author: Stern, P. J.,

text:
    Philadelphia Tapestry Mills, Inc., et al., v. Philadelphia Storage Battery Company, Inc., et al.

      Samuel W. Cooper, for plaintiffs; C. J. Hepburn, for defendants.
    May 26, 1928.
   Stern, P. J.,

This is a bill in equity for ah injunction to restrain the defendants from erecting a building in the bed of what is alleged to be a street of the City of Philadelphia, and to order the defendants to remove a fence erected by them across said alleged, street. The pleadings consist of the bill of complaint, answer and plaintiffs’ reply to new matter set forth in the answer. The issues raised are as to whether the land upon which the building is to be erected by the defendants has become a public street in which the plaintiffs have any rights,-and whether, if they have such rights, they are barred from asserting them by coming into equity with unclean hands, and whether, in any event, they have any standing in the case as private litigants.

The court makes the following

Findings of fact.

1. The plaintiff, Baxter, Kelly and Faust, Incorporated, by deeds from Ellen Reed, dated Sept. 22, 1910, recorded W. S. V. 1384, page 147, and from John M. Kennedy, Jr., dated Nov. 3, 1911, recorded W. S. V. 1574, page 81, became, and now is, the owner of the property situated on the south side of Tioga Street, in the 33rd Ward of the City of Philadelphia, extending from the point of intersection of the easterly side line of “C” Street, as plotted on the city plan, with the southerly side line of Tioga Street, easterly to Arbor Street a distance of 132 feet, and in depth southerly of that width along “C” Street and along Arbor Street 250 feet to the line of the property of the defendant, Philadelphia Storage Battery Company.

2. The plaintiff, Philadelphia Tapestry Mills, Incorporated, by deed from Connecting Railway Company, dated Dec. 30, 1915, recorded E. L. T. 533, page 579, became, and now is, the owner of the property situated on the south side of Tioga Street, extending from the point of intersection of the westerly side line of “C” Street, as plotted on the city plan, with the southerly side line of Tioga Street, westerly to the line of Fairhill Railroad Company, a distance of 195 feet, and in depth southerly of that width along “C” Street and along the line of Fairhill Railroad Company 250 feet to the line of the property of the defendant, Philadelphia Storage Battery Company.

3. The defendant, Philadelphia Storage Battery Company, by deeds from Ellen Reed, dated May 12, 1909, recorded W. S. V. 1101, page 487, and from John M. Kennedy, Jr., dated July 1, 1910, recorded W. S. V. 1344, page 217, became, and now is, the owner of the property situated on the north side of Ontario Street, extending from the point of intersection of the easterly side line of “C” Street, as plotted on the city plan, with the northerly side line of Ontario Street, easterly to Arbor Street, a distance of 132 feet, and in depth northerly of that width along “C” Street and along Arbor Street 250 feet to the line of the property of the plaintiff, Baxter, Kelly and Faust, Incorporated.

4. The defendant, Philadelphia Storage Battery Company, by deeds from Connecting Railway Company, dated Sept. 23, 1913, and May 28, 1926, and recorded, respectively, E. L. T. 237, page 574, and J. M. H. 2331, page 368, became, and now is, the owner of the property situated on the north side of Ontario Street, extending from the point of intersection of the westerly side line of “C” Street, as plotted on the city plan, with the northerly side line of Ontario Street, westerly to the line of Fairhill Railroad Company, a distance of 230 feet, and in depth northerly of that width along “C” Street and along the line of Fairhill Railroad Company 250 feet to the line of the property of the plaintiff, Philadelphia Tapestry Mills, Incorporated.

5. The said property of the plaintiff, Baxter, Kelly and Faust, Incorporated, abuts upon and is bounded on two of its sides by open and paved public streets of the City of Philadelphia, namely, Tioga Street, with a frontage thereon of 132 feet, and Arbor Street, with a frontage thereon of 250 feet.

6. The said property of the plaintiff, Philadelphia Tapestry Mills, Incorporated, abuts upon and is bounded on its northerly side by Tioga Street, an open and paved street of the City of Philadelphia, with a frontage thereon of 195 feet. It has its only entrance (other than a railroad siding) at its northwest corner on Tioga Street, approximately 50 feet from Rosehill Street. The rest of the property is enclosed on Tioga Street and along the line of “C” Street, as plotted, by a board fence without openings.

