text:
    Reading Company v. Seip, Appellant.

      Railroads — Right of way — Adverse possession — Land purchased.

    No title can. be acquired by adverse possession, however long continued, to land purchased by a railroad company and used by the company for the construction of switches adjacent to and diverging from its main track.
    A railroad is a public highway, and the land which it covers whether acquired by the exercise of eminent domain or by purchase, is not the subject of adverse possession, and is immune from the statute.

      Appeals — Assignments of error — Points.
    A single assignment of error embracing several points violates Rule XIV.

      An assignment of error to an instruction which does not quote the instruction totidem verbis violates Rule XV.
    Argued Dec. 6, 1905.
    Appeal, No. 163, Oct. T., 1905, by-defendant, from judgment of C. P. Lehigh Co., April T., 1902, No. 62, on verdict for plaintiff in case of The Reading Company v. Elizabeth Seip.
    Before Rice, P. J., Beaver, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Ejectment for land in Saulsbury Township. Before Trexler, T.
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned were in the following form :
    The court erred in not affirming the defendant’s points as follows :
    1. If you find from the evidence.that the limekilns and the driveway on the western side thereof appending the approaches thereto, and the land on which these improvements are located and in question in this action, were used by William Eschenbech in his lifetime and by his successors in title, by themselves and their lessees paying rent, down to, and including this defendant, whenever they saw fit, without asking leave, and in the knowledge thereof by said plaintiff and its predecessors in title and without objection, then that use was adverse, and if it continued in that interruption for twenty-one years and upwards in that way,, before the bringing of this action, then this defendant had and now has a title to that land and location which cannot now be disputed and your verdict must be in favor of the defendant.
    2. A continued and uninterrupted and adverse use of an easement under a claim of right, and in the acquiesence and knowledge of the person or persons intestate, for a period of twenty-one years or upwards, will justify a jury in finding in favor of a party who sets up a right arising out of the sum.
    3. If you find from all the evidence that this defendant and her predecessors in title, taking their holdings together, had continuous, notorious and adverse possession of land in dispute in this action, for twenty-one years and upwards, then unless the Reading Company, plaintiff, has convinced you by afflrmative proof, that the land was embraced in the original location of the railroad by its predecessors in title, it cannot make the power of eminent domain in its favor, to prevent the acquisition of said land of the defendant, by such adverse possession.
    March 12, 1906:
    4. The court erred in instructing the jury to find a verdict in favor of the plaintiff.

      Clinton A. Groman, with him Claude T. Reno, for appellant,
    cited: P. & C. R. R. Co. v. Graham, 36 Pa. 77; Covert v. Ry. Co., 204 Pa. 341; Pierce v. Com., 104 Pa. 150; Penna. R. R. Co. v. Freeport Boro., 138 Pa. 91; Porter v. McGinnis, 1 Pa. 413; Hinman v. Cranmer, 9 Pa. 40; McCoy v. Dickenson College, 5 S. & R. 254; Evans v. Erie County, 66 Pa. 222; Susquehanna County v. Deans, 33 Pa. 131; Glover v. Wilson, 6 Pa. 290.

      R. E. Wright and Charles Heebner, for appellee,
    cited: Penna. R. R. Co. v. Freeport Borough, 138 Pa. 91; Stevenson’s App., 17 W. N. C. 429; Covert v. Ry. Co., 204 Pa. 341; Pittsburg, etc., R. R. Co. v. Com., 104 Pa. 583; Kopf v. Utter, 101 Pa. 27; Phila. & Reading R. R. Co. v. Obert, 109 Pa. 193; Hummel v. R. R. Co., 175 Pa. 537.
   Opinion by

Beaver, J.,

There would seem to be in this case a single assignment of error, embracing four distinct points. , This is a violation of our rule XIV, and we would probably be justified in disregarding the assignment. Assuming, however, that the numbered paragraphs constitute distinct assignments of error, the first three state the defendant’s points, but do not state what disposition was made of them by the court. Indeed, an examination of the record would seem to indicate that the court did not take any notice of them, but simply, as complained of in the fourth paragraph of the assignment of error, instructed the jury to find a verdict for the plaintiff.

The fourth paragraph raised an entirely different question. Assuming that it is a distinct assignment of error, it contravenes the provisions of our rule XV, which is, that: “ When the .error assigned is to the charge of the court, or to answers to points or to findings of fact or law, the part of the charge, or the points and answers or findings referred to, must be quoted totidem verbis in tbe assignment.” Inasmuch, however, as it raises in a practical way the entire question involved here, we will regard it as a sufficient assignment and dispose of the case upon its merits accordingly.

The statement of the question involved, as suggested by the appellant, is : “ Could the defendant, upon sufficient evidence and proof establishing title to the tract in question by prescription by adverse possession for upwards of forty years, defend such title as against a railroad company duly incorporated under the laws of the state of Pennsylvania who claims title to the same tract by purchase, and not by virtue of the right of eminent domain ? ”

The appellant’s counsel, in their argument, have limited the scope of our investigation by a frank admission that, It was and is admitted that land, acquired by virtue of the power of eminent domain, is immune from the statute of limitations, but it is respectfully submitted that with respect to land purchased a railroad corporation occupies no better position than another person, natural or artificial, and that an adverse possession continued for twenty-one years will bar a railroad company as completely and effectually as anyone else.”

It is also admitted that: “A public highway is immune from the operation of the statute. Its immunity is based on the same reason which gives rise to the maxim, nullum tempus occurrit reipublicse. ”

Losing sight apparently of the fact that a railroad is a public highway for many purposes, the argument of the appellant goes on to say, “ When applied to a railroad these reasons cease to be true, and have in fact no existence, for it can hardly be asserted that a railroad corporation is always busied for the public good and, therefore, has no leisure to assert its right within the times limited to others. ”

Under our constitution, article XVII, section 1, it is declared that: “ All railroads and canals shall be public highways and all railroad and canal companies shall be common carriers. ” It is because of this declaration and the rights which grow out of the fact which it declares that the legislature has the right to confer upon a railroad company the right of eminent domain. This it practically does by the authority which it gives to incorporáte a railroad company under our laws. Such a company has conferred upon it, by its very creation and the necessities of its existence, the right of eminent .domain. Its right of way may be acquired by purchase or by condemnation proceedings. The right is just as' effectual in the one case as in the other.

The necessity for the taking of private property, by virtue of the right of eminent domain, through adverse proceedings provided by law, arises when the company may have failed to secure the assent of a private citizen to its acquisition of the right of way for its railroad by a release or conveyance. The fundamental weakness of the position of the appellant is its effort to create a distinction between the right of way acquired by release or conveyance and the same right acquired through the right of eminent domain conferred upon a railroad company by its charter.

The appellant fails to distinguish between a private corporation, chartered and organized for a private purpose, and one to which the commonwealth has committed the right and imposed the duty of a public service. A railroad is not only a public highway but it owes a duty to the public, as a common carrier, to transport persons and traffic, and may undoubtedly be used by the commonwealth itself in an emergency which involves its safety or existence.

In Davis v. Wheeling, etc., Railroad Co., 26 Pa. Superior Ct. 364, we said, at page 373: “ The company (a railroad company) was, under its charter, invested with the right of eminent domain. It was authorized to acquire its right of way by purchase as well as by condemnation proceedings.” Although it was said in that case that we did not decide whether a private individual may acquire by adverse possession a private right of way over land included in a railroad company’s right of way, the case was one in which a right of way under a railroad which maintained and operated its track above the claimed right of passage was involved, and did not raise, in any way, the question which is here presented.

Nor does the subject which we are now considering present the question of a claim by prescription of the land of a railroad company used for any other purpose than such as is involved in the discharge of its public functions. Although the claim of the defendant was not for any portion of the right of way covered by its main track, it was, nevertheless, as appears by the evidence, land upon which switches or sidings had been built and evidently intended for that purpose.

“ Land taken by a railroad company for switches, turn-outs and sidings is for a public use. It is not the special use made of property taken which characterizes, but its convenient necessity to that part which is for the public use: ” 5 P. & L. Dig. of Dec. 8045. See also 17 P. & L. Dig. of Dec. 29,316.

In view of the admissions of the defendant, extended discussion of this subject is not necessary, although the field for it is wide and the subject inviting.

What we now decide is that the land claimed by the defendant by adverse possession, having been purchased by the predecessors in title of the plaintiff for railroad purposes and having been used for the construction of switches adjacent to and diverging from its main track, was held by the said railroad for a public use, under the grant of its right of way, and that no title could be acquired by the defendant to the surface of any portion of what was used for such a purpose, by adverse possession, however long continued: Penna. R. R. Co. v. Freeport Boro., 138 Pa. 91; Northern Pacific Ry. Co. v. Townsend, 190 U. S. 267 (23 Sup. Ct. Repr. 671).

Under the facts of this case, as developed in the trial, the court below was warranted in giving binding instructions for the plaintiff.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Commonwealth, Appellant, v. Bercaw.

