. L. 88, was an exercise of the power of appointment contained in the will and entitled her executor to the bequest of $2,000 to be distributed as directed by her.

The foregoing interpretation of the will gives consistency to the whole and is in harmony with the adjudicated cases.

The decree is affirmed.


text:
    Lorah, Appellant, v. Amity Township.

      Road law — Diversion of water from road — Public road — Supervisors— Discretion.

    Where supervisors open a drain along the side of a public road, and waters which naturally flowed from the road on to the lands of an adjoining owner, are carried off by the drain, and this condition of things exists for many years, a subsequent board of supervisors is not precluded thereby from closing up the drain, and again diverting the water on to the neighboring land, if they do so in the exercise of a proper discretion. In such a case the neighboring owner never acquired a right to use the road as a conduit to carry the water from his premises.
    Argued Nov. 13, 1907.
    Appeal, No. 30, Oct. T., 1905, by Mahlon L. Lorah, from order of C. P. Berks Co., Sept. T., 1905, No. 53, refusing to take off nonsuit in case of Mahlon L. Lorah v. Amity Township.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries to land.
    The facts are stated in the opinion of the Superior Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Isaac Hiester, with him Rothermel & Mauger, for appellant.—
    Where the supervisors of a township for a period of thirty years maintain a gutter along the side of a public road and thereafter dam the gutter so as to collect the water of the road and throw it on the adjoining lands the township is liable for the injury to the land, and this is so even though the water naturally flowed over these lands before the gutter was constructed: Torrey v. City of Scranton, 133 Pa. 173; Weir v. Plymouth Boro., 148 Pa. 566; Bohan v. Avoca Boro., 154 Pa. 404; Hutchinson v. Clay Township, 14 Pa. Superior Ct. 546; Matlack v. Callahan, 25 Pa. Superior Ct. 454; Foullc v. Brown, 2 Watts, 209; Stout v. Kindt, 24 Pa. 449; West Bellevue Boro. v. Huddleston, 23 W. N. C. 240; Martin v. Riddle, 26 Pa. 415; Rohrer v. Harrisburg, 20 Pa. Superior Ct. 543.
    February 18, 1908:

      C. H. RuM, with him T. K. Leidy, for appellee,
    cited: Meeker . v. Com., 42 Pa. 283; Martin v. Riddle, 26 Pa. 415; McCormick v. Kinsey, 10 Pa. Superior Ct. 607; Carr v. Northern Liberties, 35 Pa. 324; Collins v. City of Phila., 93 Pa. 272; Fair v. City of Phila., 88 Pa. 309; Bear v. Allentown, 148 Pa. 80; Fairlawn Coal Co. v. Scranton, 148 Pa. 231.
   Opinion by

