author: Orlady, J.,

text:
    Fuller v. Fisk, Appellant.

      Equity — Injunction—Jurisdiction —■ Waters — Lake — Multiplicity of suits — Trespass.
    1. The complainant in a bill in equity who has established his title in fee to the bed and waters of a lake is entitled to an injunction to restrain the defendants in the bill from engaging in the business of hiring boats and fishing tackle for use on the lake, from tearing down trespass signs placed by the plaintiff upon the lake, and from cutting and removing ice from the body of the lake. ■
    2. If a trespass is continuous in its nature, if repeated acts of wrong are done or threatened, although each of these acts taken by itself may not be destructive and a legal remedy may therefore be adequate for each single act, if it stood alone, the entire wrong will be prevented or stopped by injunction on the ground of avoiding repetition of similar acts.

      July 20, 1910:
    Argued Oct. 11, 1909.
    Appeal, No. 11, March T., 1909, by defendants, from decree of C. P. Lackawanna Co., Sept. T., 1905, No. 8, awarding injunction in case of Helen M. Fuller v. Charlotte Fisk et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Edwards, P. J.
    The facts appear by the opinion of the Superior Court- and by the report of Fuller v. Cole, 33 Pa. Superior Ct. 563.

      Error assigned was decree awarding injunction.

      A. Ricketts, with him E. C. Amerman, for appellants.—
    The court had no jurisdiction: North Penna. Coal Co. v. Snowden, 42 Pa. 488; Norris’s App., 64 Pa. 275; Tillmes v. Marsh, 67 Pa. 507; Haines’s App., 73 Pa. 169; Frisbee’s App., 88 Pa. 144; Grubb’s App., 90 Pa. 228; Messimer’s App., 92 Pa. 168; Barclay’s App., 93 Pa. 50; Williams v. Fowler, 201 Pa. 336; Scanlin v. Conshohocken Boro., 209 Pa. 48; Coward v. Llewellyn, 209 Pa. 582; Godino v. Kane, 26 Pa. Superior Ct. 596; Penna. Coal & Coke Co. v. Jones, 30 Pa. Superior Ct. 358.

      James H. Torrey, with him E. N. Willard, for appellee.
    The court had jurisdiction: Bierbower’s App., 107 Pa. 14; Brush Electric Light Co.’s App., 114 Pa. 574; Johnston v. Price, 172 Pa. 427; Penna. Co. v. Franklin Fire Ins. Co., 181 Pa. 40; Smoulter v. Boyd, 209 Pa. 146; Wheelock v. Noonan, 108 N. Y. 179 (15 N. E. Repr. 67); Mills v. Seed Co., 7 Amer. State Rep. 672; Eaton v. Building & Loan Assn., 11 York, 194; Lembeck v. Nye, 47 Ohio, 336.
   Opinion by

Orlady, J.,

In this bill in equity the plaintiff alleged that she was the owner in fee of certain land covered by water known as Lily Lake, and that the defendants claimed to be the owner of a boathouse and boats which they let for hire to persons to use and sad on the waters of said lake, and were engaged in the business of hiring boats and fishing tackle for use on the lake, and prayed for an injunction to restrain the defendants, their employees and agents, from entering upon the water with boats, and from tearing down or mutilating certain trespass signs that were placed by her upon the waters, and from cutting and removing ice from the body of the lake, etc. After a full hearing the court entered a decree substantially as prayed for.

This appeal was first taken to the Supreme Court, but was remitted to this court for consideration; and twenty-nine assignments of error are presented in support of the appellants’ contentions. Notwithstanding this and the very elaborate argument of the learned counsel of the appellant, the case is a very simple one, and is substantially an argument asking for a reconsideration by this court of the case of Fuller v. Cole, 33 Pa. Superior Ct. 563, in which case an action of trespass was brought for the purpose of testing the plaintiff’s title to this inland body of water, which contains eighty-four acres, more or less, and the judgment in that case, which was affirmed by this court, establishes the title to the land to be in the plaintiff in that and this case.

The judgment of this court in Fuller v. Cole, supra, is directly challenged, and an elaborate argument is urged to induce us to reconsider the conclusion we then reached. Next to being right, nothing should give more pleasure than to correct the error. As said by Judge Paxson in Kelly v. Sun Fire Office, 141 Pa. 10, I may be allowed to point this moral for the reason that it is in part, at least, pointed at myself.

The writer has again carefully gone over the whole record in Fuller v. Cole, 33 Pa. Superior Ct. 563, in connection with the argument offered in this case, and is convinced of the correctness of the judgment entered in that case. So that it must be taken as an established fact that these defendants were trespassers in entering upon the lands of the plaintiff and committing the trespasses complained of in the bill. Despite the judgment of the court in the Cole case, the defendants ignored and defied the notices which the plaintiff served upon them to not trespass upon her land, and the principal question for our consideration now is the jurisdiction of the court to maintain this bill. The plaintiff’s title was adjudicated in this court and virtually by the Supreme Court, when it refused an appeal from our decision in that case, so far as the plaintiff’s rights are concerned the facts are exactly the same.

We said in Bussier v. Weekey, 4 Pa. Superior Ct. 69, that under the Act of June 16, 1836, P. L. 784, the court has undoubtedly the power to restrain the commission of trespass where the remedy at law will be inadequate. If the trespass is fugitive and temporary, then an adequate compensation can be obtained by an action at law, and there is no ground to justify the interposition of a court of equity. If, on the other hand, the trespass is constant, recurring and threatened to continue, or if the trespass contemplates a permanent occupancy and use of the plaintiff’s property, the rule is different and the jurisdiction is sustained. This was repeated when the- case was before this court a second time in 11 Pa. Superior Ct. 463. And we said further, “If any part of the relief sought be of an equitable nature, the court will retain the bill for complete relief:” Story on Equity Jurisprudence, sec. 73.

Where a court of chancery acquires jurisdiction, for any purpose, it will, as a general rule, proceed to determine the whole case, although in doing so, it may decide questions, which standing alone would furnish no basis of equitable jurisdiction: Socher’s Appeal, 104 Pa. 609.

The authority of the court below to entertain the bill cannot be reasonably questioned. While it usually depends, not so much on the want of a common-law remedy, as upon its inadequacy, its exercise is a matter which often rests with the discretion of the court. In other words, the court may take upon itself to say whether the common-law remedy is, under all the circumstances, and in view of the conduct of the parties, sufficient for the purpose of complete justice, or whether the intervention of chancery may not, for that purpose be required and beneficially applied: Penn Iron Co., Ltd., v. Lancaster, 25 Pa. Superior Ct. 478. Or, as said by Judge Henderson in Corbe v. Burkert, 33 Pa. Superior Ct. 317: A common-law remedy exists in many cases where it would be so inadequate to meet all the requirements in order to afford complete justice to the injured parties that equity takes jurisdiction to accomplish' this result. Equity seeks to prevent a multiplicity of actions by disposing in one proceeding of all questions which arise affecting many persons. To oust equitable jurisdiction, the remedy at law must be full, adequate, complete and reasonably convenient (citing a number of cases).

The defendants did not pretend to claim title in themselves but only a right by prescription to use the lake for boating, fishing and recreation purposes, and this the court rightly held to be without foundation in law. The principle determining the jurisdiction embraces two classes of cases, and may be correctly formulated, as follows: If the trespass, although a single act, is or would be destructive, if the injury is or would be irreparable, that is, if the injury done or threatened is of such a nature that, when accomplished, the property cannot be restored to its original condition, or cannot be replaced by means of compensation in money, then the wrong will be prevented or stopped by injunction. Second, if the trespass is continuous in its nature, if repeated acts of wrong are done or threatened, although each of these acts taken by itself may not be destructive, and a legal remedy may therefore be adequate for each single act, if it stood alone, then also the entire wrong will be prevented or stopped by injunction on the ground of avoiding repetition of similar acts. In both cases the ultimate criterion is the inadequacy of the legal remedy: 3 Pomeroy’s Equitable Jurisprudence, sec. 1357.

Equitable jurisdiction does not depend on the want of a common-law remedy, but may be sustained on the ground that it is the most convenient remedy, and where as in this case, these trespassers persisted in entering upon the land, without a. shadow of right and destroyed the notices which the owner had posted, and erected buildings and occupied the waters on the land, an action at law would be totally inadequate, as is shown by the persistence of these defendants in the light of the judgment entered in Fuller v. Cole, 33 Pa. Superior Ct. 563. A separate remedy against each of these trespassers would not be ineffective to relieve the injured party from the annoyance, vexation and oppression of numerous suits against the same wrongdoers in regard to the same subject-matter. The ends of justice require in such case that the whole wrong shall be arrested and concluded by a single proceeding, and such relief equity affords and thereby fulfills its appropriate mission of supplying the deficiency in the legal remedy: Appeal of Brush Electric Light Co., 114 Pa. 574; Johnson v. Price, 172 Pa. 427; Penna. Co. v. Franklin Fire Ins. Co., 181 Pa. 40; Smoulter v. Boyd, 209 Pa. 146; Lembeck v. Nye, 47 Ohio, 336; s. c., 21 Am. St. Repr. 828; 1 Farman on Waters, 274.