      Game laws — Fish—Criminal law — Act of May 29, 1901, P. L. 302.
    A person who fishes in the waters of this commonwealth with a rod, hook and line, and a hand line at the same time, does not violate sec. 2, of the Act of May 29, 1901, P. L. 302, which provides that “it shall be unlawful to fish in any water of this commonwealth, in any manner except with the rod, hook and line, or with hand line having not more than three hooks.”
    Argued Jan. 8, 1906.
    Appeal, No. 44, Jan. T., 1906, by plaintiff, from judgment of Q. S. Wyoming Co., Oct. T., 1905, No. 31, on appeal from justice of the peace in case of Commonwealth v. W. R. Bercaw.
    Before Rice, P. J., Beaver, Or-lady, Porter, Morrison, Henderson and Head, JJ.
    Affirmed.
    Appeal from summary conviction before a justice of the peace.
    Terry, P. J., filed the following opinion:
    This is an appeal from a summary conviction under the Act of May 29, 1901, P. L. 802.
    The defendant is charged with the violation of the provisions of the second section thereof, which reads as follows :
    “ That from and after the passage of this act it shall be unlawful to fish for game fish in any of the waters of this commonwealth in any manner except with rod, hook and line, or with hand line having not more' than three hooks; or for food fish with any device not specifically permitted in this act. Any person violating any of the provisions of this section shall, on conviction thereof, as provided in section thirty-eight of this act, be subject to a fine of twenty-five dollars.”
    The case came before the court on appeal, as stated, and was heard in accordance with the practice in cases of summary conviction, when it appeared that the defendant was arrested by a special fish warden for fishing with rod, hook and line, and with hand lines, in the Susquehanna river. The justice fined the defendant $25.00. The evidence taken before the court clearly shows that he was fishing with a rod, hook and line, and also with one hand line with two hooks thereon.
    It was claimed by the commonwealth that he had two hand lines in use, but the weight of the evidence is against such contention. Therefore we find as a fact that he was fishing with but one hand line.
    The only question before us is this: Is it unlawful for a person to fish with a rod, hook and line, and a hand line having not more than three hooks, at the same time ?
    The section referred to makes all manner of fishing for game fish unlawful except two specified modes. Those two methods are legalized. The legislature has said to the individual: “You may fish for game fish in two ways, first, with rod, hook and line ; second, with hand line haying not more than three hooks —all other modes are prohibited.” This, in our opinion, does not mean to confine the person to one or the other of these methods. If the word “ and ” had been substituted for “ or,”it could have been contended with equal plausibility, that both modes were meant to be employed at the same time. To escape this construction, the word “ or ” may have been used. However this may be, we think the section under consideration simply distinguishes the unlawful from the lawful modes of fishing, and that, if a person avoids the former, he is not required to make a choice of the latter.
    If the meaning of this provision or the law is not clear, we must apply the rule of interpretation governing in such-cases.
    Penal statutes must be construed in case of doubtful meaning, in favor of the accused, and it is a reasonable expectation that when the legislature “ intends the infliction of suffering, or an encroachment upon natural liberty or rights, or the grant of exceptional exemptions, powers and privileges, it will not leave its intention to be gathered by mere doubtful inference, or convey it in cloudy and dark words only; for an offense cannot be created or inferred by vague implications, — but will manifest it with reasonable clearness : ” Endlich on the Interpretation of Statutes, p. 452. If the legislative intent had been to prohibit fishing with a rod, hook and line and a hand line at the sanie time, we think it would have been definitely expressed.
    In the absence of such expression, we think it was not intended.
    Therefore, the defendant has not been guilty of a violation of the act under which he was arrested, and accordingly, he is now discharged. The county is directed to pay the costs of prosecution.

      Error assigned was the judgment of the court.

      O. Smith Einner, district attorney, for appellant.
    — A penal statute is not to be construed so strictly as to defeat its object: Bartolett v. Achey, 38 Pa. 273; The Mayor v. Davis, 6 Watts & Sergeant, 269; Com. v. Waldman, 140 Pa. 89; Com. v. Eichenberg, 140 Pa. 158.
    March 12, 1906:
    Words are to be construed according to their popular acceptation, to bring sense out of them, and not to bring sense into them: Com. v. Hufnal, 4 Pa. Superior Ct. 301; Haddock v. Com., 103 Pa. 243; Bradbury v. Wagenborst, 54 Pa. 180.
    All statutes are to be so construed as to give them operation if the language will permit instead of treating them as meaningless: Howard Association’s Appeal, 70 Pa. 344; Fuellhart v. Blood, 21 Pa. C. C. Rep. 601; Com. v. Fraim, 16 Pa. 163; Imp. Co. v. Corn., 94 Pa. 450; Ahl’s Est., 2 Dauphin, 371; City of Pittsburg v. Kalchthaler, 114 Pa. 547.
    All incongruities must be so construed as to harmonize the general intent of the whole act: Com. v. Conyngham, 66 Pa. 99; Holl v. Deshler, 71 Pa. 299; Phila. v. Ry. Co., 102 Pa. 190.

      James Wilson, with Joseph Wood Piatt, for appellee.
    — The defendant is not to be subjected to a penalty unless the words of the statute plainly impose it: Tiffany v. Nat. Bank of Mo., 86 U. S. 409; U. S. v. Reese, 92 U. S. 214; U. S. v. Wiltberger, 18 U. S. 76; Respublica v. Weidle, 2 Dallas, 88.
    It has been held in the construction of penal statutes that where an act contains such an ambiguity as to leave a reasonable doubt of its meaning, it is the duty of the court not to inflict the penalty: Com. v. Standard Oil Co., 101 Pa. 119; Dawson v. Shaw, 28 Pa. Superior Ct. 563; Philadelphia v. Costello, 17 Pa. Superior Ct. 339; Stewart v. Com., 10 Watts, 306.
   Per Curiam,

The question involved in this appeal is whether to fish for game fish in the waters of this commonwealth with a rod, hook and line, and a hand line at the same time is a violation of section 2 of the Act of May 29, 1901, P. L. 302, which provides that, “ it shall be unlawful to fish for game fish in any waters of this commonwealth, in any manner except with rod, hook and line, or with hand line having not more than three hooks.” This is a penal statute and the rules governing the construction of such statutes are applicable notwithstanding the fact that the penalty for its violation is simply a fine. The words of the section indicate that what the legislature had in mind was the “ manner ” of fishing; they do not clearly prohibit the use of both devices mentioned at the same time. The court below in a carefully considered opinion said that if the legislative intent had been to prohibit fishing with a rod, hook and line, and a hand line at the same time, it would have been expressed in definite and unequivocal language. We concur with the learned judge in his conclusion and the reasons set forth in his opinion in support thereof. We can add nothing profitably to what he has said upon the question.

The judgment is affirmed.


author: Beaver, J.,

text:
    Winkle v. Meany, Appellant.

      Decedents’ estates — Beal estate — Bents—Belease—Executors and administrators.

    Rents of real estate accruing after a decedent’s death, are not assets for the payment of his debts.
    An administrator has no power to release a tenant, who holds under a lease from the heirs of the intestate, from his contract to pay rent.
    The heirs of a decedent leased land to a tenant for one year with privilege reserved to the lessors of removal of lessee at any time, on ninety days’ notice. The administrator obtained an order of sale, and in order to get a better price for the property by offering immediate possession agreed to release the tenant from rent if he would give up possession. The heirs assigned the rent to the purchaser at the sale. Held, that the administrator had no power to release the tenant, and that the purchaser could recover the rent from the tenant.
    Argued May 9, 1905.
    Appeal, No. 264, April T., 1905, by defendant, from judgment of C. P. Beaver Co., Dec. T., 1908, No. 671, on verdict for plaintiff in case of Elmer E. Winkle v. Frederick Meany.
    Before Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Reversed.
    Replevin for goods seized for rent. Before Galbreath, P. J.
    From the record it appeared that A. C. Bruce died intestate, leaving to survive him a brother and three sisters as his heirs. The heirs leased a farm which had belonged to the intestate to E. E. Winkle, the plaintiff, for one year with a right to end the term on ninety days’ notice. The administrator of Bruce obtained an order from the orphans’ court to sell the land for the payment of debts. The sale was held on July 14, 1903. On the day of the sale the administrator agreed with the tenant that the latter should be relieved of payment of rent if he would surrender the premises on or befoi'e November 1, 1903. The heirs subsequently assigned the lease to Frederick Meany, the purchaser at the sale. Winkle moved from the farm on November 2, 1903. Meany would not permit him to remove certain goods, and subsequently Winkle brought this suit.
    Defendant presented these points :
    1. Under all the evidence the verdict should be for the defendant. Answer: That, gentlemen, we cannot affirm, but leave that to be found by the jury. [1]
    2. If the court refuses to so charge then, that under the terms of the lease in question the lessors had the right to remove the, lessee at any time, upon giving said lessee ninety days’ notice. Answer : As we said to you in the charge it is unnecessary the court should construe that particular clause in this agreement, for the reason it was not called into effect. It was not called into operation, no notice was given, and therefore it is unnecessary and idle to speculate as to what might have been the result if notice had been given. [2]
    3. If the jury find from the evidence that the plaintiff, Elmer Winkle, understood that the terms of his agreement with James E. Smith, administrator, were that he, Winkle, was to give up possession of the farm on November 1, 1903, and if he did so that the rent due October 1 would be canceled, and that the administrator understood that the terms were that he was to leave October 1, there would be no assent of minds or agreement of the parties, the rent due October 1 would not be released and the verdict should be for the defendant.
    In answer to that point, gentlemen, we simply say if no agreement was entered into then, of course, the verdict would have to be for the defendant. [3]
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned were (1 — 3) above instructions, quoting them.

