author: Portee, J.,

text:
    Commonwealth ex rel. v. Union Surety & Guaranty Company.

      Trusts and trustees — Trust fund — Contract—Mingling of trust funds and general assets.

    Where a sum of money is held by a surety company as a fund to indemnify the company against loss on a contract of suretyship, and the owner of the fund asks that the money shall be invested so that it shall bear interest or that the company shall pay interest, and the company agrees to pay interest, and thereafter deposits the money in its general account, the owner of the fund after the insolvency of the company has no preference in the distribution of the assets of the company. In such a case even if there had been no agreement as to interest, and the fund was in fact a trust fund, the owner would not be entitled to a preference unless he traced the fund into some specific property, or into some particular moneys or accounts of the insolvent company, which had passed into the hands of its receiver or assignee.
    Argued March 11, 1908.
    Appeal, No. 1, March T., 1908, by Mary B. Jones, from order of C. P. Dauphin Co., Commonwealth Docket, 1904, No. 26, dismissing exceptions to auditor’s report in case of Commonwealth ex rel. Plampton L. Carson v. Union Surety & Guaranty Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of John R. Fox, Esq., and Charles L. Brown, Esq., auditors.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to auditor’s report.

      G. Von Phul J ones, with him Wm. H. Musser, for appellant. — •
    The surety company stood in a fiduciary relation to appellant and that relation was not changed: Hallett’s Est., L. R. 13 Chan. Div. 696.

      David Jay Myers, with him Milton C. Work, for appellee.

      August 00, 1908:
   Opinion by

Portee, J.,

The first specification of error, which complains of the refusal of the court below to order the receiver, upon the petition of the appellant, to pay to her the sum of $506.32 out of the funds which came into his hands, may properly be considered with the seventh specification which alleges that the auditors, appointed to distribute the funds in the hands of the receiver, erred in not allowing the claim of appellant in the sum of $506.32, out of the moneys on deposit at the time of the appointment of the receiver, with the Penn National Bank to the credit of the Union Surety & Guaranty Co. The petition which the appellant presented in the court below, praying for an order on the receiver to pay over the fund in question, sufficiently averred, with the copies of the letters which it embodied, that the sum of $506.32 had been received by the Union Surety & Guaranty Co. in trust to hold the same as security to indemnify the trust company against liability upon certain bonds in which it was surety for the firm of Jones & Wallace, and upon the expiration of that liability and a release from the city of Philadelphia to pay over the said fund to Mary B. Jones. There can be no question that the original transaction fixed this fund with a trust, and the company was bound to hold the money for that especial purpose. Mary B. Jones and the trust company were the only parties who had any interest in the fund and it was competent for them to change the arrangement at any time. This was the condition of affairs when, on February 25, 1904, the duly authorized attorney for Mary B. Jones wrote to the surety company the following letter:

“February 25, 1904.
“Union Surety & Guaranty Co.,
“Philadelphia, Pa.
“Gentlemen:
“I have received your letter of February 23, 1904, relative to the payment of $506.32 which you say you obtained on the bonds of Jones & Wallace, deposited with your company as collateral security. My object in having those bonds turned into cash was to be able to have this sum invested in something which would produce interest, as the interest on the same had ceased to run under the notice given by the United States Government. Am I to understand that your company will pay interest on this deposit or am I to try to seek a proper investment for it? As the time within which this money will be payable to Mrs. Mary B. Jones is fast approaching I would prefer to have this money with your company, provided you will allow a reasonable rate of interest.
“Yours respectfully,
“G. Von Puhl Jones.”

To this letter the surety company on the same day made the following reply:

“February 25, 1904.
“G. Yon Puhl Jones, Esq.,
“ Philadelphia.
“Dear Sir:
“Replying to your letter of the 25th inst. relating to the question of interest on the amount deposited as counter security on the bonds of Jones & Wallace, we desire to say that, as a rule, we do-not allow interest in cases of this kind. We have, however, taken into consideration the short time in which this money will remain here and have decided to allow you interest at the rate of two per cent per annum.
Trusting this will meet with your approval, we are,
“Yours very truly,
“F. J. Thron,
“Secretary and Treasurer.”

Both of these letters were set forth in the petition of Mary B. Jones, and have become part of the record. The money was left with the trust company on this arrangement. The Union Surety & Guaranty Co. became insolvent and closed its doors on March 11, 1904, and on the 17th day of the same month the receiver was appointed by the Court of Common Pleas of Dauphin county. The appellant further averred in her petition that this fund had been deposited by the Union Surety & Guaranty Co. on February 23,1904, in the Penn National Bank of Philadelphia, and that the said. Surety Company continued from that date until the time when the assets passed into the hands of the receiver, to have a sum in excess of $506.32 on deposit in said national bank. The receiver filed an answer admitting that the appellant had deposited the fund in question and was entitled to participate in the distribution with the other depositors of the company but denying that she was entitled to a preference over other creditors, and averring that by the arrangement of February 25, 1904, the sum became a special deposit and the transaction was relieved of its fiduciary relation and that the fund had become mingled with the general funds of the surety company. The court below refused the prayer of the petitioner upon this branch of the case, without prejudice to her right to present it for payment upon this distribution. The auditors appointed to make the final distribution found that the claim was not entitled to a preference in payments out of the proceeds of the estate of the insolvent trust company and awarded to it the same dividend as was paid to the general creditors.

The manifest purpose of the authorized attorney of the appellant in writing the letter of February 25, was to find an investment for the fund which would produce interest, and the letter expressed a willingness to invest it with the trust company if they would agree to allow a reasonable rate of interest. The reply of the trust company was an acceptance of the proposition and an offer to pay interest at the rate of two per cent, per annum. , The money remained with the trust company under this arrangement. These letters con-' stituted a new contract, or rather an explicit modification of the former. The surety company was under this new arrangement bound to pay interest on the money and the appellant was entitled to receive that interest. Interest is something paid for the use of money, and it is contrary to human experience and business practice to suppose that any bank or individual would agree to pay interest on money and at the same time contract to seal it in an envelope or lock it up in a safe deposit box and permit it to remain unused. The deposit was still subject to the condition that it should not be withdrawn until the liability of the Union Surety & Guaranty Co. upon the bonds of Jones & Wallace had ceased, but in the meantime the appellant was entitled to interest for the use of the money and the surety company was, under the new arrangement, entitled to use the money in its business. This entitled the. bank to mingle the fund with its own money and it ceased to be a trust fund which the bank was under any obligation to keep separate and distinct. The action of the court below and of the auditors was free from error and the first and seventh specifications of error are dismissed.

Even if no new arrangement had been made, by the letters of February 25, 1904, the appellant has not, by the case presented in this court, established that the decree of the court below ought to be reversed. The burden was upon the appellant to establish her right to a preference in payment out of The 'assets of the insolvent corporation, as against the,general creditors. This is not a contest between the appellant and the Union Surety & Guaranty Co., the general creditors of the insolvent bank are the parties here interested. Assuming that the fund of the appellant in the hands of the bank was a trust fund, that fact was not of itself sufficient to entitle her to a preference. A trust creditor is not entitled to preference over general creditors of' the insolvent merely on the ground of the nature of the claim. To authorize such a preference, some specific recoghized~equity founded oJTthe relation of the debt to the Assets which came-into the hands of the receiver or assignee, and which entitles the claimant, according to equitable principles, to a preference in payment out of those assets, must be established Byevidehce. To entitle one claiming~~to be a trust"creditor to preference, he must tracé the trust money" into some specific propertypor ~ into some particular fund or account of the assignor, which has passed into the hands of the receiver or assignee. “So long as it can be identified either as the original property~o? the cestm~~que tfustTor as the product of it, equity will follow itand the fight uf reclamation attaches to it until detached by the superior"equity ofa bona ficTe purchaser,’Jor'a' válüahlñ cons'ideration, without notice. The substitute for the original thing followsIh^hature bfThéThíñg'itself'sb'long as it cafiTbe ascertamed"to"b'ésüclñ Büt'th'en^fbr^ársümgltNSlEvUién the mUaniTof ’fail. This is always the case when tte'subject-mattCTTs turnéd~hffiEmonéyFñElñixed”ahd confowcletllUagenefarmasJof pro'péUy'bftheLlMhe"descríption,': Thompson's Appeal, 22 Pa. 16; Farmers & Mechanics National Bank v. King, 57 Pa. 202; Peoples’ Bank’s Appeal, 93 Pa. 107; Freiberg v. Stoddard, 161 Pa. 259; Jamison’s Estate, 163 Pa. 143; Lebanon Trust & Safe Deposit Bank’s Assigned Estate, Carmany’s Appeal, 166 Pa. 622; Cobson’s Estate, 3 Pa. Superior Ct. 244; Miller’s Appeal, 218 Pa. 50.

The learned .counsel representing the appellant has argued that the evidence established that the.fund in question was on the day it was received deposited by the Union Surety & Guaranty Co. in the Penn National Bank, and that it continued on deposit in said bank, the Surety Company having a sum in excess of the amount of the fund to its credit during all of the time, until the receiver was appointed. It is not necessary to determine what the rights of these parties would be if the facts were as stated. The evidence, as the appellant has printed it in her paper book, does not establish those facts, nor is it sufficient to warrant a finding that the facts were as above stated. The evidence which has been presented for our consideration, under the rules of this court, does establish that the fund was deposited, on February 23, 1904, by the Union Surety & Guaranty Co., “in the general fund of that company,” in the Penn National Bank. The appellant offered in evidence the book showing the daily balances of the Union Surety & Guaranty Co. with the Penn National Bank, but she has failed to print that account in her paper book, and the rights of the parties are not to be determined by any guess as to what that account would show if it had been printed. The appellees have printed what purports to be a copy of that account, which shows that the balance on deposit in the Penn National Bank, at the close of business on March 10, 1904, was only $25.30. It is sufficient to say that the testimony as printed by the appellant does not establish her right to a preference in the distribution of assets of the insolvent corporation.