No one of the assignments of error is sustained and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Commonwealth v. Casey, Appellant.

      Constitutional law — Class legislation — Liberty to contract — Municipal corporations — Municipal contracts.

    1. The Act of July 26,1897, P. L. 418, entitled, “An Act to regulate the hours of labor of mechanics, workingmen and laborers in the employ of the state, or municipal corporations therein, or otherwise engaged on public works,” is not unconstitutional as violating secs. 1 and 9 of art. I, and secs. 3 and 7 of art. Ill, of the state constitution as class legislation and an unjust interference with a mechanic’s, workman’s or laborer’s liberty to contract.

      2. A contractor for the construction of a filtration plant of a city may be convicted of violating the provisions of the Act of July 26,1897, P. L. 418, if he compels his workmen to labor for more than eight hours a day while engaged in work on the filtration plant.
    Morrison and Head, JJ., dissent.
    Argued Nov. 8, 1909.
    Appeal, No. 101, April T., 1910, by defendant, from judgment of Q. S. Allegheny Co., June Sessions, 1909, No. 217, on verdict of guilty in case of Commonwealth v. John F. Casey.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for violating the eight hour labor law. Before MacFarlane, J.
    The case turned upon the constitutionality of the Act of July 26, 1897, P. L. 418.
    Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.

      Error assigned was in overruling the defendant’s motion to quash the indictment.

      Denis A. E. Behen, for appellant.
    The act infringes upon the constitutional right of the appellant and his employees to freely contract for their services, and deprives mechanics, workingmen and laborers, in the employ of a private contractor doing public work, of their right to contract freely for their own labor — or their property — without due process of law: Erdman v. Mitchell, 207 Pa. 79; Purvis v. United Brotherhood, 214 Pa. 348; Waters v. Wolf, 162 Pa. 153; Com. v. Brown, 8 Pa. Superior Ct. 339; Godcharles v. Wigeman, 113 Pa. 431; State v. Loomis, 115 Mo. 307 (22 S. W. Repr. 350); State v. Goodwill, 33 W. Va. 179 (10 S. E. Repr. 285).
    The act is not a legitimate exercise of the police power of the state, vested in the legislature: Com. v. Zacharias, 3 Pa. Superior Ct. 264; Com. v. Brinton, 132 Pa. 69; Com. v. Keary, 14 Pa. Superior Ct. 583; Com. v. Vrooman, 164 Pa. 306; Com. v. Beatty, 15 Pa. Superior Ct. 5; Com. v. Hamilton Mfg. Co., 120 Mass. 383; Tiedman’s Police Power, see. 95; Holden v. Hardy, 169 U. S. 366 (18 Sup. Ct. Repr. 383); Lochner v. N. Y., 198 U. S. 45 (25 Sup. Ct. Repr. 539); Muller v. Oregon, 208 U. S. 412 (28 Sup. Ct. Repr. 324); Ritchie v. People, 155 Ill. 98 (40 N. E. Repr. 454); In re Eight Hour Bill, 21 Colo. 29 (39 Pac. Repr. 328); In re Kuback, 85 Cal. 274 (24 Pac. Repr. 737).
    July 20, 1910:
    The act cannot be sustained as a direction by the legislature, the sovereign authority of the state, to one of its creatures or agencies, how public work shall be done: Ex parte Kubach, 9 L. R. A. 482; Seattle v. Smyth, 60 Pac. Repr. 1120; People v. Orange County Road Const. Co., 175 N. Y. 84 (67 N. E. Repr. 129); People ex rel. v. Coler, 166 N. Y. 1 (59 N. E. Repr. 716); Fiske v. People, 52 L. R. A. 291; People v. Grout, 179 N. Y. 417 (72 N. E. Repr. 464).

      John Marron, of Marron & McGirr, with him W. A. Blakeley, district attorney, for appellee.

    The act. is constitutional: Hatfield v. Com., 120 Pa. 395; Com. v. Frantz, 135 Pa. 389; Phila. v. Fox, 64 Pa. 169; Atkin v. Kansas, 191 U. S. 207 (24 Sup. Ct. Repr. 124); Com. v. Beatty, 15 Pa. Superior Ct. 5.
   Opinion by

Orlady, J.,

This defendant was convicted of violating an Act of assembly approved July 26, 1897, P. L. 418, entitled, "An Act to regulate the hours of labor of mechanics, workingmen and laborers in the employ of the State, or municipal corporations therein, or otherwise engaged on public works.” A special verdict was returned by. the ■jury, viz.: "The defendant, John F. Casey, on and before December 18, 1908, had a contract with the city of Pitts-burg, a municipal corporation of the second class of the commonwealth of Pennsylvania, for the construction of a filtration plant for said city. That in the performance of the work stipulated under said contract of construction the defendant employed John Maykutt, and other persons being mechanics, workingmen and laborers on said contract, for the construction of said filtration plant, being public work. That in the performance of the public work stipulated in said contract of construction with the city of Pittsburg, the said John F. Casey permitted and caused John Maykutt and others, mechanics, workingmen and laborers employed by him, on said public work, to work and labor on the 18th day of December, 1908, and other days before and since said day, and previous to the finding of this bill, for more than eight hours in the twenty-four hours of said December 18, 1908, and other days, namely for nine and ten hours on said day and other days before and since said day and prior to the finding of this bill.” The court below held the facts bound to be sufficient in law to justify the conviction of the defendant of the crime alleged in the indictment, and sentenced him to pay a fine of $50.00 and the costs of prosecution..

The first section of the act provides: “That on and after the passage of this act eight hours out of the twenty-four of each day shall make and constitute a legal day’s work for mechanics, workmen and laborers in the employ of the state, or any municipal corporation therein, or otherwise engaged on public works.” The second section provides: “This act shall apply to all mechanics, workingmen and laborers now or hereafter employed by the state, or any municipal corporation therein, through its agents or officers, or in the employ of persons contracting with the state or said corporation for the performance of public work, and in all such employment none but citizens of the United States, or aliens who shall have legally declared their intention to become such, who have been residents of the state in which said work is to be done for the six months preceding the date of such employment, shall be employed by the state or any municipal corporation therein, or by any person or persons contracting with the same; and every contract hereafter made for the performance - of public work must comply with the requirements of this section.” Sections 3 and 4 prescribe the penalties for violations of the act.

It is contended that this statute is unconstitutional in that it is in violations of secs. 1 and 9 of art. I, and of secs. 3 and 7 of art. Ill of the state constitution, as class legislation and an unjust interference with a mechanic’s, workman’s or laborer’s liberty to contract. The argument has taken a wider range than is necessary for a disposition of the case before us. It is true that the title does not specifically refer to alien labor and we are not now concerned with that phase of the case, as it is not raised by this record and need not be considered. We eliminate it as not being in the question involved, and dispose of the rest of the act which is not inseparable and may stand independent of such alleged defect: Smith v. McCarthy, 56 Pa. 359: Hatfield v. Commonwealth, 120 Pa. 395; Commonwealth v. Norton, 16 Pa. Superior Ct. 423; Commonwealth v. Hanley, 15 Pa. Superior Ct. 271; Commonwealth v. Mintz, 19 Pa. Superior Ct. 283; Commonwealth v. Martin, 35 Pa. Superior Ct. 241.

This legislation regulates the laws of labor for the employees of the state, and of the municipal corporations it has created, and over which it has absolute control, even to the extent of abolishing them. It does not affect the hours of labor of employees under private contracts. Municipal corporations are agents of the state, invested with certain subordinate governmental functions for reasons of convenience and public policy. They are created, governed and the extent of their powers determined by the legislature, and subject to change, repeal and total abolition at its will. They have no vested rights in their offices, their charters, their corporate powers, or even their corporate existence. This is the universal rule of constitutional law, and in no state has it been more clearly expressed and uniformly applied than in Pennsylvania. A municipal corporation is merely an agency instituted by the sovereign for the purpose of carrying out in detail the objects of government, essentially a revocable agency: Commonwealth v. Moir, 199 Pa. 534. Restraints on the legislative power of control must be found in the constitution of the state, or they rest alone in the legislative discretion. If the legislative action operates injuriously on the municipalities or to individuals, the remedy is not with the courts. The courts have no power to interfere, and the people must be looked to, to right through the ballot box all these wrongs: Pittsburg’s Petition, 217 Pa. 227.

It is conceded that the construction of a filtration plant of this great city was a public work within the meaning of the act. And it would not be seriously contended that the legislature did not have ample power to regulate the hours of labor of those in the employ of the state in the erection of public buildings provided for by legislative appropriation; and its authority does not stop there, but extends to and controls its subdivisions as well. What the city of Pittsburg could not do in violation of this act it could not by contract enable this appellant to do. The authority which regulates the conduct of a municipal corporation, created, controlled and able to be overthrown entirely by it, had the like power to provide for the punishment of persons who aided the municipal corporation in an evasion of the law.