      March 12, 1906:

      William A. McConnel, for appellant.

      J. H. Cunningham, for appellee.
   Opinion by

Beaver, J.,

Whilst it is true that “ Lands of a decedent are assets for the payment of his debts, and may be taken in execution and sold for this purpose, notwithstanding the fact that they have been sold by the heirs to bona fide purchasers: ” 4 P. & L. Dig. of Dec; 6330, it is also true that “ Rents of real estate accruing after decedent’s death are not assets for the payment of his debts, and it makes no difference that the rents are reserved to the lessor, his executors, administrators or assigns.”

. “The heir is not accountable either to the administrator or creditors of an intestate for the rents and profits of the real estate which accrue after the death of the ancestor, and an administrator who collects the rents and profits of the real estate of the intestate holds them as trustee for the heirs, and not for the creditors : ” 4 P. & L. Dig. of Dec. 6332 et seg.

The latter doctrine was early recognized in McCoy v. Scott, 2 Rawle, 222, in which it was said: “ Although lands in Pennsylvania are considered as chattels for the payment of debts, yet in the case of an intestacy the real estate goes to the heirs and the personal estate to the legal representatives. . . . When lands are wanted for the payment of debts, there is a mode pointed out by the act of assembly which the administrator is bound to pursue, for the real fund is not absolutely, but sub modo, assets in his hands. Until this proceeding takes place the administrator has nothing to do with the real estate.” It was also recognized in Morrison’s Estate, 196 Pa. 80, in which Mr. Justice Fell said : “ While in this state lands are assets for the payment of debts, they are not assets in the hands of an administrator, and without an order of the orphans’ court he has nothing to do with them. In case of intestacy they descend to the heirs, and if needed for the payment of debts there is a mode pointed out by the act of assembly which the administrator is bound to pursue, ‘ for the real fund is not absolutely, but sub modo, assets in his hands: ’ McCoy v. Scott, 2 Rawle, 222; Bakes v. Reese, 150 Pa. 44.”

To the same effect our Brother Porter said, in DeWitt v. Railroad Co., 21 Pa. Superior Ct. 10, although the direct question was not there involved : “ The heir takes the place of his ancestor, in regard to the land, subject to the liens which bind it, but not its profits. The heir is entitled to possession of the land and to receive its rents, issues and profits. The land is only pledged, sub modo,- for the payment of the debts of the deceased, and the legal title remains in the heir until divested in the manner provided by law. If the administrator collect the rents, he must, in the absence of an agreement, account to the heir.”

It follows, therefore, that the administrator had no more. right to release the tenant, who held under a lease from the heirs, from his contract to pay the rent than he had to collect what was due thereunder. It is alleged by the appellee that the administrator undertook to do this for the benefit of the creditors, for the. reason that the real estate, for the sale of which he had procured an order of sale from the orphans’ court, would not sell advantageously unless possession could be given before the lease expired. It is clear that he could not do this at the expense of the heirs, and if not, then the assignment by the heirs to Meany, the defendant in the replevin, who purchased the real estate at the administrator’s sale, was good, and if so, he was entitled to distrain the property left upon the premises by the plaintiff in the replevin, who was the tenant of the heirs, for the rent then due. This being so, the defendant’s first point, the refusal to answer which constitutes the first assignment of error, should have been affirmed and a verdict directed for the defendant.

No,wrong was done the tenant. By the terms of the lease with the heirs he had covenanted that he would “ remove from and give peaceful possession of the premises hereby leased within ninety days after he shall have received from the lessors notice to vacate the premises, without any redress at law.” The sale was made by the administrator July 14, 1903. He removed from the premises November 2, 1903. The sale was of itself a sufficient notice that the lease should be surrendered, and more than ninety days elapsed between the date of the sale and his removal.

The real question involved was not whether the administrator and the plaintiff here agreed as to the time when the plaintiff should surrender possession, but whether the administrator had a right to make such an agreement with him. We are clearly of the opinion, under the authorities, that he had no such right, but, on the other hand, that the assignment by the heirs to Meany, the purchaser at the administrator’s sale and the defendant in the replevin, was valid and the claim for the rents, as made by him under the assignment, was good.

The 'answers to the other points submitted by the defendant, in this view of the case, become practically irrelevant.

We are of the opinion that a verdict should have been directed for the defendant, as there was no dispute as to the essential facts upon which the defendant’s right to the rents due the heirs rested. This disposes of the entire case.

Judgment reversed.


author: Head, J.,

text:
    Frantz v. Lehigh Valley Railroad Company, Appellant.

      Landlord and tenant — Lease—Oral lease — Eviction.
    In an action by a tenant against a landlord for a wrongful eviction, a verdict and judgment for the plaintiff will be sustained, where it appears that the parties had entered into a written lease containing certain covenants for its termination, that the tenant had never entered into possession of the premises described in the lease, but subsequently made an oral agreement under which he took possession of an entirely different piece of ground, and that the evidence as to what were the terms of the oral agreement as to its termination, is conflicting.
    Argued Jan. 8, 1906.
    Appeal, No. 12, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1903, No. 891, on verdict for plaintiff in case of D. E. Frantz v. The Lehigh Valley Railroad Company.
    Before Rice, P. J., Porter, Morrison, Henderson, Orlady, Beaver and Head, JJ.
    Affirmed.
    Trespass to recover damages for wrongful eviction.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for §1,220.75. Defendant appealed.

      March 12, 1906:

      Error assigned was in refusing binding instructions for defendant.

      J. B. Woodward, of Woodward, Darling & Woodward, for appellant.
    — -Where a lessee for years holds over after the expira- ■ tion of his term, he is a tenant from year to year subject to all the covenants and stipulations contained in the original lease so far as they are compatible with a yearly holding: Hughes v. Lillibridge, 8 Pa. Dist. Rep. 358.

      S. J. Strauss, with him Thos. F. Farrell, for appellee,
    cited: Smith v. Pringle, 100 Pa. 275; McClintock v. Loveless, 5 Pa. Dist. Rep. 417.
   Opinion by

Head, J.,

The plaintiff, D. E. Frantz, brought this action of trespass to recover damages from the defendant by reason of his forcible eviction from the premises described in his statement, and the injury to his property incident thereto, claiming that at the time of his eviction he was the tenant of - defendant, in lawful possession of the premises.

The facts of the case, about which there is no serious dispute, may be briefly stated thus: Prior to 1895 the Wilkes-Barre and Harvey’s Lake Railroad Company was the owner of certain lands in Luzerne county at Harvey’s lake, which were used as picnic and pleasure grounds.

The plaintiff des.ired to lease a small portion of this ground upon which to construct what is called in the testimony a “ carousal ” consisting of a “ merry-go-round ” and other devices to amuse, the people. By an agreement in writing dated March 25, 1895, duly executed by both the parties, the said railroad company, as lessor, demised and let unto the plaintiff, a portion of said ground, in the lease fully and specifically described, for the term of two years from and after April 1, 1895,- at an annual rental of 150.00 per year, payable semiannually in advance. The lease contained, among other things, certain covenants for its termination by the lessor under conditions prescribed and for the retaking of possession in case- of such termination.

On or about April 15, 1895, when the plaintiff .was ready to take possession of the leased premises and after lie paid the first semiannual installment of rent, he and Alexander Mitchell, the superintendent of the defendant company, which had succeeded .to the rights of the original lessor, met on the ground. At that time, as both parties concede, some new arrangement or agreement was arrived at. It was not put in writing and signed and no memorandum of it in writing appears to have been made or kept by either party. No witness was present to hear its terms. As a result of it, however, the plaintiff was not put in possession of the premises described in the written lease, but did take possession of an entirely different piece of ground and constructed his improvements thereon. He remained in undisturbed possession until 1908. During all this time the defendant, on or about the first days of April and October in each year, made out bills for semiannual .installments of rent at the rate of $50.00 per annum which, when paid,, were returned to plaintiff as receipts. Not one of the number offered in evidence contains anything to show what was the arrangement under which plaintiff was holding. It may here be noted that the last bill rendered, in October, 1902, was exceptional in that it demanded $50.00, a full year’s rental from October, 1902, to October, 1903, which the plaintiff paid without question.