The decree of the court below is affirmed and the appeal dismissed at cost of the appellant.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Marcoz v. Wilmerding Borough, Appellant.

      Road law — Change of grade — Petition of property owner — Damages— Act of May 16,1891, P. L. 75.

      A borough has the power to ordain the grading of a street without a petition having been presented by a majority of the owners of abutting property praying for the making of the improvement; and this power has not been taken away by the Act of May 16, 1891, P. L. 75, or by any later legislation, such as the Act of May 22, 1895, P. L. 106, relating to the -opening, widening, straightening or extending of streets, or the Act of May 19, 1897, P. L. 79, relating to the imposition of assessments upon abutting property according to the “foot-front rule.”
    Borough authorities alone have the lawful authority to change the grade of streets, and a lawful contract between a borough and a street railway company which necessarily results in a change of grade of a highway, must be construed as an ordinance of the borough providing for such change, and the change itself is a municipal improvement, rendering the borough liable in damages for injuries to abutting property resulting therefrom.
    Where a borough grants to a street railway company the right to use a street on condition that it shall grade and pave a portion of the street, the fact that the borough subsequently grades and paves those portions of the street outside of that part which the railway company graded and paved, does not relieve the borough from liability for injuries to property resulting from the change of grade made by the railway company; and damages for such injuries may be assessed under the Act of May 16, 1891, P. L. 75, without a preceding petition by property owners.
    Argued April 16, 1908.
    Appeals, Nos. 109-118, by defendant, from judgments of C. P. No. 1. Allegheny Co., Dec. T., 1903, Nos. 1075-1083, on verdicts for plaintiffs in case of Mary Marcoz et al. v. Wilmerding Borough.
    Before Rige, P. J., Portee, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Appeal from report of jury .of view. Before Swearingen, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiffs in various sums. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      H. M. Scott, with him Wm. H. Thompson, borough solicitor, for appellant.
    Boroughs have no lawful power to grade streets without prior petition of owners of abutting land, except in certain cases, specified by law, when they may grade parts, not exceeding 1,000 feet in length, of streets without such petition of abutting owners. At the time the ordinances were passed and the work was done in these cases, the limitation wras 500 feet: Palo Alto Road, 160 Pa. 104; Hanover Borough’s App., 150 Pa. 202; Dorrance v. Dorranceton Borough, 181 Pa. 164; Verona Borough, 4 Pa. Superior Ct. 608; Pittsburg v. Walter, 69 Pa. 365; Fell v. Phila., 81 Pa. 58.
    The work done by the street railway company in laying its track on State street to the official grade was not a municipal improvement within the meaning of the Act of May 16 1891, P. L. 75, and supplements: Lewis v. Homestead Boro., 194 Pa. 199; Larkin v. Scranton, 162 Pa. 289; Ninth Street, 7 Lack. L. N. 161.
    The borough is further prejudiced because, by reason of the whole proceeding being irregular, unlawful and invalid, it cannot lawfully collect the assessments for benefits imposed by the viewers upon other owners of land abutting on State street, who did not join in the proceedings for the appointment of viewers: Scranton Sewer, 213 Pa. 4.
    If appellees had any right of action it was an action of trespass against the street railway company, and not against the borough: Shawmont Ave., 5 Pa. Dist. Rep. 190; Nyhart v. Taylor Borough, 6 Lack. Jur. 310; Ogden v. Phila., 143 Pa. 430.

      Thomas E. Finley, with him George W. Harriott, for appellees.
    This case is ruled by the case of Lewis v. Borough of Homestead, 194 Pa. 199.
    October 12, 1908:
   Opinion by

Porter, J.,

The borough of Wilmerding was incorporated in 1890 and its powers and liabilities are to be determined under the general borough laws of the commonwealth. The plaintiff is the owner of a lot abutting on State street in said borough, the grade of which was changed under the circumstances hereafter recited. The plaintiff presented her petition to the court below praying .for the appointment of viewers to assess the damages and benefits under the provisions of the Act of May 16, 1891, P. L. 75, and the several supplements thereto. The viewers having been appointed and having reported in accordance with the provision of the act, the defendant appealed and a jury trial upon that appeal in the court below resulted in a verdict in favor of the plaintiff. The defendant now appeals from the judgment on that verdict.

The. grade of State street was duly established by an ordinance approved August 4, 1898. The borough by an ordinance regularly adopted and approved on May 13,1902, granted to the Monongahela Street Railway Company, a corporation duly chartered under the laws of the commonwealth and authorized to receive súch grant, the right to use and occupy, inter alia, more than 500 feet of State street. This ordinance by its terms made the grant subject to the conditions, that the railway should be made to conform to such grade or grades as are now or hereafter may be established by said borough and upon any change of the same shall then be made to conform to such changed grade, that the railway company should when constructing its railway grade and pave between the rails of its track and for one foot outside, over the whole route, that it should at the time it constructed its railway grade, pave and curb to the full width of at least twenty-one feet between curb lines the whole of the remainder of the aforesaid highways .... to the most easterly point within the borough limits on State street, and that the company should, at the same time, curb at the distance of ten and one-half feet from the center line of its track or tracks along the north side of State street .... and grade and pave the entire space between said curb and its tracks. The ordinance further required that the grading, curbing and paving should be done under the- supervision of the borough engineer and be subject to his approval. The street railway company filed its acceptance of the provisions of this ordinance, entered upon the streets under the provisions of this grant, and has constructed its railway and done the grading and paving required by the ordinance, under the supervision of the borough engineer. The plaintiff seeks to recover damages for the injury to her property resulting from the change of grade. The defendant denies liability on two grounds: (1) There was no petition by the majority of owners of land abutting on the street praying the borough council to pass the ordinance; and (2) The work was not a municipal improvement for which the borough was liable.

The learned counsel representing the appellant concede that prior to the Act of May 16, 1891, P. L. 75, the authorities of a borough had power to ordain the grading of a street without a petition having been presented by a majority of the owners of abutting property praying for the making of the improvement. That this power did exist cannot be questioned, nor did the act of 1891 take away that power. Section 8 of that statute, which confers upon all municipal corporations the power to grade streets and assess the costs and expenses of the work upon property benefited, upon the petition of a majority in interest and number of the owners of property abutting on the line of the improvement, is as to these provisions precisely similar to section 9 of the statute which relates to the exercise of the power to open and widen streets. The effect upon existing legislation was the same in the case of the grant of power by each of these sections of the statute. Prior to this statute the borough authorities had power without a petition to open, widen or grade a street. The effect of section 9 of the statute upon the pre-existing power of the borough authorities to widen a street without a petition was considered by the Supreme Court in Hanover Borough’s Appeal, 150 Pa. 202. It was there held that the power of a borough, of its own motion, to open or widen a street was not impaired by the act of 1891, providing for the passage of ordinances for such purpose upon the petition of a majority of property owners; that there was nothing repugnant in the existence of the two methods of initiating improvements; and that where a borough had properly passed an ordinance under the act of April 3, 1851, for the widening of a street, the proceedings to assess the damages and benefits resulting from the improvement might be taken under the act of 1891. That case rules the question arising out of the absence of a petition of property owners for the improvement in the present case. The Act of May 19, 1897, P. L. 79, applies only to those cases in which the borough authorities seek to impose assessments upon abutting property “according to the foot-front rule,” it had no effect upon the general power of the borough authorities to grade streets without a petition, and that statute contains no repealing clause. The Act of May 22, 1895, P. L. 106, which was considered by the Supreme Court in Dorrance v. Dorranceton Borough, 181 Pa. 164, relates only to proceedings to open, widen, straighten or extend streets, and has no application to cases of grading and paving.

The borough council had absolute power to grant or refuse to permit the street railway company to enter upon the streets of the borough. They had the power to make the grant of the privilege subject to any lawful condition, the condition which the borough councils made a part of the grant was not unlawful, and the acceptance of the grant subject to the condition resulted in a lawful contract between the borough and the street railway company: Allegheny v. Gas & Pipeage Company, 172 Pa. 632; Borough of Duquesne v. Kunze, 7 Pa. Superior Ct. 313. The action of the street railway company, in grading and paving the street, was not unlawful; the company was legally bound to grade the street under its contract with the borough. This contract involved no expenditure of money by the borough, and the letting in this manner involved no violation of law. The railway company was as much the contractor of the borough as if the work had been done for a pecuniary consideration and after a bidding and letting in all the forms required by law. Borough authorities alone have the lawful power to change the grade of streets, and a lawful contract by such authorities which necessarily results in a change of the grade of the highway, must be construed as an ordinance of the borough providing for such change. The change in the grade of this street which resulted from the execution of the ordinance of the borough was a municipal improvement, and the borough is liable. This question' is ruled by Lewis v. Homestead Borough, 194 Pa. 199. That the borough subsequently graded and paved those portions of the street outside of that part which the railway company under the ordinance was required to grade, did not relieve the borough from liability for so much of the grading as this ordinance authorized : New Brighton Boro. v. Peirsol, 107 Pa. 280. Whether the owners of abutting property can escape liability for an assessment for the money expended by the borough in grading the sides of the street, which the railway company was not required to grade, may be a question: Philadelphia v. Evans, 139 Pa. 483. That question is not involved in this case.