7. The said property of the plaintiff, Philadelphia Tapestry Mills, Incorporated, is used by the said plaintiff only for the storage of coal. It contains a siding from the railroad on the west, with coal pockets and a watchman’s shed, and no other improvements. Aside from the above, it is an open lot.

8. The said property of the plaintiff, Baxter, Kelly and Fanst, Incorporated, when conveyed to them, included a sidewalk and curb the whole length of the property of 250 feet on “C” Street, which sidewalk and curb had been constructed by John M. Kennedy, Jr., who had owned the said property and had conveyed the westerly part of it to Ellen Reed (the said plaintiff’s grantor) by deed dated Sept. 22,1910, recorded W. S. V. 1351, page 303.

9. In and by deeds from John M. Kennedy, Jr., dated May 17, 1927, recorded J. M. H. 2498, page 557, and from Connecting Railway Company et al., dated June 28, 1927, recorded J. M. H. 2515, page 578, the said grantors purported to convey to the defendant.land including that lying within the bed of “C” Street, between its easterly and westerly side lines, as plotted, from the northerly side of Ontario Street to a point 250 feet northerly therefrom, and also the easterly half of the bed of “C” Street, as plotted, from the southerly side of Tioga Street to a point 250 feet southerly therefrom.

10. On Nov. 10, 1926, the defendant, Philadelphia Storage Battery Company, erected a fence across “C” Street at a point 250 feet north of the northerly side line of Ontario Street where the said defendant’s properties join the lines of the properties of the plaintiffs, and the defendant has completely blocked off the said “C” Street to the south of said fence from the use of the plaintiffs and the public, and the defendant claims that the bed of the said “C” Street to the south of said fence belongs to it.

11. The defendant, Philadelphia Storage Battery Company, on March 21, 1927, entered into a written agreement with Stewart Bros. Company, construction engineers, as contractor, providing for the erection by the latter for it of a building as an addition to its plant upon the north side of Ontario Street upon and over the land comprised within the lines of “C” Street, as plotted on the city plan, to the south of the fence hereinbefore referred to, said construction being designed to connect and consolidate its two factory buildings situated on the easterly and westerly side lines of said “C” Street, as plotted; and at the time the bill in this suit was served upon it, it was preparing to proceed with the erection of the same. The proposed addition was planned to extend northwardly from the northerly side line of Ontario Street to a point about 33 feet southwardly from the northerly party-line of said defendant, all of it being upon that part of the land within the lines of the said “C” Street, as plotted, which lies within and between the boundary-lines of the defendant’s said properties.

12. The consent of the public authorities of the City of Philadelphia to the erection of the said building was duly given, the plans for same being duly approved by the Bureau of Building Inspection of the Department of Public Safety of the City of Philadelphia, and a permit for the construction thereof being duly issued under date of April 13, 1927, by the said bureau, with the consent and approval of the City Solicitor, with an order for survey by the Bureau of Surveys of the Department of Public Works, the defendant entering into an agreement with the City of Philadelphia, said agreement being secured by bond filed by the defendant, to remove at its own expense the building to be erected by it if and when the Council of the City of Philadelphia by ordinance should at any time thereafter open “C” Street for public use.

13. The said “C” Street, between Ontario and Tioga Streets, was formally placed upon the plan of streets of the City of Philadelphia on July 1, 1843, and has remained on the city plan since that date, but no legal proceedings for the opening thereof have ever been had, nor has it ever been opened by any act of the public authorities.

14. By Ordinance of the City Councils passed in 1903, Ontario Street, including the intersection of Ontario and “C” Streets (but not north of the northerly side line of Ontario Street), was paved by, and at the expense of, the city up to the curb-lines of Ontario Street. By Ordinance of City Councils passed in 1913, Tioga Street, including the intersection of Tioga and “C” Streets (but not south of the southerly side line of Tioga Street), was paved by, and at the expense of, the city up to the curb-lines of Tioga Street.

15. Signs designating the said alleged street as “C” Street were placed on the buildings at the corner of Ontario and the comer of Tioga Streets at a time which is not disclosed by the testimony, but there is no evidence as to who placed said signs there or by what authority.