Henderson, J.,

The plaintiff’s action is for damages for the wrongful diversion of water from a public highway onto his land by the supervisors of the township. His allegation is that a ditch was cut along the side of the road through an elevation of the ground, thirty years ago or more, by means of which the surface water accumulating on the road and adjacent land Was carried down the road and away from the plaintiff’s land; that this ditch was closed in August, 1905, by the supervisors, the result of which was that the surface water was diverted into his field. The plaintiff admits that the natural drainage of the road was onto his land before the ditch was made"and that with the ditch closed the water would naturally drain onto his land at the point where the supervisors turned it. It further appears that while the ditch was open, when a heavy rain occurred a large quantity of water flowed from the road in that direction; that a ditch was washed out by the water in the plaintiff’s field and that he made an obstruction of stumps and earth to stop this flow. A natural ridge or elevation in the highway was the cause of the drainage of the road onto the plaintiff. This natural flow of the water was changed in part when the ditch was cut through the elevation. The plaintiff’s position, as we understand it, is that the township maintained a ditch along the highway for thirty years and over, and as a legal consequence it cannot now be obstructed or changed by the supervisors. It is not clear whether he claims a prescriptive right to have the water flow along the highway or whether some application of the doctrine of estoppel is supposed to work the same result. It is not expressly asserted that either of these views is that relied upon. The position really taken is that, the supervisors having once opened the ditch through the elevation and having permitted it to remain for thirty years and over, it is the same as a natural water course and the plaintiff can maintain an action for damages resulting from its obstruction. We need not discuss the question whether as against the public the plaintiff could acquire such a right, for the testimony which he presented shows that for a number of years in the period stated the water from the road flowed onto his land through ditches opened and maintained by supervisors; that these ditches were changed at different times to suit the plaintiff’s convenience and that the water did not flow continuously along the highway. It also appeared that the plaintiff obstructed the flow of water onto his own fields and turned it onto the highway. It cannot be successfully contended under the evidence that the drain was open continuously even for twenty-one years. The public roads of a township are subject to the control of the supervisors. This authority is expressly given in the general road law of June 13, 1836, P. L. 551. They are required to keep the roads in good condition and clear of all impediments to easy and convenient travel. The thirty-second section of that act invests them with power and authority to enter on any lands along which a public road is located and cut open, maintain and repair all such drains and ditches through the same as they shall judge necessary to carry the water from the road. The sixty-seventh section provides a penalty to be imposed upon any person who shall fill up or injure any drain or ditch made by any supervisor for the purpose of draining the water from any public road. The performance of the duties imposed upon the supervisors necessarily involves the exercise of official discretion. They are chosen with reference to their intelligence and experience and are presumed to be at least as well qualified as any other electors of the district to direct the construction and maintenance of roads. For the consequences of the honest exercise of this discretion the township is not liable. A municipality is not responsible for a mistake of judgment even, made by a public officer in the discharge of his duty if such mistake be an honest one: Collins v. Philadelphia, 93 Pa. 272; Bear v. Allentown, 148 Pa. 80; Herr v. Altoona, 31 Pa. Superior Ct. 375. Such discretion was exercised by the supervisors of the defendant township in performing the act of which the plaintiff complains. At least there is no evidence on the record from which it could be inferred that they did not act conscientiously and with the object of promoting the public interests which they represented. Whether the surface water should have been permitted to flow through the cut in the bank and down the hill to the spring run or should be turned onto the plaintiff’s land is a question which the supervisors had a right to determine and we must presume that their action was prompted by good motives. It does not follow that the water must be permitted to flow to the spring run because a preceding board of supervisors had caused it so to do. It is well known that the condition of a road changes from year to year and that circumstances arise which make it advisable to change the construction from time to time. The judgment of different boards of supervisors varies also and that which may seem to one to be the most satisfactory arrangement may not have the same aspect to another. The law assumes that each board acts honestly and in the exercise of good judgment until it is made to appear by sufficient evidence that their conduct is malicious or an abuse of discretion. It may be inconvenient to the plaintiff to bear the burden caused by the flow of water onto his land, but of this he cannot complain as his field is the natural outlet for the water flowing down the road and from the adjacent land. The dip or depression permitted the water to flow in his direction and he cannot insist that an artificial channel made by a former supervisor shall continue to be the means by which the water on the road is taken care of. Enough was developed in the plaintiff’s evidence to show that the supervisors may have acted with propriety in taking care of the water in order that the least damage should be done by it. The plaintiff never acquired a right to use the road as a conduit -to carry the water from his premises. “Roads are made for the convenience of travel, and in no sense to relieve land bordering upon them from the burdens to which they are naturally subservient.” Martin v. Riddle, 26 Pa. 415. The nonsuit was rightly granted.

The judgment is affirmed.


text:
    Spring City Borough v. Montgomery & Chester Electric Railway Company, Appellant.