The judgment is affirmed.


author: Henderson, J.,

text:
    Richie, Appellant, v. Philadelphia.

      Public officers — Increase of salary — Constitutional officers — Legislative officers — Beal estate assessors.

    The term “public officers” is not restricted merely to offices created by constitutional provisions, but applies to officers who exercise important public duties, have delegated to them some of the functions of government, and whose offices are for a fixed term and whose powers, duties and emoluments become vested in a successor, when the offices become vacant.
    Real estate assessors in counties having a population of 1,000,000 or .over are public officers within the meaning of sec. 13, art. Ill of the constitution of Pennsylvania, which provides that: “No law shall extend the term of any public officer, or increase or diminish his salary or emoluments after his election or appointment.” Such officers are not entitled to the benefit of the Act of May 31, 1907, P. L. 329, which increases the salaries of real estate assessors in counties having a population of 1,000,000 or over from $2,000 to $3,000.
    Argued March 12, 1908.
    Appeal, No. 235, Oct. T., 1907, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1907, No. 3,823, for defendant on case stated in suit of James E. Richie v. Philadelphia.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine the amount of plaintiff’s salary as a real estate assessor of Philadelphia county.
    From the case stated it appeared that on December 31,1903, . the board of revision of taxes of Philadelphia county appointed James E. Richie, the plaintiff, as one of the real estate assessors of the county. At that time the.salary of real estate assessors was fixed by the act of April 12, 1873, at $2,000. On May 31, 1907, an act was passed which increased the salaries of such assessors in Philadelphia from $2,000 to $3,000 per annum. The case stated was to determine whether the plaintiff was entitled to the increased salary, or whether he was a public officer within the meaning of sec. 13 of art. Ill of thé constitution, which forbade any increase of salary of a public officer after his election or appointment.
    The court in an opinion by Willson, P. J., entered judgment for defendant on the case stated.

      Error assigned was in entering judgment for defendant on the case stated.

      John C. Bell and Chester N. Farr, Jr., with, them Charles L. Brovm, for appellant.
    The cases in this state draw a distinction between officers which are denominated “legislative” and officers which are denominated “constitutional,” and hold that the term “public officers” in the section above referred to only applies to those holding such offices as can properly be termed constitutional offices: Commonwealth v. McCombs, 56 Pa. 436; Com. ex rel. v. Weir, 165 Pa. 284; Lloyd v. Smith, 176 Pa. 213; Com. v. Moir, 199 Pa. 534; Kilgore v. Magee, 85 Pa. 401.
    Even should the court hold that the term “public officer” in the constitutional provision now in question applies to legislative as well as constitutional officers, nevertheless, under the decisions in this state, the office of real estate assessor, as constituted in the city of Philadelphia, cannot properly be considered as a public office: Com. v. Black, 201 Pa. 433; Houseman v. Com., 100 Pa. 222; Com. ex rel. McElroy v. Booth, 16 Pa. Dist. Rep. 929.

      Ernest Lowengrund, assistant city solicitor, with him J. Howard Gendell, city solicitor, for appellee.
    An act changing the emoluments of public officers is held to be inapplicable to those in office, and whenever possible will be so construed as not to affect the then present incumbents: Apple v. Crawford County, 105 Pa. 300; Gulden v. Schuylkill County, 149 Pa. 210; Lloyd v. Smith, 176 Pa. 213; Lyons v. Means, 1 Pa. Superior Ct. 608; Fox v. Lebanon County, 4 Pa. C. C. Rep. 393; Rupert v. Chester County, 13 Pa. C. C. Rep. 342; Cornell v. Beaver County, 42 P. L. J. 262; Brooke v. Com., 86 Pa. 163; Lancaster County v. Fulton, 128 Pa. 48; Houseman v. Com., 100 Pa. 222; Com. v. Mathues, 210 Pa. 372.
    The subject has frequently been considered by the lower courts; and whenever, either in the appellate or county courts the question has actually arisen, it has invariably been decided that all public officers, whether constitutional or non-constitutional, were within the scope of this section: Hancox v. Venango County, 20 Pa. C. C. Rep. 508; Com. v. Kromer, 4 Pa. C. C. Rep. 241; Rupert v. Chester County, 13 Pa. C. C. Rep. 342; Koller’s Petition, 9 York L. R. 165; Com. v. Benfield, 5 Pa. Dist. Rep. 382; Evans v. Lloyd, 12 Pa. Dist. Rep. 380; Goodman v. Commissioners, 17 Pa. C. C. Rep. 393; Fox v. Lebanon County, 4 Pa. C. C. Rep. 393; Peeling v. York County, 113 Pa. 108; In re Harbor Master, 14 Pa. Dist. Rep. 719; Baldwin v. Phila., 99 Pa. 164; Com. v. Benfield, 5 Pa. Dist. Rep. 382.
    October 12, 1908:
   Opinion by

Henderson, J.,

By the Act of May 31,1907, P. L. 329, the salary of the real estate assessors in counties having a population of 1,000,000 or over was increased from $2,000 to $3,000. The plaintiff was one of the assessors in the county of Philadelphia at the time the act referred to was approved and claims to be entitled to the increased compensation provided thereby. The defendant objects that the salary of the plaintiff cannot be increased during the continuance of his term because of sec. 13 of art. III. of the constitution, which provides that: “No law shall extend the term of any public officer or increase or diminish his salary or emoluments after his election or appointment.” The question presented is whether an assessor of taxes in the county of Philadelphia is a public officer within the terms of the section quoted. The office of assessor of taxes was provided for by the Act of May 11, 1799, 3 Sm. L. 392, which directed that the citizens of every ward, township and district within the city of Philadelphia and in the several counties of the state should annually elect one citizen resident therein to be assessor for the term of one year, and two other citizens to be assistant assessors for the same time. The subjects of taxation were also designated and the procedure for the assessment of tax prescribed. The Act of April 15, 1834, P. L. 511, directed the assessors and assistant assessors at a meeting or meetings to be held by them to fix a uniform standard of value of the objects made taxable by law. This latter authority was transferred to the county commissioners by the Act of May 15,1841, P. L. 393. Under the act of February 2, 1854, the qualified voters of each ward in the city of Philadelphia were authorized to elect two assessors who were required to perform in their respective wards all the duties which the laws of the commonwealth then enjoined on assessors and assistant assessors. The Act of March 14,1865, P. L. 320, provided for the creation of a board of revision of taxes of the county of Philadelphia to be appo nted by the courts of common pleas. This board was authorized to revise and equalize assessments by raising or lowering the taxation, to rectify errors, to make valuations where they had been omitted, to require the attendance of assessors and other citizens before them for examination on oath, to hear all appeals and applications of the taxpayers; the decisions of the board being subject to an appeal to the court of common pleas. An Act approved April 12, 1873, P. L. 715, changed the method of choosing assessors in Philadelphia and provided for their appointment by the Board of revision of taxes, power being given to that body to fill vacancies and to remove any assessor for incompetency, neglect of duty or refusal to' faithfully perform the duties required by law.. By subsequent statutes this board was given authority to divide the city into assessment districts and to alter the same. The statute prescribing the duties of the assessors requires them to make an annual list of taxable persons and property in their respective' districts with a just valuation of the same, marking such'property as in their opinion is urban, rural or subui’ban, to furnish an alphabetical list of taxable persons with their occupations and residences and to make return of the value' of new bui dings not included in their original assessments. They are also required under the Act of June 1,1889, P. L. 420, to furnish copies of blank forms to '.all taxable persons and corporations for returns to be made under oath of personal, property subject to state taxation, and to make return for any. persons who refuse to furnish such statement under oath.The'appellant’s main proposition is that the term “public officer” only applies'to offices existing by requirement of the constitution as distinguished from those created by the legislature and that as the office of assessor of taxes is not ordained by the constitution the legislature is not restrained from. in-, creasing the salaries of such officers. It cannot be disputed that there is a distinction between the situation of one who-occupies a constitutional office and that of an officer whose position is created by statute. The former has an exemption from the control of fhe legislature which does not exist in favor of the latter, and if we were warranted in concluding that a “public officer” in contemplation of the constitution was-only one whose existence that instrument provided for, the appellant’s position would be clearly correct. But this view is too narrow when we take into consideration the object of this limitation of legislative power and the comprehensive language in “which it is expressed. Many important offices exist which áre not provided for by the constitution, and the number is m-creasing from year to year. The duties of these officials are various and of some of them highly important. The compensation of' many of them is large, their existence is in harmony with the constitution and we must assume that the framers of that instrument did not overlook the fact that the necessities or convenience of the commonwealth would call for an increase of public officers with various new duties. It is hardly to be supposed that the general expression of the con-; stitutionwould have been used in view of the number of offices then in existence and likely to be created by the will of the legislature if the prohibition was only to apply to the comparatively small number whose existence was required by that instrument. It is more in consonance with the spirit of the section under consideration as well as with its terms to hold that all those exercising important public functions by authority of law are embraced within the description of “public officer”; and this, we think, is the effect of the adjudications on the subject. In Lancaster County v. Fulton, 128 Pa. 48, it was expressly decided that a county solicitor was a public officer within the meaning of sec.' 13 of art. III. It is not pretended that that office is created by the constitution, and this case seems to us a sufficient authority to sustain the judgment of the court below on this point. The learned counsel for the appellant call attention to the fact that the constitutional provision was not discussed in that case and that this part of the opinion of the court had no direct bearing on the issue involved, but it was a pertinent statement of the law quite relevant to the matter under consideration and unequivocal in its meaning. Brooke v. Com., 86 Pa. 163, is also an authority to the same effect. The question there related to the term of office of a member of the select council of the city of Philadelphia. The discussion in the opinion clearly shows that the section we are considering is applicable to the office of a city councilman. In Houseman v. Com., 100 Pa. 222, it was held that a collector of delinquent taxes in the city of Philadelphia was a public officer subject to removal under sec. 4 of art. VI. of the constitution. It is manifest from the opinion' of the court in that case and the reference therein to sec. 13 of art. III. of the constitution that the terms “officers,” “public officers,” etc., were regarded as embracing state, county and municipal public officers. The same conclusion is implied in Com. v. Mathues 210 Pa. 372, and of the same purport is the decision in Pittsburg’s Petition, 217 Pa. 227. The argument in the latter case that the legislation then under consideration would have the effect to extend the 'term of the councilmen in the city of Allegheny in violation of the third article of the constitution was met by a reference to Com. v. Moir, 199 Pa. 534, and Lloyd v. Smith, 176 Pa. 213, in which the overlapping of official terms and duties in the case of a substitution of a new system for one under which government had been previously carried on was justified as a temporary expedient and for that reason not unconstitutional. In all of these cases the reference is to offices not created by the constitution. The authorities presented by the appellant in support of this part of the case do not turn upon the section of the constitution which we are considering. They relate to the power of the legislature to abolish or diminish the term of an office not commanded by the constitution. There is a very clear distinction, however, between the power of the legislature to abolish or regulate an office which it created, the control over which is unlimited, and a restriction of the constitution over such power as applied to a particular subject. Even if it be considered inconsistent that the legislature may abolish an office the term of which it may not extend, or by such abolition entirely take away a salary which it may not increase, the restraint is nevertheless imposed by the paramount law of the state and is not to be got rid of by interpretation in the face of clear and unambiguous language. The power of the legislature to abolish an office not ordained by the constitution is unquestioned, for there is no restraint on such action, but as to both constitutional and legislative offices the command is that no law shall extend the term or increase or diminish the salary or emoluments after the election or appointment of the incumbent.