16. Since the time when the said “C” Street was placed on the city plan as aforesaid, no taxes have been assessed on the land constituting the bed of the said “C” Street from Ontario to Tioga Streets as a separate property, but there is no evidence as to whether or not the land constituting the bed of said alleged street was assessed for taxes as part of adjoining tracts.

17. The said “C” Street between Ontario and Tioga Streets has never been graded by the city, no city improvements have ever been made therein, and there has never been any expenditure by the public authorities therein or thereon.

18. The deeds to the properties of the parties hereto on the line of the said “G” Street between Ontario and Tioga Streets describe the same as situated on the said “C” Street. The first mention of said “C” Street appears in the deed of John A. Hagan to Active Land Association, dated Dec. 5, 1889, recorded G. G. P. 589', page 80, and in this deed the properties lying on “C” Street are described as situated on the easterly side of “C" Street or the westerly side of “C” Street, as the case may be. In the deed from Active Land Association to John A. Hagan dated Dec. 31, 1890, recorded T. G. 176, page 374, a similar description appears. In the deed of John M. Kennedy, Jr., to the Real Estate Title Insurance and Trust Company, dated July 29, 1892, recorded T. G. 217, page 256, the property conveyed is described as beginning at the point of intersection of the middle line of “C” Street (50 feet wide) and Tioga Street, and as returning to a point in the middle line of “C” Street and thence along the middle line of “C” Street to the point of beginning. The deed of the Real Estate Title Insurance and Trust Company to the Fairhill Railroad Company, dated June 22, 1893, recorded T. G. 350, page 81, employs a similar description.

19. It does not appear from the evidence that any sales of lots whatsoever have ever been made under or by or with reference to or in accordance with the plan of lots of Active Land Association, made by George F. Webster, District Surveyor, under date of Nov. 13, 1888, except solely as included in and covered by the deed from John A. Hagan to Active Land Association, dated Dec. 5, 1889, above referred to, and the deed from Active Land Association to John A. Hagan, dated Dec. 31, 1890, above referred to.

20. From sometime prior to about 1896 or 1897 (not definitely fixed by the evidence), the greater part of the land bounded by Ontario Street on the south, Tioga Street on the north, “D” Street on the east, and what is now the line of the Fairhill Railroad on the west, was occupied by a brickyard. The brickyard occupied all of the land between Ontario and Tioga Streets from a point about 50 feet west of “D” Street to a point a short distance to the east of the line of the railroad, or Rosehill Street. The land within the lines of “C” Street,” as plotted, between Ontario and Tioga Streets, was occupied by and included within the brickyard. The brickyard remained there until about the year 1906 or 1907, when it was moved away.

21. The entrance to the brickyard from Ontario Street, which was by a gate, was on the north side of Ontario Street at a point not definitely fixed by the evidence, but apparently about opposite to the northern end of “C” Street” as opened to the south of Ontario Street. The evidence does not definitely fix the location of the entrance to the brickyard from Tioga Street.

22. The gate which marked the entrance to the brickyard from Ontario Street remained approximately a year after the brickyard was moved away— shortly before the first building of the Philadelphia Storage Battery Company was erected. This building which was erected on the north side of Ontario Street, 20 feet east of the easterly side line of “C” Street, as plotted, was commenced in May, 1909, and completed about September, 1909, and between the time of the removal of the brickyard and the erection of said building of the Philadelphia Storage Battery Company the ground remained in substantially the same condition as before. This building was the first building erected on the entire tract between Ontario and Tioga Streets, between “D” Street on the east and the railroad on the west.

23. Immediately prior to the erection of said building of the defendant in 1909, the entire tract between Ontario and Tioga Streets, “D” Street and the railroad, was an open lot or field, with uneven surface, overgrown with grass and weeds, with scattered mounds or hillocks — the result of the dumping of dirt, refuse and trash — and with holes or depressions apparently the remains of pits from which clay had been dug.

24. At the said time, that is, in 1909, the plotted line of “C” Street, between Ontario and Tioga Streets, was distinguished on the ground only by winding and irregular wagon tracks, but not by any graded or clearly defined pathway.