On February 5, 1903, the defendant caused to be served on the plaintiff a written notice of its intention to terminate his tenancy, “ upon the expiration of three months from the date of service of this notice.” Such a notice was provided for in the sixth paragraph of the original written lease. The plaintiff still retaining his possession, the defendant on June 9, 1903, by its servants and employees, went upon the property and took down and removed the buildings and machinery of the plaintiff from the premises and piled them on other ground belonging to it alongside its railroad tracks. The plaintiff then brought this action and at the trial proved by evidence the facts substantially as herein stated, and the extent of his injury. The defendant, admitting'its receipt of the rent from October, 1902, to October, 1903, its re-entry on the premises, its eviction of the plaintiff and the removal of his property, sought to justify these acts by contending that the arrangement ■made by plaintiff and Mitchell on April 15, 1895, when possession was taken, only contemplated a change in the location of the demised premises, substituting the piece of ground actually occupied for the one described in the written lease, and that the understanding was that in all other respects that lease, with all its covenants, was to remain in force and be applicable to the new subject-matter.

A number of letters from plaintiff to defendant and replies thereto were put in evidence which showed, as the defendant contended, such clear admissions by the plaintiff that he was holding under the written lease of March 25, 1895, as to warrant the court in withdrawing the case from the jury and holding as matter of law that the written lease with all its covenants was the living subsisting contract between the parties, although the ground in dispute was not mentioned in the lease at all. By its sixth point it asked the learned trial judge to so hold, and his refusal to do so is the single assignment of error in the case.

The written lease by its own terms was wholly irrelevant to the present controversy. It did not embrace or apply to the piece of ground now in dispute, and when written and signed was not so intended by the parties. Only by some subsequent action of both parties expunging from it the portion of it descriptive of its subject-matter, and substituting another description therefor could it be brought into this case at all. That there was a subsequent agreement is conceded, but it is also a fact that the parties were content to leave it in parol.

The letters of the plaintiff were doubtless proper evidence to aid the jury in determining what the parol agreement really was. They did not purport, in and of themselves, to be the contract. They were written long after that contract had been, in fact, made.

We are of the opinion the learned trial judge was clearly right in submitting the case to the jury with instructions to determine from all the evidence what the parties had agreed to when possession was taken. No complaint is made as to the manner of the submission and we think the charge of the court presented the case of tire defendant in as favorable a light as it had a right to expect.

The defendant having left the vital and essential part of its contract in parol cannot justly complain because the court declined to treat it as if it had been fully reduced to writing and signed bjr the parties. For these reasons the assignment of error cannot he sustained.

Judgment affirmed and appeal dismissed at the cost of appellant.


author: Porter, J.,

text:
    Newton v. Luzerne County, Appellant.

      Costs — Subpoenas—Constable’s fees — District attorney.

    A county is not liable for fees for serving subpoenas obtained by and served at request of a private prosecutrix, where there is nothing to show that this was done with the approval of the district attorney.
    Argued Jan. 8, 1906.
    Appeal, No. 14, Jan. T., 1906, by defendant, from judgment of O. P. Luzerne Co., Oct. T., 1904, No. 1,099, for plaintiff on case stated in suit of John Newton v. Luzerne County.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Case stated to determine liability for fees. Before Halsey, J.
    The court entered judgment for plaintiff on the case stated.

      Error assigned was the order of the court.

      Anthony L. Williams, with him William S. McLean and Henry A. Gordon, for appellant.
    — To recover from a county, costs accrued in a criminal proceeding, it is necessary to show a statute obliging the county to pay, and when this cannot be done, an action against the county must fail: Crawford County v. Barr, 92 Pa. 359; Wayne County v. Waller, 90 Pa. 99; Irvin v. Northumberland County, 1 S. & R. 505.
    A private prosecutrix in a criminal case, at whose request a court subpoena has been served, cannot bind the county for the payment of the costs of the service of such subpoena: Com. v. Shell, 1 Pa. C. C. Rep. 41; Com. v. Eichenlaub, 1 Pa. C. C. Rep. 642; O’Leary v. Northnumberland County, 24 Pa. Superior Ct. 24.

      March 12, 1906:

      J. J. O’Donnell, for appellee,
    cited: Coleman v. Hess, 1 Browne, 274; Youngs v. Harold, 7 Kulp, 285; Boyle v. Luzerne County, 8 Kulp, 141; Com. v. Neeley, 2 Chester Co. Rep. 105; McCallister v. Armstrong County, 9 Pa. Superior Ct. 423; Deitrick v. Northumberland County, 24 Pa. Superior Ct. 22; O’Leary v. Northumberland County, 24 Pa. Superior Ct. 24; Kottcamp v. York County, 28 Pa. Superior Ct. 96.
   Opinion by

Porter, J.,

The plaintiff brought an action of assumpsit to recover an amount alleged to be due him for services in serving a subpoena, requiring the attendance of witnesses in the court of quarter sessions of Luzerne county. The parties agreed upon a case stated setting forth the facts under which the plaintiff alleged his right to recover, the court of common pleas entered judgment in favor of the plaintiff and the county appeals.

The facts agreed upon are as follows: the plaintiff, at the request Dora-D. Sutton, the prosecutrix, served two subpoenas requiring' the attendance of witnesses in the court of quarter sessions of Luzerne county, on behalf of. the commonwealth in the case of Commonwealth v. B. Sutton; and the county of Luzerne was made liable for the costs of prosecution in said case. “ The contention of the plaintiff is that he should have been paid under the sheriff’s fee bill, approved July 11, 1901.” “ The 'contention of the defendant is that the county of Luzerne is not liable to plaintiff for compensation on account of said services.”

.. There is no suggestion in .the case stated that the -plaintiff ■performed the services at the request of-any officer authorized to bind the county by a contract; if he was entitled to recover of the- county at all it was because his fees were properly taxable as costs in the court of quarter sessions, and. as costs, in ■that court he ought to have recovered them, in case he had the right to do so. The practice of bringing an action in the common pleas, in such a case, is certainly not to be encouraged. We will, however, without conceding the correctness of the practice, consider the one question that arises under the facts as stated. The witnesses in question were subpoenaed by the plantiff at the request of the private prosecutrix, and not that of the district attorney of Luzerne county. The Act of May 3, 1850, P. L. 654, providing for the election of district attorneys, requires that “ the officer so elected shall sign all bills of indictment and shall conduct in court all criminal or other prosecutions in the name of the commonwealth, or when the state is a party, which arise in the county for which he is elected.” This legislation gives to the district attorney control of the processes of the commonwealth for the purpose of obtaining the attendance of witnesses, the discretion to determine what witnesses shall be subpoenaed as well as who shall be called upon to testify at the trial. When in any case there is an alleged abuse of discretion by the district attorney in the discharge of his duty, the law provides a remedy, but in that event the court must designate some other person, who for that purpose discharges the duties of the office. The Act of May 19, 1887, P. L. 138, provides : “ That the county shall be liable only for costs of such witnesses, as the district attorney shall certify were subpoenaed by his order and were in attendance and necessary to the trial of the case,” thus clearly demonstrating that it was the legislative intention, in enacting that statute, to leave the district attorney vested with the discretion to determine what witnesses should be subpoenaed, just as he had previously been. When it is sought to charge the county for costs in a criminal proceeding it is necessary to show a statute requiring the county to pay: Crawford County v. Barr, 92 Pa. 359; Wayne County v. Waller, 90 Pa. 99. There is no authority for charging a county for subpoenaing witnesses at the request of a private prosecutor, unless it be shown that it was done with the approval of the distraict attorney.

The judgment is reversed and judgment is now entered in favor of the county of Luzerne, with costs.


text:
    Lee v. Williams, Appellant
    (No. 1).

      Trial — Charge—Opinion of trial judge.

    Where a case is retried after a reversal by the Superior Court, it is not reversible error for the trial judge to say to the jury “Whatever regret I may personally feel, as a judge, that any such doctrine should have crept in the books, it is none of my business. That is the law of this case, as I understand it, to be laid down by the Superior Court.”
    Whether it is wise for a co-ordinate branch of the government which administers the law to criticise another co-ordinate branch of the government which makes the law, or for one court which is bound to accept the decision, of another court to criticise its decision, may be regarded, within proper limits, as a matter of taste.
    Where the appellate court in reversing a cáse enjoins upon the trial court that careful instructions should be given as to the relative value of the testimony adduced by the plaintiff and defendants respectively, it is not reversible error for the trial judge to say to the jury that “If I were a juryman, I would not hesitate at all under the evidence in this case, to rely on those book entries in preference to the recollection of men, no matter how honest, as to an event which happened seven years ago.”