      Street railways — Municipal consent — Conditional consent — Boroughs.
    A borough in granting by ordinance to a street railway company the right to use a street may reserve to itself the right to tear up the tracks, if the railway is not built.within one year from the approval of the ordinance. If the railway is not completed within the year, and there is no evidence of impossibility or great hardship which would amount to an excuse for the delay, the borough may enforce its rights under the ordinance; and mere indulgence and delay in instituting proceedings would not amount to laches on its part where there was no change in the situation prejudicial- to the company. A mere statement by the borough solicitor and one of the members of the borough council that the purpose of the borough was to compel the company to pave its track, will not defeat the right of the borough to remove the tracks.
    Argued Nov. 19, 1907.
    Appeal, No. 19, Oct. T., 1907, by defendant, from decree of C. P. Chester Co., Equity Docket, C. P. 34, No. 457, on a bill in equity in case of Spring City Borough v. Montgomery and Chester Electric Railway Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Bill in equity for an injunction to compel the completion of a street railway. Before Hemphill, P. J.
    Hemphill, J., found the facts to be as follows:
    The plaintiff seeks to enjoin the defendant from further operating its railway within the borough limits, because of its failure to complete its road within the time stipulated in an ordinance approved January 9, 1899, and accepted in writing by defendant company on April 25,1899.
    FINDINGS OF FACTS.
    The plaintiff borough was duly incorporated under the acts of assembly and by decree of the court of quarter sessions of Chester county, made August 12, 1867, under the name of the borough of Springville, which, by decree of the same court, made December 17,1872, was changed to the borough of Spring City.
    The defendant company was duly incorporated under an act of assembly, May 14, 1889, entitled, “An Act to provide for the incorporation and government of street railway companies in this commonwealth,” and its supplements.
    In compliance with the requirements of the constitution and laws of this commonwealth the defendant sought permission of the plaintiff to construct and operate its road within the limits of said borough, which was granted by an ordinance approved January 9,1899, and duly accepted by said company.
    The eleventh section of said ordinance provided as follows: “The franchises and privileges hereby granted shall be exercised and the construction of said railway shall be fully completed and in full operations and open for the accommodation of the public, within one year from the approval of this ordinance. That provisions of this ordinance shall be null and void, unless said company, within thirty (30) days after the approval of the same, shall give to the Borough Treasurer a bond in the sum of two thousand five hundred (2,500.00) dollars, to be approved by the borough Solicitor, the condition of said bond to be that it shall complete and fully operate its road within the borough limits in one (1) year after the passage and approval of this ordinance. On failure to complete and fully operate said road within the time hereinbefore specified, all the franchises and privileges hereby granted shall be null and void and the amount of said bond, or as much thereof as may be necessary, shall be used to tear up the track on said streets and to put the same in proper repair and the balance of said bond shall be the property of the Borough.”
    In compliance with said ordinance said company on February 2, 1899, duly executed its bond for $2,500 with the Real Estate Trust Company as surety and filed the same with plaintiff, and later commenced the construction of its road within said borough.
    As originally planned and chartered, this road was to run from Phcenixville, Chester county, to Pottstown, Montgomery county, but upon the request of the defendant company the town council of the borough of Spring City on June 5) 1899, consented to the abandonment of that part of the road extending from Pottstown to the south bank of the Schuylkill river.
    That part of the route, from the south side of the Schuylkill river on Bridge street to the railroad siding of the Schuylkill division of the Pennsylvania railroad on Main street in said borough, has never been completed or operated by the defendant company; nor has it ever been released or relieved from the completion and operation of the same by the council of said borough. There were some negotiations between the parties looking to an agreement by which the company should be relieved from the construction and operation of its road over the route last described upon its paving in lieu thereof certain streets of the borough, but it was never consummated.
    CONCLUSIONS OF LAW.
    Under the facts above found the question presented is:
    Is the plaintiff entitled to an injunction restraining the defendant from operating any portion of its road within the limits of the borough by reason of its failure to comply with all the requirements of sec. 11 of the ordinance of January 9,1899?
    It has been well settled by numerous decisions in this state that where a municipality grants the use of its streets to a street railway company upon certain expressed conditions, that they must be complied with or upon failure to comply the company may be restrained from the exercise and enjoyment of the franchise granted.
    And it has been held that though the real purpose of a bill of injunction be not to enforce the conditions of the contract, though so alleged, it will not relieve the company from compliance with the conditions under which it accepted and obtained its franchise: Conshohocken Borough v. Conshohocken Railway Company, 206 Pa. 75.
    This case is directly in point and in our opinion rules the one under consideration; and the citation of additional authorities is therefore unnecessary.
    Following the precedent established in the case cited we make this order:
    And now, to wit: September 17, 1906, the bill filed in this case will be dismissed if the Montgomery and Chester Electric Railway Company shall within sixty days from the filing of this opinion and order complete the construction and begin the operation of its road over the route described in the ordinance of January 9,1899, between the south bank of the Schuylkill river at Bridge street and the railroad siding of the Schuylkill division of the Pennsylvania Railroad on Main street in the borough of Spring City; otherwise an injunction will be awarded as prayed for in said bill.