25. At the time Tioga Street was graded, it was cut through below the grade of the land to the south, leaving a bank along the southerly side line of Tioga Street and across the end of “C” Street, as plotted, about three or four feet in height, but with enough slope to allow wagons to pass over it in places. This bank remained there until the first building of the plaintiff, Baxter, Kelly and Faust, Incorporated, was erected in 1910, at which time it was cut through for a width of 20 or 25 feet to permit the laying of the sidewalk alongside said plaintiff’s building.

26. There was no defined nor uniform nor fairly continuous user of the said “C” Street, between Ontario and Tioga Streets, as a public street at any time prior to the year 1909. After 1909 or 1910 there was a more or less definite and regular user thereof by the public for pedestrian and vehicular traffic.

27. Neither of the plaintiffs has either averred or proved that it will suffer, through the closing of the alleged street by the defendant, any substantial or irreparable special injury, separable from and in addition to that which inconveniences the general public.

28. Since at least 1920 to the present time, the plaintiff, Baxter, Kelly and Faust, Incorporated, has used a large part of the land lying within the lines of “C” Street, as plotted on the city plan, adjoining its factory building, for the storage of coal for use in its plant. At or about the time of the filing of the bill in this suit, it maintained within the said lines of the said alleged street a coal pile abutting upon and piled against the wooden fence along the line of the property of the plaintiff, Philadelphia Tapestry Mills, Incorporated (the westerly side line of said “C” Street), commencing at a point about 65 feet south of Tioga Street and extending about 155 feet in length, with an average height of about 15 feet, and an average width of about 34 feet, but at one point extending to within 12 feet of the wall of the building of the plaintiff, Baxter, Kelly and Faust, Incorporated, on the easterly side line of said “C” Street.

29. The said use of the said bed of “C” Street by the plaintiff, Baxter, Kelly and Faust, Incorporated, has been without any expressed objection on the part of the plaintiff, Philadelphia Tapestry Mills, Incorporated.

30. Extending from the northerly end of said coal pile to the southerly side line of Tioga Street, a distance of about 65 feet, there has existed for several years, and now exists, a dirt pile averaging about four feet in height and with an average width of about 33 feet.

31. Several months prior to the filing of the bill in this suit, the plaintiff, Baxter, Kelly and Faust, Incorporated, erected, and has ever since maintained and still maintains, a garage building within the lines of the said “C” Street, as plotted on the city plan, and opposite the southerly end of the property of the said plaintiff. Said garage was built by it squarely across the centre line of said “C” Street at a point about 230 feet south from the southerly side line of Tioga Street, and is of a length (from east to west and across the line of said “C” Street) 24 feet 4 inches, and of a width (from north to south along the line of said “C” Street) 16 feet 2 inches, and of a height of 9 feet.

32. It does not appear from the evidence that the plaintiff, Philadelphia Tapestry Mills, Incorporated, has ever used the said “C” Street, between Tioga and Ontario Streets, for traffic or any other purpose whatever.

Discussion.

The plaintiffs in this case base their rights upon the theory that “C” Street, between Ontario and Tioga Streets, has become a public street of the City of Philadelphia, which claim is denied by the defendant.

The methods by which a street or highway may come into existence are discussed and clearly defined in the opinion of Mr. Justice Kephart in Milford Borough v. Burnett, 288 Pa. 434. These methods are either statutory, or by dedication, express or implied, or by prescription.

In the present case, it is admitted that the street here in question has never been opened by statutory proceedings.