      Mechanics’ liens — Building contract — Stipulation against liens — Subcontractor — Notice.
    Where a building has been commenced under a contract between the owners and the contractor, containing no stipulation against liens, a material-man from whom no material had been ordered, and who had furnished none prior to the cancellation of the contract by the parties thereto, is bound by the provisions of a second contract relating to the same building, containing a stipulation against liens of which he has actual notice, and which was filed in the prothonotary’s office in accordance with the terms of the Act of June 26, 1895, P. L. 369, before any materials were ordered from or furnished by him.
    Argued Jan. 9, 1906.
    Appeal, No. 33, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., March T., 1898, No. 231, on verdict for plaintiff in case of George F. Lee and Frank J. Scouton, copartners, trading as Lee & Scouton, v. David Williams and Johanna Owens or Susan Owens, owners or reputed owners, and J. W. Zimmerman and J. E. Zimmerman, contractors or builders.
    Before Rice, P. J., Porter, Morrison, Henderson, Orlady, Beaver and Head, JJ.
    Affirmed.
    Scire facias sur mechanic’s lien. Before Wheaton, J.
    The facts appear by the opinion of the Superior Court, and by the report in 26 Pa. Superior Ct. 405.
    Verdict and judgment for plaintiff for $564.56. Defendant appealed.

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

      March 12, 1906:

      E. A. Lynch, with him T. D. Shea and C. Shea, for appellants.
    — The language of the charge was improper and erroneous: Wenger v. Barnhart, 55 Pa. 300; Young v. Merkel, 35 W. N. C. 303; Dosch v. Diem, 38 W. N. C. 533; Pennsylvania Canal Co. v. Harris, 101 Pa. 80; Heydrick v. Hutchinson, 165 Pa. 208; Herrington v. Guernsey, 177 Pa. 175; Cook v. Murphy, 150 Pa. 41; Smith v. Levick, 153 Pa. 522; Lumber Co. v. Gill, 187 Pa. 24.

      James R. Scouton, for appellees.
    — The judge had a right to express his opinion on the evidence: Emmons v. Stahlnecker, 11 Pa. 366; Repsher v. Wat-tson, 17 Pa. 365; Oyster v. Longnecker, 16 Pa. 269; Didier v. Penna. Co., 146 Pa. 582; Fredericks v. R. R. Co., 157 Pa. 103; Dimmick v. Sexton, 125 Pa. 334; Follmer v. McGinley, 146 Pa. 517; McCloskey v. Bells Gap R. R. Co., 156 Pa. 254; Price v. Hamscher, 174 Pa. 73; Johnston v. Com., 85 Pa. 54; Nice v. Walker, 153 Pa. 123; Shovlin et al. v. Commonwealth, 106 Pa. 369; Commonwealth v. Orr, 138 Pa. 276; Commonwealth v. Van Horn, 188 Pa. 143.
   Opinion by

Beaver, J.,

Every experienced trial lawyer knows the stress and strain under which one labors when, after repeated rejections of offers of evidence, the very life of his case seems to depend upon the framing of an offer which will compel admission, or if rejected will lay the ground for a successful appeal.

When this case was last here (Lee v. Williams, 26 Pa. Superior Ct. 405), its disposition turned upon the interpretation of just such an offer, and was sent back for a new trial solely on the ground that the offer imported verity. In then considering the offer which had been made in the court below and which had been rejected, we said: “ The question for consideration practically comes to this : Is a materialman, a subcontractor, after a building has been commenced, under a contract between the owners and the contractor, containing no stipulation against liens, from whom no material has been ordered and who has furnished none, which contract has been canceled by the parties thereto, bound by the provisions of a second contract containing a stipulation against liens, of which he lias actual notice and which is filed in the prothonotary’s office in accordance with the terms of the Act of June 26, 1895, P. L. 369, before any materials have been ordered from or furnished by him ? ” As bearing upon that question, we said, in reference to the offer made by the defendant: “If the defendants’ testimony rises to the height of their offer, this question will be fairly raised, and, as we are bound to accept the offer as verity, we must deal with it, so far as the case now before us is concerned, as if the testimoiry would be equivalent to the offer. We are unable to see, under such circumstances, why an issue of fact would not be raised which must go to a jury. Whatever may be our opinion of this offer, in view of the maiiner in which it was made and of the testimony in the former case, we feel bound to say that, if the facts therein offered to be proved are clearly shown, it will be for a jury to pass upon the credibility of the witnesses and the other facts in the case upon which their testimony is based, under careful instructions from the court as to the relative value of the evidence adduced by the plaintiffs and defendants respective^.”

We were thus guarded in our allusions to the offer then under consideration, for the reason that it seemed to us then, and it is even more clear now, that it was made in the excitement of trial, in order to meet objections in the mind of the court which had been expressed as to previous offers. It will be observed, and should be emphasized, that, in our statement of the question for consideration, it was distinctly stated that the question for consideration was declared to be, whether the subcontractor was “ bound by the provisions of a second contract, containing a stipulation against liens, of which he has actual notice,”_etc.

Whatever may be said as to the difference between the offer in the court below in this trial and that which preceded it, it seems to us clear, after a careful reading of the testimony, that no notice of any kind of the actual cancellation of the first contract was given to the plaintiffs. It is true that Zimmerman, the contractor, states that he told Lee, one of the plaintiffs, on September 7, that such a thing- was contemplated, but it is' also true that lie proceeded with the work, as he himself testifies, on the eighth, ninth, tenth and eleventh days of the month, as if nothing had happened. . It seems to us, therefore, that, unless we can construe a declaration of an intention to do a particular act to be actual notice of an act done, there was no notice of the cancellation of the first agreement conveyed to the plaintiffs, and the court would have been entirely justified in striking out or disregarding all the testimony relating to that subject. If that had been done, binding instructions for the plaintiff could not have been here successfully complained of by the defendant. .

In this view of the case, the question as to the time of delivery is not one of serious practical importance. Even if it were so, however, we think the court committed no error in the manner of its submission to the jury. When the case was here before, we said in reference to this testimony, if it were to be submitted to the jury, that it should be done “ under careful instructions from the court as to the relative value of the evidence adduced by the plaintiffs and defendants respectively.” As to the time of the order and of the delivery of the first lumber under it, the plaintiffs proved by entirely disinterested witnesses that the order was taken upon the plaintiffs’ order book on September 9. The loading slip of the date, September 11, was produced and it was shown by the ledger that the entry was made therein from the loading slip on the same day. There were, therefore, three distinct entries made on these dates by three different disinterested witnesses. The bona tides of the entries was not in any way attacked, nor was there any proof that would indicate either fraudulent intent or practice. Opposed to this was the testimony of the contractor who refused to swear to any date but who admitted, upon cross-examination, that, if • these entries were made, they were more likely to be correct than his recollection. There was also the testimony of a witness who said that he had seen in a memorandum book owned by the contractor, which was not produced but alleged to be lost, the date of the order for the lumber on September 15, instead of September 9. There was other testimony of interested witnesses who testified that the lumber had been delivered on Saturday, the eighteenth, instead of Saturday, the eleventh, of September.

In the first assignment of error the appellants object to the language of the trial judge in the charge as follows : “ Whatever regret I may personally feel, as a judge, that any such doctrine should have crept in the books, it is none of my business. That is the law of this case, as I understand it, to be laid down by the Superior Court.” Whether this language of the judge indicated a difference of view from the decision of this court or whether, viewed in the light of a subsequent declaration, — which was : “ I want to suggest to you too, that you make a disposition of this case without any regard to any bias or prejudice against the law relating to mechanics’ liens. It does not matter how you may feel about that or how I may feel about it. It is of no earthly concern whatever that we may think this is an unwise law which may give to a material-man or a mechanic some sort of method of collecting his debts which we have not got. But that is the law; it is no concern to us whether it is a wise or unwise law,” — it referred to a doubt as to the wisdom of the mechanics’ lien law in general, we are unable to determine, but in either event it did not tend in any way to injure the defendant. On the contrary, if the verdict had been the other way, it might possibly have been complained of by the plaintiffs. Our courts administer the laws as they find them. Whether it is wise for a co-ordinate branch of the government which administers the law to criticise another coordinate branch of the government which makes the law, or for one court which is bound to accept the decision of another court to criticise its decision, may be regarded, within proper limits, as a matter of taste.

In Trust Co. v. Railroad Co., 177 Pa. 38, Mr. Justice Dean, at page 47, said: “ Although the learned judge of the court below formally carried out the direction to submit the evidence to the jury on a retrial, he manifestly did so with great reluctance. While his right to adhere to his individual opinion is not doubted, his duty to officially carry out the instructions of this court by not alone a submission but by a fair and impartial submission of the evidence is undoubted. He is not responsible for our errors, however plain they may appear to him ; we are for his, when they appear to be so to us.”

Whether the personal opinion of the trial judge related to our disposition of this case or to the wisdom of the mechanic’s lien law in general, we are unable to say, but in any event there is no question whatever but that he loyally carried out our instructions, as he understood them, without any appearanee of bias, and of tbe manner in which this was done, or at least so far as this part of the charge is concerned, the appellants cannot reasonably complain. If it tended to influence the jury, it was in their favor.