The second contention is that even if the constitutional prohibition is applicable to legislative as well as constitutional officers, nevertheless, a real estate assessor cannot be properly considered a public officer. It is no doubt true that there are many persons engaged in the public service in subordinate positions exercising functions of such an inferior character that they could not be properly considered public officers within the meaning of the constitution; this much is indicated in Com. v. Black, 201 Pa. 433, and Houseman v. Com., 100 Pa. 222, in the latter of which the court expressed the opinion that policemen, firemen, watchmen and superintendents of public property under the orders of the municipal department were subordinate ministerial agents or employees, at the most, petty officers not intended to be embraced in the constitutional provision, and therefore subject to appointment and removal according to legislative regulation. Where, however, the officer exercises important public duties and has .delegated to him some of the functions of government and his office is for a fixed term and the powers, duties and emoluments become vested in a successor when the office becomes vacant such an official may properly be called a public officer. The powers and duties attached to the position manifest its character. A consideration of the duties imposed upon real estate assessors leaves no doubt in our minds that the relation which they sustain to the maintenance of government is of such consequence that they should be considered public officers. The functions which they perform are of prime importance. Their duties are designated by statute; they serve for a fixed period; act under oath, the duties they perform are semi-judicial in character and their services are indispensable in the fiscal system as established by the state. It was decided in Williamson’s Estate, 153 Pa. 508, that assessment is primarily the work of the assessors and the powers of the Board of revision extend only to the work of revision. If the assessor neglect to put a valuation on any property he has listed the board may supply the omission, and where property that should have been assessed has been overlooked by the assessor the board may place it on the list and fix its value. Their only authority to make a valuation exists where the assessors have omitted to make it. The assessors alone are invested with power to list the property and fix its value in the first instance. A proper discharge of their duties is a matter of great consequence to the taxable inhabitants and involves judgment, intelligence, integrity and a wide -knowledge of values. That the office was considered important is shown by the limited number of such officials in the city of Philadelphia and the considerable compensation accorded to them. The duties imposed place them in a position of such dignity and responsibility that they may well be considered public officers and as such subject to the operation of sec. 13 of art. III. of the constitution. We have given careful consideration to the very ingenious and able' argument of the counsel for the appellant, but are not persuaded that the court below was in error in the conclusion reached.

The judgment is affirmed.


text:
    Scott’s Estate.

      Will — Conversion—Presumption—Blending of real and personal estate.

    The presumption is against conversion by will, which is a legal fiction introduced on equitable principles to effectuate the intention of the testator. It is only to be resorted to when actually necessary to carry out the testamentary purpose. A direction to convert must be positive and the instrument resorted to must decisively fix on the ■land the quality of money. The direction to sell must be imperative ■and explicit. If it be contingent on the election or consent of the legatee ■or devisee or other person than the executor, such power of sale does not work a conversion, even where the will provides for a payment of legacies and distribution of the remainder of the fund. And this is so although the contingency on which the sale depends may never arise.
    ■ Testator directed “that at any time after the decease of my wife, my said executors may be required by a majority of those having an interest therein to dispose of all that portion of my real estate on which I now reside, together with all the personal estate then having properly belonged to my said wife, and divide the proceeds of such sale in manner and proportion as follows:” He further directed that if his wife died prior to his youngest son arriving “at the age of twenty-one years, sái’d sale and distribution shall not take place until that period shall have arrived.” Held, that the direction to sell did not operate to produce a conversion at- the death of the testator, and no conversion •occurred until the real estate was sold by the direction of a majority of the surviving children.
    Argued April 14, 1908.
    Appeal, No. 8, April T., 1908, by John H. Scott, from decree of O. C. Allegheny Co., Dec. T., 1906, No. 70, dismissing exceptions to adjudication in Estate of John Scott, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that testator by his will directed as follows:
    “And I further will and direct that at any time after the decease of my wife, my said executors may be required by a majority of those having an interest therein to sell and dispose of all that portion of my real estate on which I now reside together with all the personal estate then having properly belonged to my said wife, and divide the proceeds of such sale in manner and proportions as follows, viz.:
    “To each of my sons George, and Wilson, one thousand dollars and to each of their sisters Clara and Seeneth the same amount that had been awarded to each of their elder sisters under the first distribution as above directed, and in the event of there being a surplus over and above the said distribution as above directed, I order and direct that said surplus be equally divided amongst all my children that may be then living, and I further order and express as my will that in the event of my beloved wife being removed by death, previous to the time at which my youngest son would have arrived at the age of twenty-one years said sale and distribution shall not take place until that period shall have arrived.
    “My oldest sons Samuel and James being already provided for they are not to be held as having any further interest in my estate except as in the contingency above provided for.”
    The sale of J. Harvey Scott’s interest was -made under execution to one Peter Ivory. All of the children named in the will survived the testator, and all but one of the children survived the widow. The property was sold at the instance of the children on March 23, 1906.

      The court held that there was no conversion until actual sale of the land, and that the interest of J. Harvey Scott was subject to the Ivory judgment.

      Errors assigned were in dismissing exceptions to adjudication.

      W. H. S. Thomson, with him Frank Thomson, for appellant.—
    When a testator by his will blends his real and personal estate, so as to show that he intends to create a common fund, and to bequeath that fund as money, an intention to work a conversion of the real estate will be implied: Burr v. Sim, 1 Wharton, 252; Paist’s Appeal, 1 Monaghan, 523; Marshall’s Estate, 147 Pa. 77; Roland v. Miller, 100 Pa. 47; Hunt’s Appeal, 105 Pa. 128.
    Where the will cannot be fully executed, without making sale of the property, an equitable conversion will be considered to have taken place, though there is no positive direction to sell: Rose’s Estate, 19 Phila. 98; Fahnestock v. Fahnestock, 152 Pa. 56.