As far as prescription is concerned, it is stated in Com. v. Phila. & Reading R. R. Co., 135 Pa. 256, 271, that “the use which will establish such a right must be defined, uniform, adverse and under claim of right, and must have continued for twenty-one years.” And in Washington Borough v. Steiner, 25 Pa. Superior Ct. 392, 399, it is said: “When a dedication to public use and the opening of a street to public travel by the owner are followed by its actual use by the public as a highway, the right in the public may become complete and absolute within a much shorter period than twenty-one years. But when the right is dependent upon adverse user alone, it does not become complete until the expiration of that period: Com. v. Llewellyn, 14 Pa. Superior Ct. 214. In the latter case, the user must be adverse, uninterrupted and exclusive of any proprietary right of the former owner: 2 Dillon’s Mun. Corp. (4th ed.), § 637; Weiss v. South Bethlehem, 136 Pa. 294, at page 305.” The law governing this situation is the same as in every other case where a prescriptive adverse right is claimed; it can be acquired only by exercise of the alleged right for a term equal to the statutory period of limitation. In the present case, however, the plaintiffs were unable to prove an adverse user of the bed of the so-called street for a period of twenty-one years. It is unnecessary to discuss all of the evidence in the case, but the chancellor’s findings of fact on that evidence are to the effect that until about 1909 or 1910 (after the brickyard had been removed) there was no uniform or fairly continuous user which would start the running of the twenty-one-year period; until that time there may have been an occasional or sporadic passing through the brickyard, but certainly during that time there was no defined or regular path along “C” Street, and a mere rambling use or the mere existence of zigzag paths, not entirely within the lines of the alleged highway in question, is insufficient to establish such a highway: Com. v. Phila. & Reading R. R. Co., 135 Pa. 256, 271; Milford Borough v. Burnett, 288 Pa. 434, 441.

This brings us to the only remaining method of creating a street and the one upon which the plaintiffs rely in the present case, namely, by dedication and acceptance. Dedication may be either express or implied. An express dedication is stated in Milford Borough v. Burnett, 288 Pa. 434, 438, to be “a continuing offer of a piece of ground to a municipality for public travel. So far as it relates to a municipality, the offer continues (barring legislation) until revoked. Like all other offers, it must be accepted by the municipality for the purpose offered. . . . The acceptance may be express or implied. Implied acceptance may be indicated by some definite authoritative act of the municipality (citing cases), or by long-continued user by the public as a way (citing case), or a combination of municipal acts and public use (citing case).”

Where it is attempted to establish the existence of a street by dedication and acceptance, the user which constitutes or is evidential of the acceptance need not be for the statutory term of twenty-one years. That is to say, while, as against an owner’s intention not to devote the land to the use of the public, there must be brought a continuous and adverse user for the period of limitation to give the public a prescriptive easement in his land; if an intention to set aside land to the public use be shown, a user on the part of the public is pursuant to the dedication, and will be sufficient evidence of a complete dedication and acceptance, even if continued for less than the statutory period. It has been held in many cases that where the owner has expressly or impliedly dedicated part of his land as and for a public street, the public may show its acceptance of the offer by a user of the dedicated street, and that user need not be for so long a time as twenty-one years. Thus, in Com. v. Shoemaker, 14 Pa. Superior Ct. 194, 203, it is said: “The mere dedication of a street to public use by the owner will not make it a public street unless it is accepted by the public, and, until there has been such an acceptance, an indictment will not lie for the obstruction of such a street. Such a street may, however, be accepted by public user, without the active intervention of the municipal authorities. Where such public user is in pursuance of a dedication by the owner, it requires a much less time to presume an acceptance by the public than where there has been a mere user without dedication.” To the same effect are Washington Borough v. Steiner, 25 Pa. Superior Ct. 392; Com. v. Moorehead, 118 Pa. 344, 353; Kniss v. Duquesne Borough, 255 Pa. 417.

It is also true that where a dedication exists, it is not necessary that the acceptance of such dedication be by the expenditure of public money thereon or by any active intervention of the municipal authorities: Kniss v. Duquesne Borough, 255 Pa. 417; Fleck v. Collins, 28 Pa. Superior Ct. 443; Weida v. Hanover Township, 30 Pa. Superior Ct. 424. All that is necessary in order to establish an acceptance of the dedication is to prove a more or less general and continuous user on the part of the traveling public for some considerable period of time, which, as above stated, need not be for the entire statutory period of limitation of twenty-one years. The plaintiffs in the present case have established that such user existed for about sixteen or seventeen years prior to the erection by the defendant of its fence, and, therefore, if such user rested upon a prior dedication, the plaintiffs would have succeeded in establishing that “C” Street, between Ontario and Tioga Streets, had become a public street.