After stating the exact proposition contained in our opinion in sending the case back for a new trial when it was last here, the judge carefully stated the facts relating thereto. He then said: “ I don’t know whether I can state that to you in any plainer manner, but it is my duty, under the manner in which this case has come back here to be tried, not only to state to you what the fact is which you must determine, to wit: whether he had actual notice or did not have actual notice before furnishing the material for which this claim has been filed, of the stipulation which has been referred to, but it is also my duty to call your attention to the testimony bearing upon that point, and in that connection to the testimony bearing upon the question of when the first delivery was made, because the two things run together.”

After a careful and painstaking statement of all the testimony on both sides of this question, the trial judge goes on to say — and this is assigned for error in the fourth assignment — “ You will see, therefore, that in so far as the testimony on the one side and the other bears on this question of when the lumber was ordered and delivered, you have a set of books kept in the ordinary method, under the evidence, in a businesslike way, the entries of which are in no way suspicious ; and that on the other hand you have the testimony of witnesses who testify from their recollection of what occurred seven years ago last September. Unless you do find —and I have not had my attention, as the trial judge, called to anything of that kind — unless you do find some tangible evidence in this case, not mere guesswork, which would lead you to believe that the entry contained in the order book and the entry upon the loading slip, and the entry in the ledger, with the dates thereon, and the amount of material as therein set forth, are erroneous in some way, while it is entirely for you to say, it will be for you to consider seriously whether that is not more apt to be correct as to the date of the order and the date of the first delivery of this lumber than the recollection of witnesses, however honest they may be, who are now testifying to something which happened seven years ago last September. It is for you to say which you will put the most reliance upon. But in order that the defendants may have the full benefit of everything on the record, if they want it, I say if I were a juryman I would not hesitate at all, under the evidence in this case, to rely on those book entries in preference to the recollection of men, no matter how honest, as to an event which happened seven years ago.” Was this going too far, in view of what was enjoined upon the court as to careful instructions as to the relative value of the testimony adduced by the plaintiffs and defendants respectively ?

In Burke v. Maxwell’s Admrs., 81 Pa. 139, which is much relied upon by the appellants, an expression somewhat similar to that used by the trial judge as to what he would do, if he were a juror, is criticised by Mr. Justice Paxson, who delivered the opinion. But the expression itself and the entire charge in that case were wholly different from what we have here. It is there said : “ The learned judge who tried this case in the court below went far.beyond any recognized rule in his discussion of the evidence. It may very well be that he regarded it as a case which, to some extent, justified him in influencing the jury. But even if such were his view he went too far. There can hardly be a doubt but that his charge controlled the jury. It is true that near its close he told them that they were not bound by his views, and might disregard them, yet almost in the same breath he informed them that, if he were in the jury box, he would find against the plaintiff. This, taken into consideration with the whole tone and tenor of the charge, bore so heavily upon the plaintiff as to leave him scarcely a chance ; it was practically controlling the verdict. When there is sufficient evidence upon a given point to go to the jury, it is the duty of a judge to submit it calmly and impartially.” Judge Paxson then goes on to point out the particulars in which the court drew “ deductions and theories which, if not wholly unsupported, should have been left for the jury.” He then specifies the expressions which could not be justified by anything contained in the testimony. In that case “ the right of a judge to express an opinion upon the evidence ” was clearly recognized. Ditmars v. Com., 47 Pa. 335, was cited, in which it is said: “ It is not error upon the part of the court to express an opinion merely upon the facts of a case, if they are properly referred to the jury. It is often very proper to do so. It aids the jury and subserves the ends of justice. Oare must always be taken, however, not to infringe the province of the jury, so as to relieve them from the full responsibility of pronouncing an intelligent judgment upon them for themselves.” Mr. Justice Paxson then says : “ The judge has a right to aid the jury by an expression of his opinion upon the effect of the evidence, but not so as to mislead them, or control their deliberations : Mohney v. Evans, 51 Pa. 80; and it must be done in such a manner as not to be one-sided or unfair: Ralston v. Groff, 55 Pa. 276.” It is clear, therefore, that it was more the whole tone and tenor of the charge than the expression by the judge of what he would do as a juror which is here criticised and upon which the case was reversed.

There was no unfair balancing of the testimony in this case. The trial judge stated it all with singular clearness and with absolute frankness. Taking the cl large as a whole, we cannot see that the jury, was or ought to have been, influenced beyond what was proper by what was said, and we áre clear that the obligation regarding careful instructions as to the relative value of the testimony, which we placed upon the judge, was neither shirked on the one hand nor magnified on the other. The case was laboriously tried and exhaustively considered in the charge to the jury, and upon careful consideration we can see no just grounds for complaint on the part of the appellants.

Judgment affirmed.


text:
    Lee v. Williams, Appellant
    (No. 2).
    Argued Jan. 9, 1906.
    Appeal, No. 34, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., March T., 1898, No. 231 1/2, on verdict for plaintiff in case of George F. Lee and Frank J. Scouton, copartners, trading as Lee & Scouton, v. David Williams and Johanna Owens or Susan Owens, owners or reputed owners, and J. W. Zimmerman and J. E. Zimmerman, contractors or builders.
    March 12, 1906:
    Before Rice, P. J., Porter, Morrison, Henderson, Orlady, Beaver and Head, JJ.
    Afffirmed.
   Opinion by

Beaver, J.,

This case was tried in the court below and argued here with Lee v. Williams, ante, p. 349.

The assignments of error are in all respects similar to those in the case above referred to, which have been fully considered therein and in which we have this day filed an opinion. What is there said applies equally to this case.

Judgment affirmed.


text:
    Pennsylvania Coal & Coke Company v. Jones, Appellant.

      Equity — Jurisdiction—Ejectment bill — Title to land.

    A court of equity has ho jurisdiction over a bill which involves the title to real estate, and the determination of which requires the construction of legal conveyances formally and solemnly executed as muniments of title, the ascertainment from contradictory testimony of the facts as to notice and possession, and the application of proper legal principles to them. In such a case either party has the constitutional right to have his cause tried before a jury in an action of trespass or ejectment, and may not be deprived of it. Averments in the bill as to multiplicity of actions and irreparable injury are no basis for jurisdiction of equity, if the evidence in support of such averments fail.
    Argued Jan. 10, 1906.
    Appeal, No. 84, April T., 1906, by defendant, from decree of C. P. Cambria Co., June T., 1904, No. 5, on bill in equity in case of Pennsylvania Coal & Coke Company v. Edwin G. Jones et al.
    Before Rice, P. J., Porter, Morrison, Henderson, Orlady, Beaver and Head, JJ.
    Reversed.
    Bill in equity for an injunction. Before O’Connor, P. J.
    The facts are stated in the opinion of the Superior Court.

      .Error assigned was decree awarding an injunction.

      March 12, 1906:

      H. H. Waite and A. V. Barker, of Barker Barker, for appellants.
    — The bill is an ejectment bill: Duncan v. Iron-Works, 136 Pa. 478; Rhea v. Forsyth, 37 Pa. 503; Williams v. Fowler, 201 Pa. 336; Walters v. McElroy, 151 Pa. 549; Patterson’s App., 129 Pa. 109; North Shore R. R. Co. v. Penna. Co., 193 Pa. 641; Booher v. Browning, 169 Pa. 18; Thomas v. Hukill, 131 Pa. 298; Frisbee’s App., 88 Pa. 144; North Penna. Coal Co. v. Snowden, 42 Pa. 488.

      P. J. Little, for appellee.
   Opinion bx

Head, J.,

Some time prior to June 18, 1903, the defendant, Edwin G. Jones and his associates, acquired, by lease or purchase, the right to open and work the coal in a tract of land in Clearfield township, Cambria county, known as the “ Jordan Tract,” containing several hundred acres. This seam of coal appears to have been so located that mines could be opened and the production of coal begun without any great expenditure of time or perhaps of money. At the same time the Pennsylvania Coal Company, the complainant and appellee, was a large owner and operator in that and other portions of Cambria county, it having been stated by its counsel at bar that its holdings were upwards of 150,000 acres of coal. Between the Jordan tract and the branch line of the Pennsylvania railroad over which the coal from said tract would reach the open market there intervened the “John Kratzler tract,” concerning which the present contention arises. A tram or other railroad to carry the coal from the mines on the Jordan tract to the line of the Pennsylvania railroad would naturally cross this tract.

It appears from the evidence that even while Jordon owned the coal and contemplated its development, some negotiations were had between him and Kratzler with the object of securing a right of way across the land of the latter when it would be needed, but they resulted in nothing more than a verbal promise that a deal could or would be made. On June 18, 1908, after Jones had secured the Jordan coal and begun operations for its active development, he entered into a written agreement with Kratzler by the terms of which, for the consideration therein stated, the latter bound himself “ to grant full right of way over bis land in Clearfield township for the purpose of putting in R. R. sidings, coal tipples and all necessary tracts (tracks.) for shipping coal,” etc. At this time Kratzler was the unquestioned owner of the surface of the land in dispute and the appellee had no interest whatever in it. This executory agreement was consummated on November 9,1903, by the delivery to Jones by Kratzler of a deed duly signed and acknowledged which purported to convey in fee a strip thirty-three feet wide through the tract with additional widths for slopes, fills, etc., and -upon the receipt of his deed Jones paid his purchase money in full.