      Error assigned was the decree of the court.

      H. H. Gilkyson, with him J. Frank E. Hause, for appellant.—
    Impossibility of performance is a bar: Allegheny City v. Ry. Co., 159 Pa. 411; Keystone State Teh, etc., Co. v. Ridley Park Boro., 28 Pa. Superior Ct. 635; Millcreek Twp. v. Erie St. Ry. Co., 216 Pa. 132.
    Plaintiff is estopped by its laches and acquiescence: Duffield v. Hue, 129 Pa. 94; Com. v. Turnpike Co., 153 Pa. 47; Becker v. Ry. Co., 188 Pa. 484; Wenger v. Rohrer, 3 Pa. Superior Ct. 596; Com. v. Railroad Co., 23 Pa. Superior Ct. 235; Penna. R. R. Co. v. Traction Co., 25 Pa. Superior Ct. 115; Heilman v. Railway Co., 180 Pa. 627; In re Melon Street, 192 Pa. 331; Hinnershitz v. Traction Co., 199 Pa. 3; Taylor v. Railway Co., 212 Pa. 487; Bridgewater Boro. v. Traction Co., 214 Pa. 343.
    February 28, 1908:
    The purpose and object of the bill is to compel the railway company to pave certain streets.
    A court of equity will not interfere if the bargain is hard or unconscionable, or the terms unequal, or the complainant is seeking an undue advantage. Equity never aids in enforcing a forfeiture, especially when the contract has been substantially carried out, and its literal fulfillment prevented by uncontrollable circumstances: Oil Creek R.R. Co. v. Atl. & Great Western R. R. Co., 57 Pa. 65; Wistar’s Appeal, 80 Pa. 484; Helme v. Philadelphia Life Ins. Co., 61 Pa. 107.

      Alfred P. Reid, with him Charles S. Wagoner, for appellee.—
    The condition in the ordinance to fully complete, and have in operation, its railway within one year was a condition precedent, and ho impossibility of performance will avoid the bar of the condition imposed: Allegheny v. Millville, etc., .St. Ry. Co., 159 Pa. 411; Minersville Borough v. Ry. Co., 205 Pa. 394; Keystone State Telephone, etc., Co. v. Ridley Park Boro., 28 Pa. Superior Ct. 635.
    The appellee is not es opped from revoking its consent in accordance with the terms of the ordinance: Jones v. Weir, 217 Pa. 321; Plymouth Twp. v. Ry. Co., 168 Pa. 181; Minersville Borough v. Ry. Co., 203 Pa. 394; Menendez v. Holt, 128 U. S. 514 (9 Sup. Ct. Repr. 143); Galway v. Ry. Co., 128 N. Y. 132 (28 N. E. Repr. 479); Hartupee v. Pittsburg, 97 Pa. 107.
    The order of the court, requiring the appellant to comply with its contract to build the road within sixty days, otherwise an injunction would issue as prayed for, was a proper and legal one: Conshohocken Borough v. Conshohocken Ry. Co., 206 Pa. 75.
   Opinion by