The chancellor, however, is of opinion that no such dedication was proved. The plaintiffs rest their ‘claim in regard to it on the fact that on Nov. 13, 1888, George S. Webster, Surveyor and Regulator of the 10th District, surveyed a plan of lots for the Active Land Association, to which association a large tract of land, including that here involved, was deeded by one John A. Hagan on Dec. 5, 1889 (deed recorded G. G. P. 589‘, page 80). The greater part of the same tract, and including all of the section involved in the present case, was reconveyed by the Active Land Association to the said John A. Hagan on Dec. 30, 1890 (deed recorded T. G. 176, page 374). In these deeds the lots and streets contained in the Webster survey were referred to as the basis of description of the conveyance. Of course, it is well established that, generally speaking, the sale of lots according to a plan which shows them to be on a street implies a grant or covenant to the purchaser that the street shall be forever open to the use of the public and operates as a dedication of the street to public use; the right passing to the purchaser is not the mere right that he may use the street, but that all persons may use it: Quicksall and Lee v. Philadelphia, 177 Pa. 301; Garvey v. Harbison-Walker Refractories Co., 213 Pa. 177; O’Donnell v. Pittsburgh, 234 Pa. 401; Chambersburg Shoe Manuf. Co. v. Cumberland Valley R. R. Co., 240 Pa. 519; Gailey v. Wilkinsburg Real Estate Trust Co., 283 Pa. 381; Weida v. Hanover Township, 30 Pa. Superior Ct. 424. This principle does not apply, however, unless the street in question is created for the first time in the plan or survey under which the lots are sold. If the plan and the deeds conveying the lots refer to a street which is already plotted on the city plan, but unopened, such reference is considered to be merely by way of geographical description, and not as constituting a dedication or as indicating an intention on the part of the grantor to dedicate the bed of the street by thus referring to it.

Thus, in Quicksall and Lee v. The City of Philadelphia, 177 Pa. 301, 304, it is said that “the distinction between the sale of lots according to a plan made by the owner upon which streets are laid out and the mere reference in aid of description to streets projected by the municipality is manifest. In the former case, the inference of dedication arises; in the latter it does not.” And in Henderson v. Young, 260 Pa. 334, 337, it is said that “the trial judge found, and in fact it was agreed between counsel at the trial, that Welsh never plotted or adopted the street in question as part of the development of his property; consequently, the conclusion of the trial judge that a reference to the street as a boundary conveyed no easement over it other than that which would follow as a result of the subsequent action of the city in opening it as plotted to public use is amply sustained by the authorities. The distinction between the case where the owner of land lays property out in lots abutting on a street of his creation, and one where he merely recognizes in his conveyance a street plotted by a municipality, is pointed out in Tesson v. Porter Co., 238 Pa. 504, where the earlier cases are fully reviewed.” And in Gailey v. Wilkinsburg Real Estate Trust Co., 283 Pa. 381, 386, it is said that “the distinction in the creation of the two rights is narrow. When a sale is from a plan of lots laid out by the owner before adoption by the municipality or before the land was incorporated as part of the municipality, the contractual right existing in all lot owners to all highways on the plan lives, regardless of any action by municipal authorities to abolish or change them. On the other hand, if the right accrues through sale of lots after the municipality has adopted the highways, or when an owner sells with reference to streets and alleys projected by the municipality, the easement is limited to a way of necessity, with all its impediments.”

In other words, the general theory of the cases is that where one sells lots according to a plan on which he maps out a new street, there arises therefrom the implication of a dedication of the street, thereby creating a continuing offer to the municipality and to the traveling public to accept the dedication and thus'create an actual highway. But where the owner refers to a street already plotted on the city plan but not opened, no such implication of dedication of the bed of the street arises; he is deemed to be referring to the line of the street merely as a geographical boundary, the same as if he had referred in his deed to a stream or .other natural monument. Moreover, the fact that the street is on the city plan is constructive notice thereof to the grantee as well as to the grantor, and the grantee takes with knowledge of all of the results legally flowing therefrom, namely, that the municipality may subsequently opten the street as a public street or may refrain from so doing.

In the present case, “C” Street, between Tioga and Ontario Streets, was on the city plan since 1843, and, therefore, under the authorities cited and many others that might be given, the reference to such street in the deeds to and from the Active Land Association did not amount to a dedication thereof, and, therefore, there was nothing that was subject to an acceptance either by the municipality as such or by the user thereof by the general public.