Meantime the coal company on August 19, 1903, through one of its agents, M. D. Bearer, obtained from Kratzler an option to purchase a portion of his surface land at the price of $15.00 per acre, and it seems to be conceded that such description as is contained in this paper would embrace the right of way claimed by Jones, and hence we have the present dispute as to which of the two parties has, in law, succeeded to the title and right of possession which, before June 18, 1903, were unquestionably in Kratzler, the common grantor. This option gave to the company the privilege of buying on, or at any time before October 1, 1903, and the payment of the purchase money was to be the evidence of its intention to make the agreement absolute and become bound thereby. On September 17,1903, the company procured an extension of time for thirty days and on October 22, another for a like term, thus carrying the option period to December 1, 1903. On November 30, 1903, it accepted a deed from Kratzler and paid the purchase money, and by reason thereof claims the exclusive ownership of and right of possession to all of the Kratzler land embraced in its deed, including the strip claimed by Jones under his earlier agreement and deed.

Each of the parties strenuously claims that possession was promptly taken, and here the evidence puts them in the same position of antagonism in which they are left by the various agreements and conveyances already recited. The complainant alleged its peaceable possession, but the evidence showed that such possession consisted of “ nothing more than in prospecting, building fence and putting up notices.” (Testimony of Edward Nicholson, p. 30, App.)

The complainant never having bound itself until it took its deed and paid its money on November 30, could not be said to have, prior to that date, taken any possession adverse to Kratzler, or to his vendee, Jones, while permissively surveying the land or drilling test holes etc. On the other hand, Jones testified (p. 19, App.) that he began work “at once ” after he got his deed on November 6, and built a corduroy bridge, etc. It is reasonably apparent from all the testimony that neither party had any present use for an exclusive occupation of the land described in the conveyances.

While the complainant on the one hand was investigating its new purchase by prospecting, etc., Jones, on the other hand, was opening his coal and building his tram road from his mine over the Jordan land towards the line of his recent purchase. When he came to that line he found, it is true, the two-strand wire fence along it built by the company. He had, however, bought and was claiming only a narrow strip across it. He knew that his vendor, Kratzler, or any subsequent purchaser from him, had the right to fence and hold the balance of the tract and such possession would not be adverse to him. He cut the fence and began the construction of a cribbed or trestle road across the Kratzler tract. This was pulled down by the employees of the company who were in turn promptly arrested. Thereupon this bill was hied, a preliminary injunction was granted which, on final hearing, was made perpetual, and from that final decree this appeal was taken.

We have, then, as this somewhat lengthy statement of the facts drawn from the pleadings and evidence plainly shows, a substantial dispute between the parties as to which of them was the lawful owner of the strip of land in question, and this was the real point in controversy.

The complainant, as the prominent fact in its bill, averred its ownership and recited the conveyances by which it bad been acquired. The defendant in answer denied this alleged ownership, set up his own title and recited the conveyances through which it came. The complainant attacked the earlier agreement of defendants, on the grounds of vagueness in terms and description and as lacking in mutuality. The defendant in turn assailed the' option of the company because there was no consideration paid for the extension of it and showed, by substantial evidence, that when it took its option originally and its deed later it had notice of the earlier title of Jones.

Without attempting to settle the dispute between the parties on its merits it is sufficient for us, in disposing of this appeal, to know it exists and is serious and substantial. It involves the title to real estate. Its determination requires the construction of legal conveyances formally and solemnly executed as muniments of title, the ascertainment, from contradictory testimony, of the facts as to notice and possession and the application of proper legal principles to them. The right of the complainant on every ground on which it has been rested has been denied, not only by the pleadings but by the proofs of the defendant. The jurisdiction of a court of equity to determine the real question in controversy has been challenged at every step from the first motion to dissolve the preliminary injunction to the argument of the present appeal. Under such circumstances either party has the constitutional right to have his cause tried before a jury and may not be deprived of it. To uphold the injunction in the present case would, we think, be depriving the defendant of the use and enjoyment of his property without “due process of law,” and stripping our ordinary courts of law, always favored by our people, of the powers and prerogatives justly belonging to them.

In Rhea v. Forsyth, 37 Pa. 503, Mr. Justice Woodward says: “ It is apparent that where the plaintiff’s right has not been established at law, or is not clear but is questioned on every ground on which he puts it, not only by the answer of the defendant, but by the proofs in the cause, he is not entitled to remedy by injunction.”

In Washburn’s Appeal, 105 Pa. 480, Mr. Justice Clare: says : “ Where rights which are legal are asserted on one side and denied on the other, the remedies are at law. They cannot be settled under equity forms.”

In Duncan v. Iron-Works, 136 Pa. 478, Mr. Justice Sterrett says: “ The legal right of the defendants to do the acts complained of, was thus the controlling question in the case. In view of that the learned master rightly' held that the plaintiffs had mistaken their remedy.”

In North Shore R. R. Co. v. Penna. Co., 193 Pa. 641, Mr. Justice Dean says: “ A court of equity, in the absence of fraud, has no jurisdiction to deprive a party of his legal title to land by decree; that is solely within the jurisdiction of a court of law.”

See also Godino v. Kane, 26 Pa. Superior Ct. 596; Scanlin v. Boro, of Conshohocken, 209 Pa. 48.

It is true the bill contained averments that an injunction was necessary to avoid a multiplicity of actions, and that the acts of defendants done or threatened would work irreparable injury to its land, but the evidence, in our opinion, wholly failed to establish either. No reason is shown why the whole civil question in controversy could not be settled by a single action of trespass or ejectment. Still less is it apparent wherein the construction of the defendants’ tram road, if he chooses to take the risk of building it before the question is settled, would work any irreparable injury to the complainant which itself is engaged in the production and shipping of coal in that vicinity. If useless to it as a railroad connection it could easily be removed or destroyed. These averments in the bill do not of themselves ground the jurisdiction of a court of equity; they simply furnish the basis for the admission of the all important evidence to establish them. The evidence failing, the averments are as if they had not been made. Taking then from the present bill the primary allegations of legal title to the disputed premises in the complainant, and the right of possession flowing therefrom, no sufficient reason is left to support the remedy by injunction. Thus it becomes manifest- that the determination of the question of title was the controlling one in the case. This being so, the cases cited and a host of others lead us directly to the conclusion that the court below was without jurisdiction, and upon that ground we rest the judgment now to be entered.

Decree reversed and bill dismissed without prejudice to the rights of the parties in a proceeding at law; the costs of this appeal to be paid by the appellee.


author: Morrison, J.,

text:
    Commonwealth to use v. Savage, Appellant.

      Execution — Exemption—Forfeited recognisance — Act of April 9, 1849, P. L. 533.
    The exemption Act of April 9, 1849, P. L. 533, does not include an execution issued on a forfeited recognizance, and this is the case although the judgment may have been obtained in an action of assumpsit on the bond.
    Argued Jan. 10, 1906.
    Appeal, No. 48, Jan. T., 1906, by defendant, from order of C. P. Luzerne Co., June T., 1904, No. 109, making absolute rule to set aside claim for exemption and appraisement in case of Commonwealth to use of Wilkes-Barre Law & Library Association v. Adam Savage and Anthony Miliauckas.
    Before Rice, P. J., Beaver, Porter, Morrison, Henderson, Orlady and Head, JJ.
    Affirmed.
    Rule to show cause why defendants’ claim for exemption and the appraisement thereunder should not be set aside. Before Halsey, J.
    The opinion of the Superior Court states the case.

      Error assigned was the order making the rule absolute.

      Cormac Francis Bohan, for appellant.
    — The act of April 9 1849, is a humane law, and as such is entitled to a liberal construction: Weaver’s App., 18 Pa. 307; Com. v. Boyd, 56 Pa. 402.
    The judgment is founded upon a recognizance, and the consensus of standard authorities is that a recognizance is a contract of record: 2 Bl. Com. *465; Com. v. Reynolds, 17 S. & R. 367; Wireman v. Mueller, 18 W. N. C. 84; Com. v. Brown, 17 Pa. Superior Ct. 520; Maloney v. Newton, 85 Ind. 565.

      G. J. Clark, for appellee.
    — Wherever a recognizance has been before the courts it has not been treated as a contract: Respublica v. Cobbett, 3 Dallas, 467; McMicken v. Com., 58 Pa. 213; Com. v. Gray, 26 Pa. Superior Ct. 110.