Henderson, J.,

The defendant derives its right to occupy certain streets in the borough of Spring City from an ordinance adopted January 9, 1899. The second section of the ordinance authorizes the company to construct a single track on Bridge street from the Schuylkill river to Main street, thence on Main street to Walnut street, thence on Walnut street to the south borough line on the Phoenixville road. In the eleventh section it is stipulated that the franchises and privileges granted shall be exercised and the construction of the railway fully completed and in operation within one year from the approval of the ordinance. The same section contains the further provision that on failure to complete and fully operate said road within the time specified all the franchises and privileges granted shall be null and void and the borough is authorized to tear up the track and recover the cost of so doing on a bond to be given by the company in the sum of $2,500, conditioned that it complete and fully operate its road within the borough limits in one year from the approval of the ordinance. It was the original plan of the company under its charter to construct its road from Phoenixville, Chester county, to Pottstown, Montgomery county, but an application was made by the defendant to the council of the borough of Spring City to consent to the abandonment of that part of the line extending from Pottstown to the south bank of the Schuylkill river, which consent was granted on June 5, 1899. It is admitted that that part of the road from the south side of the Schuylkill river on Bridge street to the railroad switch of the Schuylkill division of the Pennsylvania Railroad, across Main street, in said borough, has never been constructed. The power of the borough to grant or withhold permission to the defendant to use the borough streets was unqualified and this implies the right to impose reasonable conditions of such use: Allegheny City v. Railway Co., 159 Pa. 411; Plymouth Township v. Chestnut Hill, etc., Railway Co., 168 Pa. 181; Minersville Borough v. Railway Co., 205 Pa. 394. The condition of the ordinance, which admitted the defendant into the borough, was not unreasonable. When granting the right to the company to occupy the desired streets, with its tracks, it was not an improper condition to impose that the road be built as proposed and within a limited time. This condition was accepted by the company, and became a part of its contract with the borough, according to which the company was to be controlled in the occupancy of the streets. It was, therefore, a binding obligation on the defendant. The ordinance was an entirety which the company was at liberty to accept or refuse. By its terms the privilege to occupy the streets was granted on condition that the road be fully completed within a year. . This was a condition precedent to the permanent exercise of the franchise.

The defendant resists the enforcement of the ordinance for the breach of the condition recited on three grounds: first, the impossibility of constructing, maintaining and operating its road over that part of the line not built; second, because the borough has waived performance of the original condition; third, because the real purpose of the bill is not to enforce the condition of the ordinance but to compel the company to pave the portion of the street occupied by its track. There was no request to the trial judge for findings of fact supporting these positions and the findings made are expressly or impliedly against them. The uncompleted part of the road is about 1,500 feet long. The ground over which it Was to be laid is substantially level. The only reason suggested why the track might not be extended is that there are four spurs extending across the street from the Pennsylvania Railroad to the glass works there situated and to a woolen mill. There is no evidence showing to what extent these spurs are used, nor whether their presence would in any material degree interfere with the operation of a street car line. As to one of them, the switch leading to the glass works property, it is claimed by the appellee that it is there without municipal consent, but whether this is so or not there is an entire failure to prove that it is so used or likely to be so used as to interfere with the maintenance of the street car line. The proposed objective of the line is the Pennsylvania Railroad station which is within fifty or sixty feet of the borough line. In building to that point no track of the railroad company would be crossed except the switches referred to. It is true that when, some years ago, the defendant was about to lay its track across the switch to the glass works a bill in equity was filed by the railroad company to restrain such action and that an ex parte injunction was granted, but the president of the traction company admits that no effort was made by the company to secure the right to cross or to prosecute the work of completing the track to the Pennsylvania station, and it is evident from the testimony that it did not intend so to do. The objection that the defendant would be required to lay i^s track across the main line of the Pennsylvania Railroad is not a good one. As we understand the position of the complainant it is not insisting that this be done, for although the franchise calls for the construction of the track to the borough line its completion to the railroad station would be such a compliance as would be apparently satisfactory to the borough. There would be much merit in the position that the extension of it a few feet further to the borough limits, across the main line of the railroad, would be useless and impracticable, and that the completion .to the railroad station would be a substantial performance. The condition of the street as to the location of the railroad switches remains the same as when the • ordinance was accepted. The defendant’s undertaking necessarily involved the crossing of these switches in the extension of its line northwardly into Montgomery county. The difficulty of construction was evidently not considered impracticable at that time and nothing is proved to have intervened to change the situation. If we concede that as to an unperformed condition precedent any difficulty or impossibility would relieve from the obligation of the contract it has not been made to appear that any such situation exists in this case. Our attention is called by the appellant to Millcreek Township v. Erie Rapid Transit Street Railway, 216 Pa. 132, in support of its position, but the decision there was based on an entirely different state of facts. The railway company was rightfully in occupancy of the highway. It had performed all the conditions imposed upon it in order to entitle it to the exercise of its charter powers. The provision that it should at some future time, if so required by the township authorities, move its track to the middle of the street was in no sense a condition precedent. The contingency might never arise and in fact did not arise for several years after the road was in operation. And even then, the obligation to change the location of the track when demanded by the township was recognized by the court. The inability of the company to obtain the consent of the landowners on the opposite side of the street at the time, only postponed the operation of the decree of the court. In the appellant’s case consent was only to be had on completion of the road within a year and there is no evidence of impossibility or hardship which, under any circumstances, would amount to an excuse. Minersville Boro. v. Railway Co., 205 Pa. 394, and Keystone State T. & T. Co. v. Ridley Park Borough, 28 Pa. Superior Ct. 635, are authorities in point and sustain the position of the appellees.