      G. C. Lewis, with him George W. Flowers, for appellees.—
    As to the alleged conversion caused by the blending of the real and personal estate of the testator, it is not every mixture or blending of the two kinds of estates that will, in the absence of an express direction to sell, work an equitable conversion. It must be such a “blending of the real and personal estate as to show that the testator intended to create a common fund out of both real and personal estate and to bequeath the fund as money:” Hunt’s Appeal, 105 Pa. 128; Marshall’s Est., 147 Pa. 77; Roland v. Miller, 100 Pa. 47; Perot’s App., 102 Pa. 235; Sauerbier’s Est., 202 Pa. 187; Caldwell v. Snyder, 178 Pa. 420.
    In the absence of express and imperative direction to sell, a power of sale or direction to sell, if contingent upon the consent of the beneficiaries or contingent upon the election of some other person than the executors, will not work an equitable conversion, even although the proceeds of such sale are directed to be distributed in unequal proportions; or to the payment of certain specific legacies, and distribution of the remainder: Nagle’s Appeal, 13 Pa. 260; Anewalt’s Appeal, 42 Pa. 414.
    August 00, 1908:
   Opinion by

Henderson, J.,

The question here is whether an equitable conversion was effected by the will of the testator at the time of his death or whether such conversion occurred when the real estate was sold by the direction of the surviving children. The presumption is against conversion, which is a legal fiction introduced on equitable principles to effectuate the intention of the testator. It is only to be resorted to when actually necessary to carry out the testamentary purpose. A direction to convert must be positive and the instrument resorted to must decisively fix on the land the quality of money. The direction to sell must be imperative and explicit: Henry v. McCloskey, 9 Watts, 145; Boshart v. Evans, 5 Whart. 551; Bleight v. Bank, 10 Pa. 131; Nagle’s Appeal, 13 Pa. 260; Stoner v. Zimmerman, 21 Pa. 394; Anewalt’s Appeal, 42 Pa. 414; Neely v. Grantham, 58 Pa. 433; Leiper v. Thomson, 60 Pa. 177; Jones v. Caldwell, 97 Pa. 42; Sauerbier’s Estate, 202 Pa. 187. If it be contingent on the election or consent of the legatee or devisee or other person than the executor, such power of sale does not work a conversion, even where the will provides for a payment of legacies and distribution of the remainder of the fund: Nagle’s Appeal, 13 Pa. 260; Anewalt’s Appeal, 42 Pa. 414. And this is so although the contingency on which the sale depends may never arise. The will under consideration does not contain a positive and absolute direction to sell, and it cannot be contended that a conversion took place because of an express command. It is argued, however, that a conversion is implied from the fact that the testator blended real and personal estate and thereby created a fund from both which he disposed of as money; and further that the will could only be given effect by a sale of the land and that a conversion arose from this necessity. As to the first proposition it may be said that no personal estate of the testator is authorized to be sold, nor is any fund composed of the proceeds of real and personal property provided fór. The reference to personal estate is to “all the personal estate then having properly belonged to my said wife.” Just what the testator meant by that language is not clear, but it certainly does not give us any support for the conclusion that it is a bequest of any part of his own property. If, however, the direction were applicable to the testator’s own estate it would rather indicate an intention to dispose of his personal property in the same proportions as he provided for in the case of the real estate.

We are not convinced that the provision for distribution of that part of the estate in question necessarily and absolutely implies a conversion. The testator evidently understood the .convenience of a sale as an aid to a division, but he very clearly and plainly made the power to depend on the decision of a majority of those entitled to share in that part of his estate and it is only by such consent that vitality could be imparted to the power. If he intended to provide for an unqualified sale we must assume that he would have done so. It does not follow, .however, that intestacy would result from his failure so to do. In Caldwell v. Snyder, 178 Pa. 420, there was a power of sale in the executors, subject to the agreement of the wife and a majority of the heirs of the testator. It was there held that notwithstanding the power of salé a right of partition existed as there was no conversion and the power of sale could only be called into life by the agreement of the widow and heirs. In that case the devisees took unequal shares by reason of advancements and the widow also had an interest, but neither of these was considered an obstacle to partition. In like manner the interests of the devisees here might have been ascertained. We are unwilling to hold that the minority of those entitled to take could be deprived of their estate by the refusal of a majority to move the executors to make the sale. It is a more satisfactory view of the will that the testator provided this method of dividing the estate if the persons to whom it was devised chose to adopt it. But in the absence of such election they were left to their interest in the land. We do not consider Fahnestock v. Fahnestock, 152 Pa. 56, cited by the appellant, an authority for the position contended for. In that case there was provided an express authority to sell all the real and personal estate of the testator at public or private sale and to execute deeds for the real estate. This of itself would not have been sufficient because of the absence of a direction to sell, but it was considered from the whole face of the will to be the intention of the testator to provide for a conversion. The executors were given extensive authority'; were created trustees as to part of the estate; were authorized to make investments in mortgages or other securities, collect the interest or income, pay over the same, and as to one of the legatees a spendthrift trust was created. In view of these provisions the court was of the opinion that it was impossible to comply with certain requirements of the will without a conversion of the real estate. The facts are very different from those presented for our consideration and lead to a very different legal conclusion; Nor is Allison v. Wilson’s Executors, 13 S. & R. 330, pertinent, for in that case there was an undoubted conversion by the will. The command to sell did not depend upon any contingency or condition independent of the executors. The power of sale in the will which we have before us depended for its efficiency on the action of a majority of the testator’s children living at the time of the sale. It was contingent, therefore, and did not operate to produce a conversion at the death of the testator. It follows that the interest of J. Harvey Scott was subject to the Ivory judgment and that by the sale the defendant’s interest was divested.' The decree of the orphans’ court is in harmony with the law applicable to the case and is affirmed.


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    Winnett, Appellant, v. Carnegie Natural Gas Company.

      Pipe line companies — Expert testimony — Opinion of witness.

    In an action against a pipe line company to recover damages for injuries to land, a witness called to testify as to the value of the land, may express an opinion as to the money damages sustained, based upon what he saw and knew, but not upon what he had merely heard.

      Pipe line companies — Grant of right of way — Injuries to land.

    Where an owner of land grants to a pipe line company the right to lay its pipes under his land, the company is not liable for any damages to the owner if it lays its pipes within the limits of the right of way,
    • according to the methods customarily adopted in prosecution of such undertakings, and without negligence.
    Where an owner of land grants to a pipe line company the right to lay lines of pipe on his land, and wherever the word “line” is used it is used in the plural, the laying of one pipe line within the limits of the grant is not an exhaustion of the right, and the company may thereafter lay other lines.
    If after such a grant the land changes ownership, and the new owner for a valuable consideration confirms the grant, he cannot prevent the company from laying new lines within the right of way, although he may never in fact have seen the original grant.

      Appeals — Assignments of error — Evidence.
    An assignment of error to a ruling admitting evidence is defective, which fails to set forth the evidence admitted, and will not be considered.
    Argued April 21, 1908.
    Appeal, No. 189, April T., 1908, by plaintiff, from judgment of C. P. Washington Co., Aug. T., 1906, No. 148, on verdict for plaintiff in case of J. H. Winnett v. The Carnegie Natural Gas Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries to land alleged to have been sustained by the construction of a pipe line.
    At the trial Thomas Hetherington, a witness for plaintiff, was asked this question;

      “Q. Mr. Hetherington, admitting that-the defendant company had laid a twenty-four inch gas line across Mr. Winnett’s farm in the spring and summer of 1906, then from what you' saw on the ground when you looked at it after the completion of that line, give your estimate of the damages that he suffered prior to the first of August of that year through the work, that was done there, and the manner in which the farm was affected up to that time.”
    The question is objected to for the reason that it is not competent to state a supposed case to the witness and have him make an estimate on the basis of any supposed acts that are to be assumed by him; that the question should be confined to his estimate of the damages that he actually saw done on the ground.
    The Court: Objection sustained and offer overruled and bill' sealed for the plaintiff. [1]
    The court charged in part as follows:
    [Now the contention of the plaintiff is, first, that the company had no right to lay that twenty-four inch pipe line across that farm for the reason, first, that they had no written grant from Mr. Winnett, the plaintiff, allowing the laying of such a line; and, second, that they had no right under their charter for the reason that they had not filed any bond to secure him his damages. The second complaint in the statement is that, even granting that they had a written grant from Mr. Winnett to lay the pipe line, they exceeded their rights under that grant and in laying the line went outside of the limits that are fixed by the grant, and in doing so destroyed and injured the. soil and the grain and the growing crops and fences and thus damaged the plaintiff. Now, as I said before, that raises two' separate questions of fact and one of law.] [3]
    [Now as to the special question. It is this: Taking it (on the question of law reserved by the court) that the defendant company had under the grants of right of way across the plaintiff’s farm which it held and which have been introduced in evidence in this case, the right to lay the additional pipe, did the said company in laying said twenty-four inch pipe line unlawfully go outside of the limits of the said various rights of way in its hauling, digging, and laying said line, and did it thus .unlawfully injure the soil, the grass, the fences, the grain and growing crops upon said land to. the damage of the plain-, tiff, and, if so; what was the amount of 'damages that he thus sustained?] [4]
    • Defendant presented this point:
    2. If the jury find that the twenty-four inch pipe line, mentioned in plaintiff’s statement of claim, was laid on the eight-foot strip of ground mentioned in the right-of-way grant, exhibit No. 2, and that the entries made, and the things done, outside of said strip, by the defendant’s contractors and employees in connection with the laying of said pipe line, were all reasonably necessary as incidental to such laying, doing the same in the ordinary, usual .and customary way of laying pipe lines, then the defendant is not liable for damages in this action* outside of those mentioned in the next point. Answer: That is affirmed as applied to a special question of fact which the jury are to determine, but as to the general issue it is refused, subject to the question of law reserved. [5]
    The jury returned as follows:
    ■ (a) Verdict on general issue.
    And now, to-wit: December 13, 1907, we, the jurors impaneled in the above-entitled case, find in favor of the plaintiff on the general issue in this case and assess the damages that he has sustained at $375, this finding being under the instruction of the court that the defendant company had no right under their various grants offered in evidence to lay the twenty-four inch line of pipe across the plaintiff’s farm.
    (b) Finding of jury on special question of fact submitted to them and returned as part of their verdict.
    And now, to-wit: December 13, 1907, we, the jurors impaneled in the above-entitled case, find in favor of the plaintiff on the special question of fact submitted to us and that he sustained damage in the sum of $150 for injury unlawfully done to the soil, the grass, the fences, the grain, and the growing crops upon his farm outside of the limits of the various rights of way as described in the written grants offered in evidence in this case and taking said grants to vest in the defendant company the right to lay the twenty-four inch pipe line.
    On motion for judgment on the verdict the court made the following order:
    And now, January 28,1908, motion of plaintiff for judgment came on to be heard and was argued by counsel, whereupon it is ordered, adjudged and decreed: First. That the defendant company under the written contracts marked exhibits 1, 3 and “A” on the record of this case, had a right to lay the' twenty-four inch line which was laid by it on or about June 1, 1906. Second. That in laying said line the only trespass they committed was to land outside of the eight feet right of way which they own and that judgment be entered in favor of the plaintiff and against the defendant in the sum of $150 and costs upon the special finding of fact returned by the jury.