Commonwealth v. Beatty, 15 Pa. Superior Ct. 5; Commonwealth v. Jones, 4 Pa. Superior Ct. 362; Holden v. Hardy, 169 U. S. 366, furnish ample authority for limiting the hours of labor in certain occupations or in certain classes of labor.

This case stands on distinct and separate argument; here there is no question of infringement upon the right to contract or of a disposition of liberty or property. The act is the declaration of the sovereign power that skilled mechanics and laborers shall work for it and its agents but a specified number of hours in each day. The legislature having the unquestioned authority to declare the terms of its own contracts, it may regulate and control those made by its agents, and all persons contracting with municipal corporations under such legal disabilities must be presumed to know the extent and limitations upon their authority.

The whole of the defendant’s contention is fully answered in Atkin v. Kansas, 191 U. S. 207, where, it was announced by the highest authority in the land: “We can imagine no possible ground to dispute the power of the state to declare that no one undertaking to work for it, .or for one of its municipal agencies, should permit or require an employee on such work to labor in excess of eight hours each day, and to inflict punishment upon those who are embraced by such regulations and yet disregard them. It cannot be deemed a part of the liberty of any contractor that he be allowed to do public work in any mode he may choose to adopt, without regard to the wishes of the state; on the contrary, it belongs to the state as the guardian and trustee of its people, and having control of its affairs, to prescribe the conditions upon which it will permit public works to be done on its behalf, or on behalf of its municipalities. No employee is entitled of absolute right and as a part of this liberty to perform'labor for the state.”

The ruling that a state may limit the hours of labor of its employees cannot be disputed, and that a person contracting with it is bound by such a regulation logically follows: Ellis v. U. S., 206 U. S. 246.

There is some conflict of authority in the decisions of other states, but our own are harmonious and lead to but the conclusion that this judgment should be affirmed, and it is so ordered.

Morrison and Head, JJ., dissent.


text:
    Davies, Appellant, v. Oxenreider.

      Contract — Sale—Intention—Delivery—Province of court and jury.

    1. When a purchase of personal property is made in good faith a fair and honest purpose of the vendor and the vendee will not be defeated, if the conduct of the parties shows that there was an intention to transfer the possession as well as the title, and the vendee assumes such control of the property as ought reasonably to indicate a change of ownership.
    2. Whether the sale was made in good faith or was colorable and whether the change of possession was all that could reasonably be expected of the vendor, and was in fact made by the parties to the transaction, taking into consideration the character and situation of the property, are questions of fact to be determined by the jury.
    3. While the delivery of a bill of sale is not a delivery of the property and such transaction is not a sale, if it is not so intended by the parties, strangers have a right to inquire into the transaction and to have it fully explained.
    4. A tenant owed his landlord for money advanced to purchase farm implements; subsequently he executed a bill of sale for the implements, vesting in the landlord their absolute ownership. Before all of the advances were repaid he rented a farm in another township, and the new landlord paid the first landlord the balance due on the bill of sale, and took an assignment of it. The implements were then removed to the other farm. Prior to the original execution of the bill of sale the tenant had given judgment notes to relatives. The second landlord did not know of the existence of these notes, and judgments were not entered upon them until after the assignment of the bill of sale, and the open removal of the implements from the one farm to the other. Held, that the question of the sufficiency of the delivery and the good faith of the transaction was for the jury.
    Argued Nov. 10, 1909.
    Appeal, No. 241, Oct. T., 1909, by defendants, from judgment of C. P. Berks Co., March T., 1907, No. 82, on verdict for defendants in case of Edward Davies v. Sarah K. Oxenreider.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Feigned issue to determine the ownership to farming implements. Before Ermentrout, P. J.

      The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [I consider the question whether possession has been taken purely a legal question in this case, and hold, first, that when there is a sale of personal property, it is not good against the creditors of the vendor, unless possession be delivered by the vendor in accordance with the sale that was made, and that so far as the goods mentioned in the bill of sale are concerned, those goods having been found in the possession of the defendants in the execution, were subject to levy, and that so far as those goods are concerned it will be your duty to assess their value and find a verdict in favor of the defendants; no sufficient possession, in law, having been taken under the bill of sale, those goods were subject to the levy of the execution creditors, the defendants.] [5]
    [I have already said, that, in the judgment of the court, so far as the goods mentioned in the bill of sale are concerned, the title to those goods passed by virtue of the sheriff’s sale to these defendants; that Mr. Davies having taken those, he would be liable for their value, and as to those goods you must find in favor of the defendants.] [6]
    [Under the instructions of the court you will find in favor of the defendants as to the articles contained in the biff of sale.] [7]
    Verdict and judgment for defendants for $326.97. Plaintiff appealed.

      Errors assigned amongst others were (5, 6, 7) above instructions, quoting them.

      Cyrus G. Derr, with him Edward S. Kremp, for appellant,
    cited: Pressel v. Bice, 142 Pa. 263; McCullough v. Willey, 200 Pa. 168; Crawford v. Davis, 99 Pa. 576; Goodard v. Weil & Co., 165 Pa. 419; Bell v. McCloskey, 155 Pa. 319.

      July 20, 1910:

      Silas R. Rothermel, for appellees,
    cited: Stephens v. Gifford, 137 Pa. 219; Lehr v. Brodbeck, 192 Pa. 535; Clow v. Woods, 5 S. & R. 275; Crawford v. Davis, 99 Pa. 576; Bell v. McCloskey, 155 Pa. 319; Kendig v. Binkley, 10 Pa. Superior Ct. 463; McCullough v. Willey, 200 Pa. 168.
   Opinion by

Orlady, J.,

On June 20, 1902, William M. Oxenreider, executed and delivered a judgment note to Sara B. Ernst for $359.89, and on July 7, a like, note to Sara K. Oxenreider, for $500. At the time of making these notes William M. Oxenreider was a tenant farmer, and the owner of considerable stock and implements which were used by him on the Leonhart farm. During that year, by reason of a fire, he lost considerable of his stock and farming implements. In March, 1903, he moved to the farm of David W. Mogel, who occupied one-half of the mansion house, and Oxenreider occupied the other part of the house and another building. Under the lease with Mogel he was a cropper for the half share. Finding his stock insufficient to operate the farm properly, he purchased additional property with money advanced by Mogel, and on April 14, 1903, he executed a bill of sale vesting the absolute ownership of the farming stock and implements in Mogel, and attached to it a schedule of items and values which aggregated $661, which represented the amount of money advanced by Mogel. During his tenancy of three years, the stock was used on the Mogel farm by Oxenreider, who repaid to Mogel all the money advanced by him except $298.

In January, 1906, William Oxenreider and Edward Davies entered into an agreement in writing, whereby Oxenreider was to lease the farm of Davies for one year, commencing April 1, 1906, upon the same terms, which were set forth in an agreement between Davies and one Reber, dated March 19, 1900.

Mogel refused to allow the property to be taken from his farm, without the payment of the balance due to him under the bill of sale, whereupon Davies, on January 6, 1906, paid that amount to Mogel, and with the knowledge and consent of Oxenreider took from him an assignment or transfer of all his right, title and interest in the bill of sale, when Oxenreider moved all the stock to the Davies farm, which he occupied as a tenant until January, 1907, when all the property was levied upon on executions issued by Sara K. Oxenreider, his mother, and Sara B. Ernst, his mother-in-law, on judgments entered on the notes as above stated, and which were entered of record on January 25, 1907. Davies then claimed the stock and two feigned issues were framed under the Act of May 26, 1897, P. L. 95, in each of which Edward Davies was named as the plaintiff, and in one Sara K. Oxenreider, and in the other Sara B. Ernst, was named as the defendant. The cases were tried together. There was some controversy in regard to the title to a mare and a colt, which is eliminated from this case by the jury, under direction of the court, finding as to them for the plaintiff, and “As to the farm stock and implements, we (the jury) find in' favor of the defendants, for the sum of $557.75; Mrs. Oxenreider’s share, $326.97; Mrs. Ernst’s share $230.78.” Separate appeals were taken to this court.

The learned trial judge held that the bill of sale as between Oxenreider and Mogel, by its terms, vested the absolute title of the property in Mogel, but further held, as stated in -the fifth assignment, “I consider the question whether possession has been taken, purely a legal question in this case and hold, first, that when there is a sale of personal property, it is not good against a creditor of the vendor, unless possession be delivered by the vendor, in accordance with the sale that was made, and that so far as the goods mentioned in the bill of sale are concerned, these goods, having been found in the possession of the defendant in the execution, were subject to levy, and that so far as those goods are concerned it will be your duty to assess their value and find a verdict in favor of the defendants. No sufficient possession in the law having been taken under the bill of sale, these goods were subject to levy of execution creditors.”

And, further as stated in the sixth assignment, “I have already said, that, in the judgment of the court, so far as the goods mentioned in the bill of sale are concerned, the title to those goods passed by virtue of the sheriff’s sale to these defendants. That Mr. Davies, having taken those, he would be liable for their value, and as to those goods you must find in favor of the defendants.” And, in the seventh assignment, “Under instructions of the court, you will find in favor of the defendants, as to the 'articles contained in the bill of sale.”