The question here is not one of forfeiture, but of consent.' The privilege contemplated was not simply to enter upon the streets for the purpose of constructing a road, but to actually construct it and put it in operation within a limited time. If the company did not substantially perform the condition so imposed such omission terminated the franchise. By the very terms of the ordinance all the privileges thereby granted were to become null and void if the company failed to complete and fully operate its road within the time specified. The court below found that the borough had not done anything to release or relieve the company from the completion and operation of its line over this part of the borough. It did nothing. Mere indulgence and delay in instituting proceedings do not amount to laches where there is no change in the situation prejudicial to the company: Minersville Boro. v. Railway Co., 205 Pa. 394; Menendez v. Holt, 128 U. S. 514; Galway v. Metropolitan Elevated Ry. Co., 128 N. Y. 132. After a careful examination of the evidence we do not find anything to show that the situation of the defendant was made worse by the omission of the plaintiff to proceed more promptly, nor do we find merit in the allegation that this proceeding was instituted for the purpose of compelling the defendant to pave its track in accordance with the requirements, of the ordinance giving it permission to construct its road. There was, indeed, the evidence of the borough solicitor and one of the members of the council that this was one of the objects in view, but each of them testified that it was also-the desire that the track be completed, to the railroad station. It may well be doubted whether the opinions so expressed were competent evidence to affect the plaintiff, but whether that be so or not the president and one of the other officers of the defendant company say that the company is willing and ready to contribute to the cost of the paving. The only question between the borough and the railway company on the subject of paving seems to have been the time of payment by the railway of its share of the cost. It had not the money to pay at once and desired to give the bonds of another company as security. These the borough was not willing to accept because of their alleged lack of value. And even if the motive were as attributed by the appellant the decree entered by the court below is justified by Conshohocken Boro. v. Conshohocken Railway Co., 206 Pa. 75. The appellant entered into a contract to carry out an undertaldng in the borough on certain conditions. It asks to be permitted to exercise such part of the franchise granted as is deemed advantageous to itself and seeks to be relieved from a part of its undertaking presumably not considered profitable. This it has no right to do. No' sufficient reason is shown why it should not be required to perform its contracts as are other corporations and individuals. To permit it to elect what part of its obligations it will perform and what part it will refuse to perform, will, in effect, write a contract between the parties which one of them never assented to. We concur in the conclusions of the court below.

The decree is affirmed.