      Errors assigned were (1, 2) rulings on evidence; (3-5) above instructions; (7) the order of the court.

      John H. Murdoch, with him Edgar B. Murdoch, for appellant.

      James I. Broumson, for appellee.
    October 12, 1908:
   Opinion by

Henderson, J.,

The first assignment of error relates to the competency of the witness, Hethrington, to testify in regard to the amount of the plaintiff’s damage. The action is trespass- and the complaints were (a) that the defendant had entered without right on the plaintiff’s land and constructed a pipe line; (b) that, conceding the defendant’s right to lay the line under the grants set up by the latter, the work was not done wholly within the limits of. the grants and the plaintiff was also injured by the negligent manner in which it was done. The action was brought- August 1, 1906, at which time the trench had not been filled up. The damage to crops and to the fence had occurred earlier in the season. The witness referred to was not at the premises until October of that year. The counsel'for the plaintiff proposed to prove the money value of the injury sustained by the plaintiff from what the witness had heard of the injury as well as from what he had seen. The court admitted as much of the offer as related to what the witness saw and knew, but excluded any opinion formed from what the witness had heard. This action was clearly within the rule applicable in such cases. The broken fence, the wagon tracks, the clay thrown over the meadow and the abandoned pasture were physical facts observable by the eye and subjects of common experience. They did not create a necessity for the testimony of an expert on a hypothetical case. It may be that more damage would be done in laying a twenty-four inch pipe than one of smaller diameter, but the question is not to be determined theoretically from the size of the pipe, but by the conditions as they existed on the ground, and a witness who did not see how the work was done nor the crops injured was not qualified to speak of that which had not come under his observation. In order to render him competent to testify to the whole amount of damage sustained by the plaintiff it should be made to appear that he had personal knowledge of all the facts producing damage.

The second assignment is not in accordance with rule 16 of this court, which requires that when the error assigned is to the admission or rejection of evidence, the specification must quote not only the questions or offers and the ruling of the court thereon, but also the testimony admitted, together with a reference to the page of the paper-book where the matter may be found. An assignment of error to a ruling admitting evidence is defective which fails to set forth the evidence admitted, and will not be considered: Swope v. Donnelly, 190 Pa. 417; Coverdill v. Heath, 12 Pa. Superior Ct. 15. This subject has been so frequently referred to in decisions of the Supreme Court and this court that we do not deem it necessary to make further comment thereon.

We do not find any error in the answer of the court to the defendant’s second point. The defense set up was that the plaintiff had granted to the defendant the right to lay the pipe and that what was done was within the terms of the grant. It was not alleged that there was express authority to do everything that was done, but that there was implied in the grant authority to do the things necessarily incidental to the undertaking. This included the right to enter upon the land, remove fences for the transporting of pipe and other materials, excavate earth and perform any other acts necessary to the accomplishment of the object, subject, however, to the restriction on the defendant that the work be done with the least injury to the plaintiff and without negligence. This view of the defendant’s right was presented in the point, and all that the court said in affirming it was that if the pipe was laid within the limits of the right of way, and what the defendant did in laying it was a reasonably necessary incident of the usual and customary way of doing that kind of work, then the defendant was not liable. This is a fair statement of the law applicable to the case. It was implied in the contract between the parties that the pipe should be laid according to the customary and usual way of doing that kind of work. To that standard, the defendant could be held and according to that standard it had a right to proceed. If the plaintiff could show that an unusual method of laying the pipe was adopted and one injurious to him, he might have done so, but if the defendant conducted the work according to the methods customarily adopted in the prosecution of such undertaldngs, with the exercise of reasonable care in so doing, there was no liability. The burden of proof was on the plaintiff to present a state of facts showing that the defendant had exceeded its privilege.

The remaining exceptions relate to the charge of the court. The case as presented by the plaintiff contained three alternative propositions: (1) that the defendant had no right to enter on the land to lay the pipe and was, therefore, liable for everything done thereon; (2) if the defendant had a right under its grants to lay the pipe it was liable for any injury done to the land, crops, fences, etc., not reasonably necessary in the performance of the work; and (3) if any part of the line was laid outside of the limits of the strip granted, the defendant was liable for that as a continuing trespass to the same extent as if it had entered unlawfully. The appellant alleges that the court excluded from the consideration of the jury any injury resulting from the manner in which the work within the right of way was done and that the question of fact as to damage (assuming the right of the defendant to lay the pipe) was limited to injury done to the land outside of the right of way. The court might well have done this, for at the time the action was brought the trench was not filled nor the work completed, and the injury now alleged had not become a cause of action, but we do not understand the court to have so charged the jury. The instruction was that the defendant was only on the farm for a specific and limited purpose; that the plaintiff was the absolute owner of the land for all other purposes and that his rights were not to be interfered with any further than was reasonably necessary to accomplish the object which the defendant had in view; that it was the duty of the defendant to lay the pipe line so as not unnecessarily or unreasonably to injure the farm; that due regard was to be had for the plaintiff’s rights and that the defendant was to do him as little damage as possible; that going beyond that and doing things that were unreasonable, talcing into consideration the situation, would entitle the plaintiff to damages. In the absence of a request for special instructions upon the subject we think there was a sufficient submission to the jury of the testimony bearing upon the whole damage sustained by the plaintiff. It may well be doubted whether there is any evidence that the line was not laid within the right of way, but the charge of the court was sufficiently broad to include such an injury. The jury was clearly given to understand that the defendant’s right to lay the line was confined to the right of way and that whatever was done, not necessarily incident to the exercise of that right, was unlawful.

The next objection presented, is that under the Rainey and Floyd grant of May 26, 1890, the right of the defendant was exhausted when one line of pipe was laid and that the subsequent laying of the twenty-four inch line was a trespass. This construction of the instrument is not consistent with the object and terms of the grant. It is recited therein, that the defendant has surveyed a route “upon which to lay down and construct pipe lines for the transportation of natural gas,” and in consideration of the premises, and the sum of $206 to the grantors paid, the defendant was authorized and empowered to lay “lines of pipe” for the purpose of transporting gas on the strip of land in the grant described. There was also given the right of egress and regress over and upon the farm of the first parties for the purpose of “ the laying of pipe lines in the ditch or ditches to be dug thereon.” Further provision was made that in case at any time the “said pipe lines” should be abandoned, the defendant should have the right to remove the material that it had placed on the farm of the grantors. The language of this deed leaves no doubt in our minds that the grantee was authorized to lay more than one line on the designated strip if it so desired. No plainer terms could be used indicating such authority. When the plaintiff acquired title to the premises, he executed a paper dated January 18, 1900, reciting the fact of the grant by his predecessors in title and the fact that the grantee therein named desired to acquire an additional strip of four feet for the purpose of laying another line and granting to the defendant the additional strip desired parallel with and adjoining the right of way granted by the Rainey and Floyd deed. A question having arisen as to the effect of the sheriff’s sale of the Rainey and Floyd title to the land on which the right of way was located, the plaintiff on September 10, 1901, delivered to the defendant a paper confirming the Rainey and Floyd grant, together with all the rights and privileges connected therewith, for which confirmation the plaintiff received $200. Whatever may have been the defendant’s situation, with reference to the Rainey and Floyd grant as the result of the sheriff’s sale, the effect of the paper of September 10, 1901, was to commit the plaintiff to the terms of the former grant and to give it the same effect upon his title to the farm which it had while Mrs. Rainey and the Floyds were the owners thereof. As the original grant would have permitted the defendant to lay more than one line along the right of way, as against those who then owned the farm, the same effect followed the execution and delivery of the confirmation by the plaintiff. The fact that the plaintiff may not have seen the Rainey and Floyd grant does not alter the situation. He received a valuable consideration for revitalizing it, if that were necessary, and in the absence of fraud, accident or mutual mistake he was bound by the terms of the paper which he executed. There is no evidence in the case on which a chancellor would be. justified in reforming the confirmation document, and we see no reason why it should not have the effect which its tenor imports and to accomplish which it was evidently given. The conclusion reached by the learned trial judge is in harmony with the language of the grant and with the apparent intention of the parties.

The assignments are overruled and the judgment affirmed.


text:
    Patterson Coal & Supply Company, Appellant, v. Pittsburg Railways Company.