It is to be borne in mind that as between William Oxenreider and Mogel, and subsequently as between Oxenreider and Davies there was no controversy as to the title to this property, and when on January 6,1906, Davies with the knowledge and consent of Oxenreider secured the transfer of the bill of sale (which the learned trial judge held vested absolute title to the property in Mogel), and removed the property specified in it to the Davies farm some miles distant, in another township, that Davies was the sole owner and the only person in possession of that farm. The lease under which Oxenreider entered did not become operative until April 1, following, so that for nearly three months all the personal property was in the possession of Davies on his own land. It is true that Oxenreider was hired at the rate of $10.00 per month to feed and care for this stock along with the other stock owned by Davies on the latter farm, whose hay, straw and grain was used by the stock and the implements were placed in Davies’ barn. ■

The rule of law as to possession has been many times •declared, and as stated in Pressel v. Bice, 142 Pa. 263, “The modern doctrine upon this subject appears to be that, in determining the kind of possession necessary to be given, regard must be had, not only to the character of the property, but also to the nature of the transaction, the position of the parties, and the intended use of the property. No such change of possession as will defeat the fair and honest object of the parties is required.” Which was repeated in McCullough v. Willey, 200 Pa. 168.

The character of the property, the use to be made of it, the nature and object of the transaction, the position of the parties, and the usages of the trade or business are all to be considered in deciding the sufficiency of the possession taken by the purchaser: Reyer v. Rice, 36 Pa. Superior Ct. 178. When á purchase is made in good faith and for a valuable consideration, followed by acts intended to transfer the possession as well as the title, and the vendee assumes such control of the property as reasonably to indicate a change of ownership, the delivery of possession, as a matter of law, cannot be declared to be insufficient. No such change of possession as will defeat the fair and honest purpose of the parties is required: Garretson v. Hackenberg, 144 Pa. 107.

Whether the sale was made in good faith or was color-able, and whether the change of possession was all that could reasonably be expected of the vendor, and was in fact made by the parties to the transaction taking into consideration the character and situation of the property, were questions of fact to be determined by the jury. There has been no deviation from the general rule that delivery of possession is indispensable to transfer a title to chattels by the act of the owner that shall be valid against creditors: Barlow v. Fox, 203 Pa. 114.

It is nevertheless true that in the later cases the rigor of the rule laid down in the. earlier cases, as to what will be a sufficient delivery, and as to what evidence will be sufficient to carry that question to the jury, has been relaxed. In one of the latest cases on the subject, the rule was thus stated by Mr. Justice Brown, “When a purchase is made in good faith, the fair and honest purpose of the vendor and vendee will not be defeated, if the conduct of the parties' shows that there was an intention to transfer the possession as well as the title, and the vendee assumes such control of the property as ought reasonably to indicate a change of ownership: White v. Gunn, 205 Pa. 229: Kimelewski v. Com., 39 Pa. Superior Ct. 308.

In the trial of a feigned issue it is for the court first to determine whether the undisputed facts disclose such a case of possession retained by the vendor after the alleged sale as to condemn the transaction as a legal fraud as to the. execution creditors of the vendor. There must be such an actual bona fide transfer of such possession as the property is capable of receiving, and it must be made in permanent good faith. There must not only be a delivery of the chattel at the time of the transfer, but a continuing possession in the vendee, which must be shown by the claimant: Kendig v. Binkley, 10 Pa. Superior Ct. 463.

When the facts not merely tend, but unmistakably lead to but one conclusion, they are to be disposed of by the court as a matter of law.

This record discloses a case of such disputed facts and equivocal inferences that it became not a question of law for the court but for the jury to dispose of under proper instructions from the court, as to the law applicable thereto. As between William Oxenreider and Davies at the time the property was removed from the Mogel farm, there was no challenge to either the title or to right of possession of Mogel. This was recognized by both Oxenreider and Davies by the payment of the Mogel claim, and the assignment of the bill of sale to Davies. The judgments on which these executions were issued were not entered of record until a year after that transaction, and they had been held by these plaintiffs for four and a half years without putting them on record so as to give notice of then claim. There is nothing to indicate that Davies knew that Oxenreider was in debt to anyone, nor was there any reason suggested for his keeping the transaction a secret one. All the property was openly transferred to another township to the farm of Davies and were there retained by him for nearly three months before Oxenreider became his tenant. The integrity of the notes was not disputed but their existence was not known to Davies, hence his dealing with Oxenreider was not influenced by them.

While the delivery of a bill of sale is not a delivery of the property and such a transaction is not a sale, if it is not so intended by the parties, and strangers have a right to inquire into the transaction, and to have it fully explained: Reynolds v. Richards, 14 Pa. 205, and as said in Bell v. McCloskey, 155 Pa. 319, a more formal delivery might have been made and public notice given of the sale, yet this record does not disclose any reason for such publicity, so that the whole transaction became one of fact for the jury, under proper instructions.

The fifth, sixth and seventh assignments of error are sustained. The judgment is reversed and a venire facias de novo awarded.


text:
    Davies, Appellant, v. Ernst.
    July 20, 1910:
   Opinion by

Orlady, J.,

This feigned issue was tried before the same jury as Edward Davies v. Sara K. Oxenreider. The facts and assignments of error being the same, they are disposed of in the opinion this day filed in No. 241, ante, p. 501.

The assignments of error are sustained, the judgment is reversed and a venire facias de novo awarded.


author: Rice, P. J.,

text:
    Shryock v. North Braddock Borough, Appellant.

      Summary convictions — Boroughs—Appeal from judgment of burgess.

    1. While many of the technical formalities of summary convictions have long since been dispensed with, theré are some essentials which still exist and must appear upon the record. It is still necessary that a summary conviction shall contain a finding that a specific act has been performed by the defendant, and that it shall describe or define it in such a way as to individuate it and show that it falls within an unlawful class of acts.

      Corporations — Water companies — Use of streets — Opening streets— Boroughs — Discretion of borough council.

    2. A water company chartered under the general laws of the commonwealth is not compelled to obtain the consent of a borough council before it may lay its pipes in the streets, or open the streets in order to obtain access to them for a necessary purpose, and a borough exceeds its powers, when, as to such a company, it undertakes to make the exercise of the chartered rights of the coihpany dependent upon the consent of the borough council.
    3. A borough ordinance is invalid as to a chartered water company, which provides that the borough secretary may issue permits to open or dig up a street (1) for the purpose of making connections with the sewer, (2) to lay or connect a water or gas pipe with the main and (3) to make repairs to such pipe or connection, but prohibits the opening of the streets for any other purpose without permission of council.
    Argued. April 14, 1910.
    Appeal, No. 27, April T., 1910, by defendant, from order of C. P. No. 2, Allegheny Co., Jan. T., 1909, No. 83, reversing judgment of a burgess in case of E. L. Shryock et al. v. North Braddock Borough.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Appeal from judgment of a burgess.
    The record of the burgess was as follows:
    Commonwealth of Pennsylvania, County of Allegheny. The Borough op North Braddock vs. E. L. Shryock, John Dorso, Ed. Mangle. Commonwealth of Pennsylvania, County of Allegheny,
    , “Before me the subscriber, Geo. B. Whitfield, the Burgess of the Borough of North Braddock, in and for said County, personally came William Bowers, who upon oath administered according to law, deposes and, says, that at North Braddock, in the County of Allegheny, on the 2d day of October, a. d. 1908, that the said E. L. Shryock, John Dorso and Ed. Mangle did open and dig up Kirkpatrick avenue, opposite the property of Jos. M. Yero, without first having obtained a permit so to do, contrary to the provisions of Ordinance No. 67, a copy of which is hereto attached.
    “Complainant therefore prays and desires that a warrant may issue and the said defendants E. L. Shryock, John Dorso and Ed. Mangle may be arrested and held to answer this charge of violating Borough Ordinance No. 67, and further deponent saith not.
    “William Bowers.
    “Sworn to and subscribed before me this 3d day of October, a. d. 1908.
    “Geo. B. Whitfield,
    Burgess.
    No. 67.
    “an ordinance
    “Regulating the opening of excavations in the highways, streets and alleys of the Borough of North Braddock.
    “Section 1. Be it ordained and enacted by the Town Council of the Borough of North Braddock, and it is hereby ordained and enacted by authority of the same. That it shall be unlawful for any person or persons (other than those acting by direct authority from the Borough) to open, dig, or in any manner disturb any highway, street or alley within the Borough, without making application to the Borough Secretary or to Council, as hereinafter provided.
    “Section 2. When any highway, street or alley is to be opened or dug up for the purpose of making connection with a sewer, or to lay or connect a water or gas pipe with the main, or to make repairs to such pipes or connections, application shall be made to the Borough Secretary. On receipt of such application it shall be the duty of the Secretary to issue such permit, subject to the stipulations, conditions and restrictions hereinafter provided, and the time for which such permit shall be granted shall not exceed five days. Any person or persons receiving such permit shall, during the performance of the said work, keep the said openings protected to the satisfaction of the Burgess, whose directions shall be followed, in order to prevent the street from becoming entirely obstructed at any time, and shall keep approved danger signals at such openings at all times; and upon the completion of the work shall immediately fill up .the trench or excavation to the satisfaction of the Burgess, and, if the street be paved, the same shall be restored to the condition it was in before the opening.
    “Section 3. Each person receiving a permit to open any highway, street or alley, shall, in writing, agree and be bound to restore the same, at his own expense, as herein-before provided, within the time named in said permit. As security for the performance of the said agreement, each person receiving a permit for an opening as aforesaid shall deposit with the Borough Secretary the sum of $5.00, which sum shall be held for one year, to be used, if necessary, in making repairs occasioned by the failure of the person opening said street to properly repair the same. Any person (except a property owner receiving a permit for an opening in connection with his own property) upon receiving a permit under the provisions of this section shall file a bond in the sum of $1,000, to be approved by Burgess, to secure the Borough against any claims against it growing out of the negligence of said person.
    “Section 4. Any gas or water company, in lieu of the deposit aforesaid, as well as to secure the Borough against any claims against it, growing out of the negligence of said company, may give bond, to be approved by the Council, in the sum of $2,000, which bond shall apply to all permits taken out by said company during the period of one year from the date thereof; and, for the same purpose, any other person may give such bond, to be approved as aforesaid, in the sum of $2,000.