      March 12, 1906:
    We contend that a recognizance for the appearance of a defendant to answer, etc., in a criminal case “ does not contain any element of contract ” but is a “ debt of record: ” Com. v. Dougherty, 8 Phila. 366; Edwards v. Withrow, 6 Pa. C. C. Rep. 13; Com. v. Whiteside, 1 Lanc. Bar. 17.
   Opinion by

Morrison, J.,

Adam Savage was arrested and held on a charge of attempted robbery. Anthony Miliauckas, the appellant, became bail for his appearance at court in a recognizance duly taken and acknowledged before Wheaton, Judge. Savage failed to appear and the recognizance was duly foifeited.

The present action of assumpsit was brought in the common pleas upon the forfeited recognizance and judgment was obtained against Miliauckas, the surety. Execution being issued thereon, the defendant claimed the benefit of the exemption act. The sheriff allowed the claim and had an appraisement made. Afterwards, on motion of counsel for appellee, the court below set aside the appraisement, holding in an opinion filed, that the exemption act of 1849 did not include a judgment and execution thereon in a forfeited recognizance.

The sole assignment of error is that: “ The court erred in making absolute the rule to show cause why the defendant’s, Anthony Miliauckas, claim for exemption and the appraisement thereunder, shall not be set aside.”

The exemption Act of April 9, 1849, P. L. 533, provides : “That in lieu of the property now exempt by law from levy and sale on execution, issued upon any judgment obtained upon contract and distress for rent, property to the value of $300, .... and no more, owned by or in possession of any debtor, shall be exempt from levy and sale on execution or by distress for rent.”

A recognizance is a debt of record, entered into before some court, judge or magistrate having authority to take the same: Commonwealth v. Emery, 2 Binney, 431.

“ An obligation of record, entered into before a court or officer duly authorized for that purpose, with a condition to do some act required by law, which is therein specified: ” 2 Blackstone’s Commentaries, * 341.

A forfeited recognizance may be enforced by scire facias — a writ which lies on a record only. The action may be by scire facias or debt: Bodine v. Commonwealth, 24 Pa. 69.

The judgment in the present casé was obtained in an action of assumpsit and oil first blush it might seem that the defendant’s right of exemption is controlled by the fact that the judgment was obtained in such action. To support this contention the appellant cites Wireman v. Mueller, 18 W. N. C. 84. That was a case decided by Chief Justice Mitchell while on the common pleas bench in Philadelphia. The action sounded in tort, pure and simple, but the plaintiff waived the tort and recovered, judgment in assumpsit and the learned judge held that: “ The action being commenced as upon contract, must maintain that character with all its incident throughout.” And he further held that the defendant was entitled to his exemption.

In the present case the action does not sound in tort and, in our opinion, the method of suing in assumpsit, instead of by scire facias, waived nothing. The declaration and record clearly show the judgment to have been obtained on a forfeited recognizance, in a criminal case. Therefore, we think there was nothing lost or gained by either party, because the form of action was assumpsit. Actions of debt are now recoverable in assumpsit under the procedure Act of 1887, P. L. 271: Commonwealth v. Meeser, 19 Pa. Superior Ct. 1. We, therefore, have to determine the question raised by the assignment precisely as if the action had been by scire facias.

We have been referred to and have found no decisions of the Supreme or Superior Courts conclusively determining this question. We have examined a number of decisions of the* lower courts, and they, generally, hold that a recognizance in a criminal case is not such a contract as is meant by the act of 1849, and that a defendant in a judgment on such a recognizance is not entitled to the exemption provided in said act. So far as we know this lias been the general view of the judges and lawyers of this state ever since actions have been maintained upon forfeited recognizances. In view of the peculiar qualities and characteristics of recognizances in criminal cases, we do not think it proper construction to hold that the language of the act of 1849 included such obligations, although it must be conceded that in a sense they are contracts ; however, they are not such contracts as the legislative mind had in view as indicated by the language of the act. That a recognizance is a debt of record and that it has qualities very different from an ordinary contract is clearly demonstrated in Commonwealth v. Gray, 26 Pa. Superior Ct. 110. By a forfeiture regularly entered of record the liability of the recognizors becomes absolute : Republica v. Cobbett, 3 Dallas, 467.

The fact that everything is to be presumed to be correctly done in courts of justice and that the defendant cannot be heard in his offer to attack the record, by showing that the recognizance was not regularly acknowledged, tends strongly to show that it differs from an ordinary contract: Commonwealth v. Gray, 26 Pa. Superior Ct. 110.

In assumpsit, on a common contract, the defendant may always show anything tending to establish that in equity and good conscience the plaintiff ought not to recover. Not so in an action on a forfeited recognizance. In Republica v. Cobbet, 2 Yeates, 352, it is said (p. 362) : “ Besides, a recognizance is a matter of record; it is in the nature of a judgment, and the process upon it, whether scire facias or summons, is for the purpose of carrying it into execution, and is rather judicial than original.” See also Bodine v. Commonwealth, 24 Pa. 69.

The appellant cites Commonwealth v. Brown, 17 Pa. Superior Ct. 520, and argues that it is authority on the present question. But we are unable to see that it has the effect contended for. It was clearly an action upon a contract. In 2 Am. & Eng. Ency. of Law (1st ed.), p. 2, it is said : “ A recognizance is an obligation of record entered into before some court of record or magistrate, duly authorized, conditioned for the performance of some particular act. ... To be a recognizance it is essential, not only that the instrument be in writing, but also that it be a matter of record.” See cases cited on same page which hold that a recognizance must be entered of record. In Crane v. Keating, 30 Mass. 339 it is held: “ A bail bond partakes very little of the nature of a contract between the parties in whose name it is taken, but is rather a legal proceeding in the course of justice, the effect of which is regulated by statute.”

Upon due consideration of the authorities cited, and others, and the opinion of the learned court below, we are not convinced of the soundness of the appellant’s contention, that the judgment against him, upon the forfeited recognizance, is a judgment upon a contract, within the meaning of the act of 1849.

It is reasonable to suppose that the legislature knew the peculiar qualities of a recognizance, and if it was intended to embrace in the act of 1849, such instruments, apt language would have been used for that purpose.

We, therefore, reach the conclusion that the learned judge did not err in setting aside the appraisement. The order of the court is affirmed and the appeal dismissed at the costs of the appellant.


text:
    Auman, Appellant, v. Cunfer.

      Fences — Equity—Dismissal of bill — Clean hands.

    A bill in equity filed for an injunction and to charge the defendant with the costs of a line fence is properly dismissed where it is shown that the plaintiff destroyed or instigated the destruction of two fences sufficient for all practical purposes, with the only possible motive of erecting another in order to charge the defendant with the cost thereof.
    Argued Jan. 11, 1906.
    Appeal, No. 54, Jan. T., 1906, by plaintiff, from decree of C. P. Luzerne Co., Oct. T., 1904, No. 11, dismissing bill in equity in case of Lillie B. Auman v. John Cunfer.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison, Henderson and Head, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The opinion of the Superior Court states the case.

      Error assigned was decree dismissing the bill.

      E. D. Vincent, for appellant.
    No appearance nor paper-book for appellee.

      March 12, 1906:
   Opinion by

Beaver, J.,

The plaintiff filed a bill in equity, seeking to enjoin the defendant from interfering with the erection of the one-half of a line fence, which she sought to build under the authority of the auditors of the borough of Ashley, in order to charge the defendant with the cost thereof.

Upon hearing, the court found as facts, based upon abundant testimony:

“1. That between the adjacent lots of improved land owned by the parties there had been an old partition fence which had fallen into decay, and upon notice of its condition defendant patched one-half thereof, so as to make it a sufficient fence.

“ 2. Subsequently defendant erected a good and substantial wire and post fence in place of the old one which he had repaired, and practically in the same place. This fence was shortly thereafter clandestinely destroyed by some one acting for plaintiff, by cutting the wire into short pieces.”

It might also have been found as a fact that the repaired fence which was declared by a number of witnesses to have been good and sufficient was also removed by the direction of the plaintiff.

Under these circumstances, it is not singular that the court decided as matter of law “ that the plaintiff is not entitled to the relief sought and her bill should be dismissed.”

Numerous exceptions were filed by the plaintiff to the findings of fact and law and to the opinion filed in connection with the findings. These exceptions were disposed of in an opinion by the court reciting more fully the facts in the case and dismissing the exceptions.

The testimony makes it very clear that the plaintiff did not come into a court of equity with clean hands. She destroyed, or instigated the destruction of, two fences sufficient for all practical purposes, with the only possible motive of erecting another, in order to charge the defendant with the cost thereof.

The technicalities invoked under the Act of March 11,1842, P. L. 62, “For regulating and maintaining line fences, and for other purposes,” and the tenth section of the Act of March 3, 1847, P. L. 199, ought not, under the circumstances of this case, to be allowed to prevail in a court of equity, even if there was any merit from a legal standpoint in any of them.

We are entirely satisfied with the disposition of the case made by the court below.

Judgment affirmed.