      Negligence — Street railways — Breaking of trolley wire — Killing of horses — Presumption—Evidence.
    An action against a street railway company to recover damages for the death of two horses, cannot be sustained where the only evidence offered by the plaintiff is that a trolley wire broke, fell upon the horses passing beneath it, and killed them. In such a case the maxim res ipsa loquitur has no application.
    The maxim res ipsa loquitur is in itself the expression of an exception to the general rule that negligence is not to be inferred but to be proved affirmatively. The ordinary application of the maxim is limited to cases of an absolute duty, or an obligation practically amounting to that of an insurer. Cases not coming under one or both of these heads must be those in which the circumstances are free from dispute and show, not only that they were under the exclusive control of the defendant, but that in the ordinary course of experience, no such result follows as that complained of.
    Argued April 17, 1908.
    Appeal, No. 192, April T., 1908, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1903, No. 693, on verdict for defendant in case of Patterson Coal & Supply Company v. Pittsburg Railways Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for the death of two horses. Before Swearingen, P. J., specially presiding.
    The facts appear by the opinion of the Superior Court.
    The court gave binding instructions for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      A. C. Johnston, for appellant,
    cited: Uggla v. West End St. Ry. Co., 160 Mass. 351 (35 N. E. Repr. 1126); Giraudi v. Electric Imp. Co., 107 Cal. 120 (40 Pac. Repr. 108); Volkmar v. Ry. Co., 134 N. Y. 418 (31 N. E. Repr. 870); Haynes v. Raleigh Gas Co., 114 N. C. 203 (19 S. E. Repr. 344); Alexander v. Nanticoke Light Co., 209 Pa. 571; Crowe v. Nanticoke Light Co., 209 Pa. 580; East End Oil Co. v. Torpedo Oil Co., 190 Pa. 350; Fitzgerald v. Electric Illuminating Co., 200 Pa. 540.

      Don Bose, with him Clarence Burleigh, James C. Gray and Wm. A. Challener, for appellee,
    cited: Kepner v. Harrisburg Traction Co., 183 Pa. 24; Uggla v. Ry. Co., 160 Mass. 351 (35 N. E. Repr. 1126); Smith v. East End Electric Light Co., 198 Pa. 19; Aument v. Tel. Co., 28 Pa. Superior Ct. 610; Giraudi v. Electric Imp. Co., 107 Cal. 120 (40 Pac. Repr. 108); Volkmar v. Ry. Co., 134 N. Y. 418 (31 N. E. Repr. 870); Haynes v. Raleigh Gas Co., 114 N. C. 203 (19 S. E. Repr. 344); Alexander v. Nanticoke Light Co., 209 Pa. 571; East End Oil Co. v. Torpedo Co., 190 Pa. 350; Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540.
    October 12, 1908:
   Opinion by

Porter, J.,

The plaintiff brought this action to recover the value of two horses which had been killed, while being driven along a public highway, by the falling of a trolley wire. The statement averred that “the injuries complained of were wholly due to the carelessness and negligence of said defendant in the construction of said wire and their failure to keep the same in a sound and safe condition and proper state of repair.” At the trial the plaintiff produced evidence that the horses were being driven by their servant along a public highway, leading from the City of Pittsburgh to the Borough of Espíen, that there was a double track street railway along the highway and, the road being narrow, the horses drawing a heavy wagon were being driven along one of the railway tracks, and that the trolley wire suddenly broke and fell upon the horses, the electric current killing both of the horses within two minutes. This was the only evidence as to the circumstances of the accident or the cause which produced it. There was no evidence offered tending to show negligence in the construction, inspection or repair of the trolley wire or its attachments, and if negligence could be imputed to any person under the evidence it had to be inferred from the mere fact that the trolley wire fell. The court below gave binding instructions in favor of the defendant, and plaintiff appeals.

The plaintiff failed to produce evidence that the street railway upon which its horses were being driven or the trolley wire, which fell upon the horses, was the property of, had been constructed or was being operated by this defendant company, and the ruling of the court below' could be sustained' on that ground. Assuming, however, that the defendant company was the owner and operator of the street car line in question and responsible for the duty of keeping the various appliances in repair, the evidence was still not sufficient to warrant the court below in permitting a jury to draw an inference of neglect upon the part of the defendant company. The trolley wire is an essential appliance in the operation of a street railway. The question raised by this specification of error is, ought a jury to be permitted to infer negligence upon the part of a street railway company from evidence which merely establishes that the trolley wire broke, without more? The general rule undoubtedly is that negligence must be affirmatively proved, and is not, in the absence of a contract relation between the parties, to be inferred from the mere happening of an accident. The present chief justice said, in Oil Company v. Torpedo Company, 190 Pa. 350, “The maxim res ipsa loquitur is in itself the expression of an exception to the general rule that negligence is not to be inferred but to be proved affirmatively. The ordinary application of the maxim is limited to cases of an absolute duty, or an obligation practically amounting to that of an insurer.. Cases not coming under one or both of these heads must be those in which the circumstances are free from dispute and show, not only that they were under the exclusive control of the defendant, but that in the ordinary course of experience, no such result follows as that complained of.” This rule prevails even where a party is engaged in dealing with an element naturally dangerous: Smith v. Electric Light Company, 198 Pa. 19; Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540; Aument v. Pennsylvania Telephone Co., 28 Pa. Superior Ct. 610. There is no necessity for an extended discussion of the question raised by this record, which has been considered by the Supreme Court and determined adversely to the contention of the appellant, in a case which arose under almost similar circumstances: Kepner v. Traction Co., 183 Pa. 24. In that case the evidence established that a trolley wire broke and fell to the ground, frightening.the horse of the plaintiff and resulting in the serious personal injury of the plaintiff. The wire did not in that case touch either the plaintiff or his horse, but the decision was not made to turn upon the absence of that incident. Whether evidence of the breaking of the trolley wire, without more, was sufficient to sustain an inference of negligence upon the part of the street railway company which maintained the wire, was the only question considered in the clear and able opinion of Judge McPherson who tried the case in the court of common pleas of Dauphin County. That learned judge held that a jury should not be permitted to infer negligence from such evidence alone, and the opinion clearly indicates that the case was made to turn upon that question. Near the conclusion of the opinion we find this significant sentence: “But I may point out in conclusion that if I am wrong in the view I take of our own authorities, the facts now before the court present the question distinctly : shall negligence be presumed against a street railway company from the mere happening of an injury to a person on the highway, caused by an appliance of the company’s business? There is nothing here except the single fact, that the wire broke; for anything that appears, it might have been struck by lightning, or blown down by a high wind, or broken by the fall upon it of a missile thrown by a stranger, or torn apart by some inevitable accident.” This was also the view in which the case was considered by the Supreme Court, as is made manifest by the opinion of Mr. Justice Mc-Collum : “The wire was an essential appliance of the defendant, in the operation of its road, and it is contended that the breaking of it raised a presumption of negligence which, unanswered, furnished adequate ground for a recovery in the suit in accordance with the .plaintiff’s claim. The learned court below thought that the circumstances shown by the evidence did not authorize the presumption contended for, and accordingly entered a nonsuit, which it refused to take off. The question presented by the appeal from the refusal to take off the nonsuit is whether the court erred in so holding.” Careful consideration of the entire opinion of the Supreme Court in that case can only lead to the conclusion that the decision was based upon the ground that the plaintiff, in proving only that the trolley wire had broken, had not produced sufficient evidence to sustain a finding that the defendant had been guilty of negligence. That decision rules this case.

The judgment is affirmed.


author: Beaver, J.,

text:
    Fogal v. Swart, Appellant.

      Easement — Building inspection — Extinguishment of easement — Statute of frauds.

    A parol agreement between the owners of servient and dominant tenements will not extinguish a servitude created by deed; this can be only by deed or note in writing, or operation of law.
    Where the plaintiff in a bill in equity asserts against the defendant a building restriction line established by the former owner of the lots of the plaintiff, the defendant and others, the defendant cannot avoid the restriction by proof that plaintiff’s vendor had verbally assented to the abolition of the building line, and had subsequently signed an agreement in which all the lot owners joined agreeing to its abolition, if it appears that such agreement was signed by the son of the vendor, without authority, verbal or written, and was not called to the attention of the father until after the date of the deed to the plaintiff.
    Argued April 27, 1908.
    Appeal, No. 220, April T., 1908, by plaintiff, from decree of C. P. No. 3, Allegheny Co., May T., 1907, No. 9, on bill in equity in case of W. T. Fogal v. Wm. M, Swart.
    Before Pice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Swearingen, P. J., found the facts to be as follows:
    1. Milton I. Baird, the owner of a tract of land in Scott township, Allegheny county, Pennsylvania, laid the same out into a plan of lots called “Espy Farm,” which was duly recorded on July 1, 1901, in the recorder’s office of said county of Allegheny, in Plan Book, vol. 18, p. 186. In said plan there is a street thirty-three feet in width, called Banksville avenue, upon which eighteen lots front on the westerly side thereof, numbered one to eighteen, inclusive. Said Milton I. Baird established building lines along the streets of said plan, among others a building line thirty feet from.the westerly side of said Banksville avenue, parallel therewith, which building line is marked upon the record of said plan. There is also indorsed upon the record of said plan the following viz.:

      “There is annexed to each lot as an easement appurtenant to it the free right until April 1, 1920, of light, air and prospect unobstructed by anything save trees, shrubs, plants, fountains, statuary, other ornamental structures not over ten feet high intended for ornament merely, open porches not over fifteen feet wide with or without roofs, combs, steps, fences and such other projections from dwelling houses not'materially interfering with light, air or prospect, as are or shall be usual or frequent and reasonable, over all the parts of the other lots fronting on the same street lying outside of the building line designated.”
    Prior to January 29, 1907, no buildings or other structures were erected on the lots in said plan fronting on Banksville avenue in violation of said building restriction.
    2. On October 20, 1905, William M. Swart, the defendant, purchased the lot No. 1 in said plan from William J. Payne et ux., who had purchased the same from said Milton I. Baird by deed dated October 5, 1905, which conveyance was made subject to the building line and to all building or other restrictions set forth in the explanation indorsed on the record of the plan aforesaid. Said lot fronts forty-eight feet on the westerly line of Banksville avenue, and thence runs back westerly 120 feet; narrowing to sixteen feet in the rear. The defendant also owns the two lots adjoining No. 1, and his residence occupies the rear half of said lot No. 1.
    3. On or about January 29, 1907, the defendant commenced the erection of a frame store or business building upon that portion of said lot No. 1, which fronts on Banksville avenue. This building is thirty feet by fifty feet. It stands back about two inches from the side line of Banksville avenue and occupies in depth the entire easement upon said lot No. 1. The building has no cellar and is set upon posts. It was weather-boarded and under roof on February 4, 1907, and some work within was then commenced. The lot stood seven or eight feet above the grade of the street, and a few months before this time the defendant had leveled off the front portion of lot No. 1 for this building, but had made no excavation below the level of the street.