      “Section 5. No highway, street or alley of the Borough shall be opened, at any time, for any purpose other than the purposes stated in Section 2 of this Ordinance, nor shall any of said highways, streets or alleys be opened, for any purpose, between the 15th day of November and ■the 1st day of April, without the permission of Council.
    “Section 6. Any person or persons violating any of the provisions of this Ordinance shall forfeit and pay a fine of not less .than $5.00 nor more than $50.00, with costs of suit.
    “Ordained and enacted into a law in Council this 5th day of March, a. d. 1900.
    “W. J. Vance,
    “President of Council.
    “Attest:
    “J. O. Jones,
    “Secretary.
    “Approved, the 5th day of March, 1900.
    “F. K. Leighton, “Burgess.”
    Commonwealth, of Pennsylvania, County of Allegheny. The Borough of North Braddock vs. Arrested by Officer Bowers on view, after 10:55 o’clock a. m. of >- October 2d, 1908. Charge Violating Borough Ordinance No. 67. E. L. Shryock, John Dorso, Ed. Mangle. Paid by Defendants $75.90.
    “And now, October 3d, 1908,- hearing had before Geo. B. Whitfield, Burgess in and for the Borough of North Braddock.
    “The defendants, being sworn, admit opening Kirkpatrick avenue without permission of Council as set forth in warrant and knowing it to be in violation of a borough ordinance.
    “And now, upon a full hearing of all the evidence, it appears to me, the said Burgess of the Borough aforesaid, that the defendants are guilty of the offense charged, to wit, violating Borough Ordinance No. 67.
    “It is therefore adjudged that the defendants be convicted and are accordingly convicted of the offense aforesaid. And I do hereby adjudge that the said defendants, for the said offense, have forfeited the sum of Twenty-five Dollars as a fine each, and the costs of suit $0.90, and in default of payment thereof defendants are sentenced to be committed to the Allegheny County Jail for the space or term of ten days, in accordance with the laws of the Commonwealth of Pennsylvania and the Ordinances of the Borough of North Braddock relating to such offense.
    “Witness the hand of said Burgess of the Borough aforesaid, at North Braddock, this Third day of October, a. d. 1908.
    “Geo. B. Whitfield,
    “Burgess.”

      Error assigned was in reversing the judgment of the burgess.

      Carl C. Baldridge, for appellant. — The borough has power and authority to pass an ordinance regulating the opening of excavations in the highways, streets and alleys within the borough: Philipsburg Boro. v. Central Penna. Tel. & Supply Co., 22 W. N. C. 572; Kneedler v. Norristown Boro., 100 Pa. 368; Livingston v. Wolf, 136 Pa. 519; Paul v. Carver, 26 Pa. 223; Com. v. Rush, 14 Pa. 186; Philadelphia’s App., 78 Pa. 33; Allegheny v. Zimmerman, 95 Pa. 287; Com. v. Hauck, 103 Pa. 536; In re Ruan Street, 132 Pa. 257.
    The ordinance is not in its true meaning unreasonable: Commissioners of Northern Liberties v. Northern Liberties Gas Co., 12 Pa. 318; Fisher v. Harrisburg, 2 Grant, 291; Kneedler v. Norristown Boro., 100 Pa. 368.

      H. E. Carmack, with him A. W. Duff, for appellee.— The words “regulate” and “prohibit” have different and distinct meanings whether understood in their ordinary and common signification or as defined by the court in construing statutes: Bronson v. Oberlin, 41 Ohio, 476.
    July 20, 1910:
    If the borough has power to grant or refuse permission to open a street to shut off water, it also has power to grant or refuse permission to the water company to make excavations or repair its mains, or make connections therewith. If it can refuse the power to disconnect, it can also refuse the permission to connect. "This would be destructive of the franchises conferred by the state by virtue of its paramount authority over the highways and could not be sustained:” Landsdowne Boro. v. Water Co., 16 Pa. Superior Ct. 490.
   Opinion by

Rice, P. J.,

This is an appeal by the borough of North Braddock from the judgment of the court of common pleas reversing, upon certiorari, the judgment of the burgess of the borough in a summary proceeding instituted against the appellees for a violation of a borough ordinance relating to the opening of streets. The appellees were employees-of the ■ Pennsylvania Water Company and were acting under its direction in the opening of the street complained of. The Pennsylvania Water Company is a company chartered under the geiieral laws of the commonwealth relating to water companies, with power to enter upon and occupy the streets of the borough for the purposes of its charter, subject to such regulations adopted by the borough as are referred to or comprehended in the statutes relating to water companies. See the Mountain Water Company v. Borough of Emaus, ante, p. 179.

While many of the technical formalities of summary convictions have long since been dispensed with, there are some essentials which still exist and must appear upon the record. It is still necessary that a summary conviction shall contain a finding that a specific act has been' performed by the defendant, and that it shall describe or define it in such a way as to individuate it and show that it falls within an unlawful class of acts: Com. v. Nesbit, 34 Pa. 398; Reid v. Wood, 102 Pa. 312; Com. v. Davison, 11 Pa. Superior Ct. 130; Com. v. Cannon, 32 Pa. Superior Ct. 78. Whether the act complained of was an unlawful act depends upon the validity of certain provisions of the ordinance referred to. Section 1 provides that it shall be unlawful for any person other than those acting by authority of the borough to open, dig or in any manner disturb any highway, street or alley of the borough without making application to the borough secretary or to council. Section 2 designates three instances where application shall be made to the borough secretary and permits shall be issued by him. They are when the highway is to be opened or dug up, (1) for the purpose of making connection with a sewer; (2) to lay or connect a water or gas pipe with the main; (3) to make repairs to such pipe or connection. Section 5 is .as follows: “No highway, street or alley of the borough shall be opened, at any time, for any purpose other than the purposes stated in section 2 of this ordinance, nor shall any of said highways, streets or alleys be opened, for any purpose, between the 15th day of November and the 1st day of April, without the permission of council.” It is not, and could not be successfully contended that the ordinance is invalid so far as relates to the three purposes mentioned in sec. 2. The permit issues of course, and the regulations relative to obtaining the same and the course to be. pursued under it are reasonable. If, therefore, the record and the findings of the magistrate showed that the defendants opened the street for either one of these three purposes, without first obtaining a permit, the conviction could be sustained. In that case it would be no answer to say that the secretary refused to give the permit. The remedy of the water company for the refusal was not by taking the law into its own hands, but by appropriate proceeding to compel the secretary to perform his duty. But the record of the magistrate does not show that the street was opened for either of these three purposes. It may have been for some other necessary purpose, as, for example, to disconnect a service pipe at the ferrule. If this was an unlawful act it was because, and only because, it was prohibited by the fifth section of the ordinance, either absolutely, as the words of the ordinance might be construed, or unless the permission of council were obtained, which seems to be the more reasonable construction. If the former construction be adopted the ordinance would be prohibitory of the corporation’s use of the streets for many necessary purposes, and it could scarcely be contended that in that view it could be sustained. But if we adopt the latter construction, the question arises whether a provision that' the streets shall not be disturbed for any but the three purposes mentioned, Avithout the permission of council, is a reasonable and valid borough regulation as applied to water companies having the powers of the company in question. Does not such an ordinance assume the right of council to grant or refuse permission in its discretion? And, if it does, is it not a usurpation of power not possessed by borough councils as against such a company? Both of the latter questions must be answered in the affirmative. It is quite apparent that in adopting the ordinance the borough did not intend to vest a merely ministerial power in the council, but did intend that the question, whether any proposed opening of the streets for any purpose except those specified in sec. 2, should be decided by the council in its legislative capacity and according to its discretion and judgment. It is freely conceded by counsel for the appellees that the borough has full power to make all reasonable regulations for the opening of streets, such as, where the.pipes may be laid, the length of ditch to be opened at any one time, the guarding of trenches, the replacing of the earth, and repairing of the street; and it is not denied that it may even prohibit the opening of streets during certain periods of the year, when such opening would endanger the public health or welfare. Counsel say it has full poAver to make proper and reasonable regulations as to all matters relating to the protection and convenience of public travel and the protection of the life, health and property of its citizens; but they contend such regulations must be set forth in the ordinance, they must be general and uniform in character, and they must be reasonable. This view we think is the correct one. A water company chartered under the general laws of the commonwealth is not compelled to obtain the consent of the borough council before it may lay its pipes in the streets or open the streets in order to obtain access to them for a necessary purpose, and the borough exceeded its powers when, as to such company, it undertook to make the exercise of the chartered rights of the company dependent upon the consent of its council. In the case of Lansdowne Borough v. Springfield Water Co., 16 Pa. Superior Ct. 490, we said: “If the borough were asserting the right to grant or refuse permission to the defendant to make excavations for the purpose of repairing its mains or making connections therewith, this would be destructive of the franchises conferred by the state by virtue of its paramount authority over the highways, and could not be sustained.” The same is equally true of the assertion of a right to grant or refuse permission to make the necessary excavations in order to carry out the purposes for which the corporation was created. We hold that the record of the conviction cannot be sustained, because it fails to show that the act complained of was contrary to the general law of the commonwealth or to a valid provision of the ordinance in question.