      4. From September 21, 1905, to February 4, 1907, D. R. Speer had been the owner of lot No. 11 in said “Espy Farm” plan, which fronts forty feet on the westerly side of said Banks-ville avenue and extends back westerly 120 feet to an alley. By deed dated February 4, 1907, recorded in the recorder’s office of said county, in Deed Book, vol. 1536, p. 147, D. R. Speer and wife conveyed said lot No. 11 to W. T. Fogal, the plaintiff, which deed contained the following:
    “This conveyance is made subject to the building line and to all building and other restrictions set forth in the explanation endorsed on the record plan above mentioned and referred to.”
    The consideration for this deed was $900, $250 of which was paid in cash, and a mortgage for $650 was given for the balance of purchase money.
    5. Mr. Fogal, the plaintiff, resided in Chartiers township, which adjoins Scott township. He had, a few years ago, purchased a property near this “Espy Farm” plan, which he had sold a short time before the transactions in this case. He was familiar with said plan of lots and with the building restrictions. On or about February 2, 1907, Lester E. Larned proposed that plaintiff purchase this lot from Mr. Speer. The plaintiff had been upon the ground January 13, 1907, but did not go again to look at the property, as he was familiar with it and thought the lot a bargain. He states that he purchased the lot for the purpose of building a home. He did not employ anyone to examine the title. He borrowed the $250 with which to make the cash payment from Mr. M. H. Gottschall, which, however, he has repaid. The deed was executed and delivered to plaintiff on February 4, 1907, some time in the afternoon. The next morning plaintiff went to this property, as he stated, to see Mr. Gottschall, in order to obtain from him a letter to a party in Connellsville, with whom he expected to place a loan. Whilst there he found that defendant was engaged in constructing the said building upon lot No. 1 as aforesaid, and he then came to the city, employed John A. Metz, Esq., as attorney, and filed the bill in this case some time in the afternoon of February 5, 1907.

      6. Both Mr. M. H. Gottschall and Mr. Lester E. Larned are residents of the neighborhood of the property under consideration, and both of them were interested in preventing the defendant from completing said building upon lot No. 1, “Espy Farm” plan. They, with others, had previously employed Mr. John A. Metz as their attorney in the controversy. Undoubtedly Mr. Gottschall, Mr. Larned and Mr. Metz knew that defendant was erecting this building in violation of the said building restrictions. But the evidence does not establish that the plaintiff had actual knowledge, when he purchased said lot, that the defendant had commenced the erection of said building.
    Whilst the evidence shows that Mr. Gottschall, Mr. Larned and Mr. Metz were all active in having the plaintiff purchase the lot under consideration, yet we cannot find from the evidence that either Gottschall or Lamed was the agent, or that Mr. Metz was the attorney, of the plaintiff in the purchase of lot No. 11, “Espy Farm” plan.
    7. There was executed and placed upon file in the recorder’s office of said county of Allegheny a paper purporting to abolish said building line on said Banksville avenue. See exhibit “A” attached to defendant’s answer. This paper was first recorded February 4, 1907, in Deed Book, vol. 1534, p. 9. It was again recorded February 6, 1907, in Deed Book, vol. 1134, p. 10. And it was finally recorded again on February 9, 1907, in Deed Book, vol. 1534, p. 13. Said paper and its indorsements are as follows:
    8. It is not pretended that this agreement was signed by all the owners of lots in the “Espy Farm” plan. It was not signed by all of those who owned lots on Banksville avenue, a street in said plan, prior to the delivery of the deed aforesaid to the plaintiff.
    ■ When said agreement was first recorded, February 4, 1907, the last three names, to wit: John W. Thomas, Leanah S. Thomas and W. M. Swart, were not signed to it.
    On February 4, 1907, when said agreement was first recorded, it was not signed by D. R. Speer, the plaintiff’s grantor. But it was signed “D. R. Speer, pr. J. J. Speer.” D. R. Speer does not appear to have signed the paper, but, on February 5, 1907, he acknowledged the same before a notary public.
    The paper was not signed by Leanah S. Thomas, an owner of a lot in said plan, when it was recorded February 4, 1907. Her name was signed thereto “Leanah S. Thomas, by Jno. W. Thomas.” It was afterward signed by John W. and Leanah S. Thomas, was acknowledged by them on February 5, 1907, and the same day recorded a second time.
    The paper was not signed by J. P. Richardson, owner of lot. No. 4 in said plan, prior to the delivery of the deed to the plaintiff. On February 4, 1907, Mr. Richardson gave an option to the defendant to purchase said lot within five days (exhibit No. 1). Subsequently, on February 9, 1907, Mr. Richardson and the defendant entered into an agreement (exhibit No. 2) for the sale of said lot on or before February 9, 1908. No deed has yet been delivered.
    The paper was not signed by Manus Cannon, owner of lot No. 9 in said plan, prior to the delivery of the deed to plaintiff. But after the paper was recorded, on February 4,1907, and the defendant had obtained the option from Mr. Richardson and had agreed to purchase the lot of Manus Cannon, he, the defendant, along with John W. Thomas and Leanah S. Thomas, again signed the said paper.
    9. There is no written evidence of the authority of J. J. Speer to sign the name of D. R. Speer to the said writing, dated March 28, 1906, and attached as exhibit “A” to the defendant’s answer, abolishing the building line on Banksville avenue and extinguishing said easement. D. R. Speer did not know that his name had been signed to the paper until the day after he had delivered the deed to plaintiff, as aforesaid. D. R. Speer had, however, verbally stated to the defendant that he was in favor of the abolition of said building line on Banks-ville avenue, and this was done prior to the time that defendant commenced the erection of said building. There is no evidence of any kind of the authority of John W. Thomas to sign the name of Leanah S. Thomas to said paper.
    The court entered a decree awarding an injunction.

      Error assigned was the decree of the court.

      R. B. Ivory, of Ivory, Kiskadden & Moore, with him II. M. Stilley, for appellant.
    Now, clearly the building was notice to Fogal that Swart was occupying that easement, and it became his duty to inquire by what right he was there. The rule is the same as though Swart was on the lot Fogal bought: Woods v. Farmere, 7 Watts, 382-384; Meehan v. Williams, 48 Pa. 238; Sailor v. Hertzog, 4 Whart. 259; Hottenstein v. Lerch, 104 Pa. 454; Ward v. Metropolitan El. Ry. Co., 152 N. Y. 39 (46 N. E. Repr. 319).

      Ernest C. Irwin, with him John A. Metz, for appellee.
    October 12, 1908:
   Opinion by

Beaver, J.,

It clearly appears from the bill and answer that a building restriction line was established by the owner of the lots, through whom both plaintiff and defendant claim title. The plaintiff claims lot No. 11 in a plan of eighteen lots, through one D. R. Speer, who was the owner of four lots, of which it was one, and who conveyed to him February 4, 1907, the conveyance being made subject to the restriction, as contained in the plan of lots originally laid out by the owner of the land embraced in the plan, which was duly recorded.

The defendant seeks to avoid the restriction, subject to which the conveyance was made to the plaintiff, upon the ground, that Speer, the plaintiff’s vendor, verbally assented to the abolition of the building line, and subsequently signed an agreement in which all the lot owners joined, agreeing to its abolition.

We can find nothing in the so-called verbal assent which can be construed as an actual agreement to abolish the restriction, and even if it could be so construed," it would not have been binding upon the plaintiff’s vendor for the reason that it is within the statute of frauds. “A parol agreement between the owners of the servient and dominant tenements will not extinguish a servitude created by deed; this can be only by deed or note in writing or operation of law:” Erb v. Brown et al., 69 Pa. 216; Hudson v. Watson, 2 Pa. Superior Ct. 422.

As to the written agreement, it clearly appears that it was signed by the son of the plaintiff’s vendor, without authority, verbal or written, and was not called to the attention of the father until after the date of his deed to the plaintiff. It is true that the signature of the father by his son was sanctioned by the acknowledgment of the former, but this was subsequent to his conveyance to the plaintiff, and could, therefore, relate only to the three lots in the plot of the Espey farm, which he still held.

The court has found, as a fact, based upon sufficient evidence, that the plaintiff purchased his lot, without notice of the abolition of the building line and without knowledge of the erection by the defendant of his building in violation of the restriction.

The effort is made by the defendant to charge the plaintiff with the knowledge of certain parties interested in maintaining the restriction through whom the plaintiff purchased his lot, but the court finds distinctly, as we think, upon the clear preponderance of the evidence, that these parties did not in any way represent the plaintiff, and that he was not, therefore, bound by their knowledge.

The findings of fact of the court below are all based upon the preponderance of the testimony, and the conclusions of law naturally, logically and legally follow from the facts as found. It follows that the decree is free from error and is, therefore, affirmed, and the appeal dismissed at the costs of the appellant.