The judgment is affirmed.


author: Beaver, J.,

text:
    Senft v. McIlvain, Appellant.

      Landlord and tenant — Wrongful distress — Damages—Evidence—Act of March 21, 1772, 1 Sm. L. 370.

    1. In an action against a landlord to recover damages for distress made at a time when no rent was in fact due, it is permissible to introduce testimony of an agent of the defendant’s predecessor in title to show the terms of the plaintiff’s lease from such prior owner, and that the defendant in taking title assented to the terms of the existing lease.
    2. Where in an action to recover damages for an alleged wrongful distress, the court refers in its charge to a particular article as having been taken, but in answer to points positively instructs the jury not to consider the article in estimating the damages, inasmuch as the article had not been a part of the distress, the judgment will not be reversed because of the mistaken statement of the judge.
    3. In an action to recover damages for wrongful distress when no rent is due, the court commits no error in referring in its charge to the Act of March 21, 1772, 1 Sm. L. 370, and stating that the plaintiffs claimed to recover double the amount of the value of the property taken, although there is no distinct claim in the plaintiffs’ statement of a demand to recover double damages, if the statement refers to the act, and the damages are named at double the amount of the value of the property sold.
    4. Where a tenant’s goods are wrongfully distrained when no rent is due, the tenant may proceed in trespass under the act of 1772, without resorting to replevin.
    Argued March 17, 1910.
    Appeal, No. 9, March T.,' 1910, by defendant, from judgment of C. P. York Co., Oct. T., 1908, No. 37, on verdict for plaintiffs in case of Samuel Senft and William Senft, trading as Samuel Senft & Son, v. James K. Mcllvain.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter.
    Affirmed.
    Trespass to recover damages for wrongful distress when no rent was due. Before Bittenger, P. J.
    Plaintiffs’ statement was as follows:
    The plaintiffs, Samuel Senft and William- Senft, trading and doing business as Samuel Senft & Son, by their attorneys James G. Glessner and Kerwin W. Altland, claim damages of the defendant James K. Mcllvain, constable, in the sum of $283.50, which is justly due and owing to the plaintiffs by the defendant upon the cause of action, whereof the following is a statement:
    The plaintiffs, to wit, on August 26, 1908, to wit, in Spring Grove, York county, Pa., held and enjoyed certain premises, with the appurtenances, as tenant thereof to E. W. Senft, at and under a certain rent; yet the defendant, not regarding the act of assembly, entitled, “An act for the sale of goods distrained for rent, and to secure such goods to the persons distraining the same for the better security of rents, and for other purposes therein mentioned,” approved March 21, 1772, then and there wrongfully and injuriously seized, took, and distrained certain goods and chattels, to wit, one black horse, of the plaintiffs’ then found and being in and upon the said premises, with the appurtenances, of the value of $140, and sold said black horse on September 8, 1908, as such distress as aforesaid, by color of said act, for certain rent, to wit, the sum of $50.00, then and there pretended by plaintiffs’ landlord E. W. Senft, to be in arrear and due said E. W. Senft, for the said demised premises, with the appurtenances; whereas at the time of the making of the said distress and sale, as aforesaid, no rent was in arrear or due to the defendant, for or in respect of said premises, with the appurtenances: that on September 8, 1908, aforesaid, said defendant, also sold as the property of plaintiffs, on account of said rent alleged to be in arrears and due to said E. W. Senft, one halter and one horse blanket, of the value of $1.75, that had not been levied upon or distrained by said defendant: said acts being contrary to the form of the said statute in that case made and provided, to the damage of the plaintiffs of $283.50: wherefore this suit is brought.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiffs for $130. Defendant appealed.

      July 20, 1910:

      Errors assigned were the various rulings and instructions set forth in the opinion of the Superior Court.'

      A. J. Hershey, for appellant.

      James G. Glessner, with him K. W. Altland, for appellees.
   Opinion by

Beaver, J.,

The trial in the court below was in an action of trespass for an illegal distraint for rent alleged to be in arrear, under the provisions of the act of March 21, 1772.

The plaintiffs below in their statement, acknowledging themselves as the tenants of one E. W. Senft, allege that he “then and there wrongfully and injuriously seized, took, and distrained certain goods and chattels, to wit, one black horse of the plaintiffs, then found being in and upon the said premises, with the appurtenances, of the value of one hundred and forty dollars, and sold said .black horse on the 8th day of September 1908, as such distress as aforesaid, by color of said act, for certain rent, to wit, the sum of fifty dollars, then and there pretended by plaintiffs’ landlord, E. W. Senft, to be in arrear and due said E. W. Senft, for the said demised premises, with the appurtenances; whereas at the time of the making of the said distress and sale, as aforesaid, no rent was in arrear or due to the defendant, for or in respect of said premises, with the appurtenances.”

The third section of the Act of March 21, 1772, 1 Sm. L. 370, provides: “That in case any distress and sale shall be made by yirtue of this act, for rent pretended to be in' arrear and due, when in truth no rent shall appear to be in arrear or due to the person or persons distraining or to him or them, in whose name or names, or right, such distress shall be taken as aforesaid, that then the owner of such goods and chattels distrained and sold as aforesaid, his executors or administrators, shall and may, by action of trespass, or upon the case, to be brought against the person or persons so distraining, any or either of them, his or their executors or administrators, recover double the value of the goods or chattels so distrained and sold, together with full costs of suit.”

The distinct allegation of the plaintiffs was that at the time of the distress complained of there was no rent due said landlord and that, therefore, the distress was not only illegal, but that in an action of trespass they were entitled to recover double the value of the goods or chattels dis-trained and sold, together with costs.

The principal question involved in the case was one of fact — Was any rent due from the plaintiffs to their landlord at the time when the defendant, as the bailiff of the landlord, made the distress complained of?

The testimony, the admission of, and the refusal to strike which from the record, is complained of in the first, second, third, fourth and sixth specifications of error, relates to this question. The testimony, as it seems to us, was relevant and material and was properly admitted. It went directly to the issue involved and tended to show that the plaintiffs held the demised premises for a period of six months after the original lease made to them by Hershey, the former owner, expired, the same having been extended for six months, by an understanding between Hershey’s agent who sold the property to Senft, the landlord, which was communicated to the tenants. The landlord, it is true, endeavored to establish a direct lease or at least a verbal understanding between him and his tenants in regard to their continued occupancy of the premises after April 1, 1908, when the lease with their former landlord expired. This, however, was denied by the plaintiffs, and the question depended to a large extent upon the testimony of P. H. Hershey, the attorney in fact of the previous owner, who was a competent witness 'and whose testimony was relevant and material to the-issue.

The fifth assignment of error relates to the refusal of the court to strike from the record the statement made by the court of which complaint is made: "Well, he took it away [a blanket] and after that he is' responsible for it, unless he had a right to take it. The man lost his blanket, and he hag a right to recover, unless you show a defense,” and the testimony relating thereto. Whether this testimony was properly admitted and the statement of the court growing thereout was proper is of little practical value, because in the answer to the defendant’s second and third points the jury were not allowed to consider the question of the value of halter and blanket, for which the plaintiffs claim in their statement. These points and their answers were as follows: "Second. If the jury find from the evidence that the halter and blanket were not sold, the plaintiffs cannot recover, the value of such halter and blanket. By the Court: We answer this point as follows: This point is affirmed. Third. Even if the jury find that the halter and blanket were sold by the defendant, the plaintiff cannot recover in this suit, because the halter and blanket were not a part of the distress and, consequently, cannot be recovered for in this suit. By the Court: We .answer this point as follows: This point is affirmed.” The assignment may, therefore, be disregarded.

The seventh assignment relates to a paragraph in the charge of the court which is simply a statement of the act under which the plaintiffs claim and the amount of damages to which they are entitled thereunder, which seems to us to be entirely proper, so far as it goes, and is in accordance with our case Of Thomas v. Gibbons, 21 Pa. Superior Ct. 635. There is no distinct affirmance in the plaintiffs’ statement that they seek to recover double damages under the act referred to, although the act is specifically referred to in the statement, and the damages are evidently placed at double the amount of the value of the property sold, but this question was not raised in the court below and is not complained of in any of the assignments of error. We do not, therefore, consider the failure of the plaintiffs to specifically claim the measure of damages provided for in the statute, as is intimated in Thomas v. Gibbons, 21 Pa. Superior Ct. 635, to be necessary. There is, however, no serious denial of justice herein, because, as is said in the case just cited: “Such a distress, however, being wholly without authority, is a trespass throughout, and the tenant is not confined to an action on the statute, but may sue at common law for the damages actually sustained. ... In such action, the landlord’s liability for exemplary damages, as in all cases of trespass, depends on the circumstances, and is to be determined by the jury, under proper instructions by the court.”

The eighth assignment of error relates to the refusal by the court of the defendant’s fourth point, which was: “If the jury find from the evidence that the plaintiffs had notice of the distress and that they did not sue out a writ of replevin, the plaintiffs have no standing in a suit of trespass, and the verdict must be for the defendant.”. The court answered this point: “This point is not correct and is refused.” T,he action of trespass is specially set forth in the provisions of the act of 1772 already quoted as the proper remedy and we, therefore, see no error in the answer of the court to this point.

The ninth and tenth specifications of error relate to the defendant’s fifth and sixth points which requested binding instructions for the defendant, and the eleventh to a motion for judgment non obstante veredicto, which were refused. The real question involved being essentially one of fact, these points and motion were properly refused.

The twelfth assigns the refusal of the court to grant a new trial, which is not the subject of an assignment of error. The record shows no motion to strike off said refusal, upon which the question could be properly raised.

Taking the case as a whole and viewing it from the different assignments of error as presented, we see no reversible error, and the assignments are, therefore, all dismissed.

Judgment affirmed.


text:
    Southwest Pennsylvania Pipe Lines v. Rodgers Sand Company, Appellant.

      Waters — Rivers—Rights of riparian owners — Evidence—Expert.
    1. The rights of riparian owners under the common law in England do not apply to the principal rivers of Pennsylvania. The owners cannot occupy them to the prejudice of navigation.
    2. Navigable rivers are subject to the control and regulation of the secretary of war.
    3. Where the secretary of war issues a permit to a pipe line company to lay its pipes under and across a navigable river, and he also issues a permit to another company for dredging sand and gravel in the same river, and the pipe line company charges the dredging company with injuring its pipe line, and the evidence is conflicting as to the negligence of both companies in the exercise of the permissions to use the river under their respective permits, the question of negligence is for the jury.
    4. Where in such a case a witness for the pipe line company testifies as to a long continued experience in repairing bréales in pipe lines, he may be permitted to express an opinion as to what caused the particular break in question.
    5. Where a question to a witness is objected to and in part sustained, and exception noted, and thereafter another question is asked the witness, which ho answers without objection, the second question and answer cannot be used as a basis for an assignment of error inasmuch as no exception was taken to it.
    Argued April 15, 1910.
    Appeal, No. 130, April T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1905, No. 101, on verdict for plaintiff in case of Southwest Pennsylvania Pipe Lines v. Rodgers Sand Company.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    ■ Trespass to recover damages for injuries to pipe line. Before Ford, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $500. Defendant appealed.

      July 20, 1910:

      Errors assigned were (1) portions of charge quoted in the opinion of the Superior Court; (2) admission of testimony of L. T. Zeigenheim; (3) in refusing binding instructions for defendant; (4) in refusing judgment for defendant non obstante veredicto.

      William A. Seifert, with him Reed, Smith, Shaw & Beal and Robert J. Dodds, for appellant.
    The Allegheny river is a navigable river: Shrunk v. Navigation Co., 14 S. & R. 71; Wainwright v. McCullough, 63 Pa. 66.
    The authority over navigable rivers is vested in congress: State of South Carolina v. State of Georgia, 93 U. S. 4.
    The opinion testimony of L. T. Zeigenheim was admissible: Cornell v. Green, 10 S. & R. 14; Auberle v. McKeesport, 179 Pa. 321; Graham v. Pennsylvania Co., 139 Pa. 149.
    The appellee was negligent: Omslaer v. Philadelphia Co., 31 Fed. Repr. 354.
    We respectfully submit that the right of a pipe line company to lay its line across the river is subordinate to the right of free and easy navigation: Milwaukee Gas Light Co. v. Schooner “Gamecock,” 23 Wisconsin, 144.

      W. A. Stone, of Stone & Stone, for appellee.
   Opinion by

Beaver, J.,

It was very early held in Pennsylvania that the rights of riparian owners under the common law in England do not apply to our principal rivers.

It was said in Shrunk v. The President, etc., of the Schuylkill Navigation Co., 14 S. & R. 71, by Mr. Chief Justice Tilghman (p. 79): “I consider it as settled in Pennsylvania, by the decision of Carson v. Blazer, 2 Binney, 475, that the owners of land on the banks of the Susquehanna and other principal rivers have not an exclusive right to fish in the river immediately in front of their lands, but that the right to fisheries, in these rivers, is vested in the state, and -open to all. It is unnecessary to enumerate at this time the rivers which may be called principal, but that name may be safely given to the Ohio, Monongahela, Youghiogheny, Allegheny, Susquehanna, and its north and west branches, Juniata, Schuylkill, Lehigh and Delaware.” It was also held in Wainwright v. McCullough, 63 Pa. 66, that, “The Allegheny, Monongahela and Ohio Rivers are rivers naturally navigable and have been classed with the Delaware and Susquehanna” and that “between high and low water mark, the riparian owner cannot occupy to the prejudice of navigation, nor place obstructions on the shore, without express authority from the state.”

It was held in South Carolina v. Georgia et al., 93 U. S. 4, that, “The right to regulate commerce includes the right to regulate navigation and hence to regulate and improve navigable rivers and ports on such rivers.” It was said in that case by Mr. Justice Strong, who delivered the opinion of the court: “That the power to regulate interstate commerce, and commerce with foreign nations, conferred upon Congress by the constitution, extends to the control of navigable rivers between states— rivers that are accessible from other states, at least to the extent of improving their navigability — has not been questioned during the argument, nor could it be with any show of reason. From an early period in the history of the government, it has been so understood and determined.”

It seems to be conceded in this case that the secretary of war has authority to issue permits to, excavate or fill, or in any manner to alter the channel of any navigable river of the United States. In pursuance of this authority, permission was given to the plaintiff, December 1, 1904, to lay two three-inch pipe lines across the Allegheny river at Etna, Pa., four and six-tenths miles above the mouth of the river, under certain conditions, two of which were: “2. That the pipes shall be laid in a trench at least two feet deep all the way across, and between the harbor lines the least depth on top of the pipe at pool full shall be ten feet. 3. The exact location of the crossing shall be plainly indicated by suitable sign boards on each bank.”

The plaintiff availed itself of this permission and laid the pipe lines across the Allegheny river, as outlined therein. One Of these pipe lines was broken by physical force, claimed by the plaintiff to have been applied by the defendant, the result of which was loss to the plaintiff, for which recovery was sought and had in the case under review.

One of the'important questions of fact to be determined was whether or not the plaintiff had complied with the conditions theretofore imposed by the war department of the government of the United States as a condition precedent to the laying of its pipe lines. Whether or not these conditions were complied with was clearly a question of fact. The claim of the plaintiff was that the defendant was negligent in the exercise of a permission which it had received from the war department of the government for dredging for sand and gravel in the bottom of the Allegheny river. That such work was done by the defendant under this permission was not denied. Was it negligently done? This was also a question of fact.

The defendant assigns in its first assignment of error a paragraph of the charge of the trial judge in the court below as follows: “Gentlemen, you will consider all of the facts and circumstances in evidence; if you find the signs were placed on the banks of the river and that they indicated the location of the line, and that the. defendant or its employees saw, or in the exercise of ordinary care could have observed and read the signs, and that the defendant moved its boat immediately over the location of the line as indicated by the signs and began mining for sand and did not exercise the ordinary care required under the circumstances, then the defendant was negligent and it is responsible for any injury to the line which was the natural and probable consequence of that act.”

If the facts essential to a recovery by the plaintiff were to be submitted to the jury, it is difficult to understand how they could have been more clearly and succinctly submitted to them for their finding. There was more or less of contradiction between the testimony of the plaintiff and that of the defendant upon these two principal questions, but it seems to us that there can be no question as to the facts relating thereto being for the jury. If so, they were properly submitted and the paragraph of the charge which is assigned for error cannot be regarded as in any sense erroneous.

The second assignment of error relates to the admission of the testimony of L. T. Zeigenheim, who was permitted to testify as to the cause of the break in the pipe line of the plaintiff which was the subject of investigation. The witness had been in the employ of the plaintiff for twenty-two or twenty-three years repairing breaks in pipe lines for the plaintiff, testifying that this was his chief business, that he had charge of the business, that he had been called upon to repair breaks in pipe lines under water quite often in the Allegheny river and that the condition of the broken pipe when taken from the water was such as to indicate how the break occurred. He was then asked by the plaintiff: “Q. Now I ask you what in your judgment was the cause of the break in that pipe line. Objected to by the defense for the reason that the witness is not competent to answer, the questioh; that it is not possible for the witness to have ascertained how the break occurred; not being on the ground at the time it occurred, and not having seen anything which would have had a tendency at the time the accident occurred to have caused the break. By the Court: The witness may state how a break such as that is might have been caused. The objection is overruled and exception noted to defendant. By Mr. Stone: Q. State how a break of that kind might have been caused. A. It may have been caused by the spud dropping down on it. Q. Is there any other way in which it might have been caused? A. It may have been caused by the buckets that carry up the sand. Q. It was broken entirely off, was it? A. Yes, sir.”

It will be observed that there was no objection by the defendant to the questions suggested by the court, as they were finally put by the plaintiff’s counsel. The objection was made and in part sustained to a question which was not put. On both grounds, therefore, we cannot see that this assignment can be sustained. In the first place, it would seem that the witness was entirely competent to answer the questions propounded and, in the next place, that there was no objection to the questions, as propounded and answered by him.

The remaining assignments of error relate to the refusal of the court to give binding instructions for the defendant and refusing to enter judgment for the defendant non obstante veredicto. In view of what has been said in regard to the first assignment of error, it is clear that these assignments cannot be sustained. These were questions of fact for the jury. They were fairly submitted, the jury passing upon them. It, therefore, follows that the court could not have given binding instructions for the defendant and that it would not have been proper to enter judgment for the defendant non obstante veredicto.

The assignments are all overruled. The judgment is affirmed.


text:
    Joy v. Amantea, Appellant.

      Judgment — Opening judgment — -Evidence — Discretion of court— Vendor and vendee.

    On an application to open a judgment given for purchase money of real estate so that the defendant may deduct therefrom a payment made to a tenant to secure possession of the property, where the question involved is whether the defendant knew of the existence of the lease and purchased the property subject to it, the lower court may in the exercise of a sound discretion determine the question from a consideration of the preponderance of the evidence and the credibility of the witnesses; and in the absence of an abuse of discretion the appellate court will not reverse the action of the lower court in refusing to open the judgment.
    July 10, 1910;
    Argued April 15, 1910.
    Appeal, No. 58, April T., 1910, by defendant, from order of C. P. No. 4, Allegheny Co., Third T;, No. 98, discharging rule to open judgment in case of Maurice Joy v. Frank Amantea.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule to open judgment.
    The facts are- stated in the opinion of the Superior Court.

      Error assigned was order discharging rule to open judgment.

      Geo. Hettrick Bonner, for appellant.

      W. J. O’Donnell, for appellee.
   Opinion by

Beaver, J.,

The appellant, the defendant below, seeks to have opened a judgment given by him to the plaintiff for a portion of the purchase money of a lot which he purchased from the plaintiff, so as to deduct therefrom the amount paid by him to a tenant in possession of the lot at the time of the delivery of the deed, the allegation being that, in order to induce the tenant to surrender the lease, he was compelled to pay $215.

The question as to whether or not the appellant knew of the lease and bought subject to it is a disputed one, but it appears reasonably clear from his own testimony that he at least knew of the existence of the lease prior to the delivery of the deed, the plaintiff alleging that he knew of it before the agreement for the salé was written or executed and that he bought subject to the lease. This was the simple question considered by the court below in passing upon the rule to show cause why the judgment should not be opened. As already stated, there was testimony somewhat contradictory in character. It was, however, such a question as could be passed upon by the court which had jurisdiction of the case and was entirely competent to determine as to the preponderance of the evidence and the credibility of the witnesses. It comes clearly within the principle ruled in Augustine v. Wolf, 215 Pa. 558, in which it is said (p. 562), quoting from Wernet’s Appeal, 91 Pa. 319:

'An application to open a judgment entered on warrant of attorney or on a judgment note is addressed to the equitable powers of the court below, and upon an appeal to the Supreme Court, under the Act of April 4, 1877, P. L. 53, the question is whether the court below rightly exercised its discretion on the evidence. It is a mistake to suppose that the court to which the application is made, cannot judge of the weight of the evidence and the credibility of the witnesses, but in every case where there is a conflict of testimony must send the case to a jury: Jenkintown National Bank’s Appeal, 124 Pa. 337. Applying these well settled principles to the case at bar, we cannot convict the court of error in refusing to open the judgment:’ Blauvelt v. Kemon, 196 Pa. 128.”

So here, on a careful review of the testimony, we cannot convict the court below of error in the exercise of a discretion which clearly belonged to it, and in the doing of which it seemed to be governed by the weight of the evidence.

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


text:
    White Company, Appellant, v. Fayette Automobile Company.

      Practice, C. P. — Amendments—Parties—Addition of new parties.

    1. Statutes of amendment are liberally construed to give effect to their clearly defined intent so as to prevent a defeat of justice through a mere mistake as to parties or the form of action. Amendments, however, will not be allowed to the prejudice of the other party, by introducing a new cause of action or bringing in a new party or changing the capacity in which he is sued. A party whose name it is asked to amend must be in court. If the effect of the amendment will be to correct the name under which the right party was sued it should be allowed; if its effect will be to bring a new party on the record, it should be refused.
    2. Where the defendant in an action of assumpsit is named as a corporation, the record cannot be amended so as to add the names of five individuals as partners doing business under the name given as the. name of the original defendant.
    Argued April 19, 1910.-
    Appeal, No. 181, April T., 1910, by plaintiff, from order of C. P. Fayette Co., March T., 1909, No. 220, refusing permission to amend the record in case of the White Company v. Fayette Automobile Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on book accounts. Before Umbel, J.
    From the record it appeared that the suit was brought on a book account running from September 3, 1907, to August 3, 1908.
    Other facts appear by the opinion of the Superior Court.

      Error assigned was order refusing the amendment.

      H. S. Dumbauld, for appellant.
    There is no question as to the statute of limitations. The only question is the right of plaintiff to the amendment. Appellant contends that the right was clear, and its refusal error: Hackett v. Carnell, 106 Pa. 291; Wright v. Eureka Tempered Copper Co., 206 Pa. 274; McBride v. R. R. Co., 49 Pitts. L. J. 224; Bold v. Harrison, 1 W. N. C. 154; Lippincott v. Hopple, 2 W. N. C. 186; Kaylor v. Shaffner, 24 Pa. 489.
    July 20, 1910:

      H. L. Robinson, of Robinson, McKean & Martin, for appellee,
    cited: Com. ex rel. v. Dillon, 81* Pa. 41.
   Opinion by

Orlady, J.,

On January 13,1909, the plaintiff brought this action in assumpsit, and the return to the summons was made in the following form: “January 16, 1909. Served this writ upon the within named Fayette Automobile Company by handing a true and attested copy thereof, together with a copy of the plaintiff’s statement to George Whyel, treasurer, of said Company.” February 16, 1909, George Whyel appeared and pleaded non assumpsit and nul tiel corporation. On January 10, 1910, the plaintiff moved to amend the record by adding the names of the parties defendant, so that they should be Alfred Johnston, S. C. Johnston, F. H. Rosboro, George G. Gans and George Whyel, partners, doing business as the Fayette Automobile Company, incorporated, and to issue an alias summons issue against the said parties defendant. The amendment was refused by the court, to which counsel excepted, and this appeal was taken, with the order of the court as the only assignment of error.

^Statutes of amendment are liberally construed to give effect to their clearly defined intent so as to prevent a defeat of justice through a mere mistake as to parties or the form of action. Amendments, however, will not be allowed to the prejudice of the other party, by introducing a new cause of action or bringing in a new party, or changing the capacity in which he is sued. A party whose name it is asked to amend must be in court. If the effect of the amendment will be to correct the name under which the right party was sued it should be allowed; if its effect will be to bring a new party on the record, it should be refused: Wright v. Eureka Tempered Copper Co., 206 Pa. 274.

The plaintiff, when he discovered his error, elected to pursue this particular question rather than to discontinue and sue the admittedly proper parties. The exact character of the first named defendant is not shown, but whether existent or nonexistent, is a person and not a corporation. The five named defendants, to be substituted, are designated as partners, doing business as the “Fayette Automobile Co., Incorporated,” certainly different and independent defendants, who were not in court at the time the amendment was requested. It was not a case of bringing the right defendant into court under a wrong name, but that of suing a wrong party, and the well-defined limitation to the right of amendment, is that a new cause of action shall not be introduced, or new parties brought in after the statute has become a bar. It is not always wise to generalize upon such a subject, but it must be an extraordinary case which would justify a court under our statute of amendment, in introducing a new party not claiming under, nor in privy with the original defendant: Commonwealth ex rel. v. Dillon, 81* Pa. 41; Coyne v. Ry. Co., 227 Pa. 496.

The assignment of error is not sustained. The judgment is affirmed.