There is another reason why the doctrine does not apply here as to lots sold in pursuance of a general plan, in that there is no evidence in the case that any lots were sold by the Active Land Association under and in accordance with the Webster survey. As has already been pointed out, the Active Land Association reconveyed to Hagan almost all the land which had been conveyed to it by him the year before, but whether or not the portion that was not reeonveyed represented lots that had been sold does not appear; indeed, that any such sales were made appears to be negatived by the fact that in the deed of reconveyance it is stated that all of the lots were being reconveyed except those which had been reserved or kept by the stockholders of the association. Be this as it may, however, certainly the properties involved in the present controversy were not sold in accordance with the Webster survey, since these were conveyed subsequently as large'independent tracts and without reference at all to the lots as mapped out on the Webster plan. The doctrine of implied dedication arises, at best, only where the lots have actually been sold in pursuance of the survey: Pittsburgh v. Epping-Carpenter Co., 194 Pa. 318; Bell v. Pittsburgh Steel Co., 243 Pa. 83; Baltimore & Ohio R. R. Co. v. Wilson-Snyder Manuf. Co., 279 Pa. 219.

It thus appears that, viewed from every angle, there is nothing in the evidence from which any dedication can, under the law, be construed to have been made, and if there was no dedication, there could have been no acceptance of what was not dedicated. And since, as has already been pointed out, “C” Street, between Tioga and Ontario Streets, has never been opened by statutory proceedings, and no rights have been acquired thereto by prescription through twenty-one years’ user, it follows that it has never become, by any method, a public street, but remains where it has been since 1843, namely, a mere plotted street on the city plan. The only rights claimed by the plaintiffs being predicated on the theory of “C” Street being a public thoroughfare, it follows that they have not established their case.

Of course, the city may at any time open “C” Street, and if it does so the rights of the plaintiffs will immediately appertain thereto, and the defendant will be obliged to remove its fence and any buildings that it may hereafter construct therein without compensation paid to it because of the necessity of such removal. But the court must deal with the case as it now stands and not with what the situation may be if such action is ever taken by the city.

It is true that, even though, as has been shown, “C” Street, between Ontario and Tioga Streets, has never become a public street, it does not necessarily follow that the plaintiffs have no rights whatever over that part of the bed of the street, as plotted, which lies along the side of their respective properties. As pointed out in the eighteenth finding of fact, their deeds describe these properties as extending along the side of “C” Street, and it is undoubtedly the law that where there is a description of a property as bounded by a street plotted on the city plan but unopened, even though no dedication is effected thereby, the grantee does acquire, as against his grantor, an implied easement over the bed of the street immediately adjoining the property conveyed (unless circumstances attending the conveyance and description of the grant negative such implication), and if and when the street is thereafter actually opened the grantee’s title “jumps" to the middle of the street: Hancock v. Philadelphia, 175 Pa. 124; Neely v. Philadelphia, 212 Pa. 551; Hawkes v. Philadelphia, 264 Pa. 346. The implied easement granted in such cases is of such a nature that if the city relinquishes or abandons its right to open the street by proper municipal action, the grantor must allow to the grantee a way of necessity if the property does not abut on other streets or highways of the city: Hawkes v. Philadelphia, 264 Pa. 346, 351, 352; Gailey v. Wilkinsburg Real Estate Trust Co., 283 Pa. 381, 386; Titusville Amusement Co. v. Titusville Iron Works Co., 286 Pa. 561, 571. What the law, therefore, provides in such a case is simply this: That while in the conveyance of a property bounded by a street plotted but unopened the grantor retains title to the bed of the street, he impliedly gives to his grantee an easement over the land of which the title is thus retained by him, thereby assuring to the grantee access to the property conveyed, and if the actual opening of the street never materializes, some other way of necessity must be granted if there is no other access available; this implied easement is only over the land belonging to the grantor and forming the bed of the plotted street adjoining the property conveyed, and is derived merely from an implied contract between the grantor and grantee; it does not extend over parts of the alleged street upon which the property conveyed does not actually abut, because the grantee knows as well as the grantor that the street is merely a plotted one and subject to future possible action or inaction by the municipality, over which the grantor has no control and as to which he can give no assurances. For this reason, as well as because there is no privity in their relationship (in the absence of a sale of lots under a general plan or survey), such limited easement right cannot be enforced in an action against prior grantees of the same or other grantors abutting on other parts of the street.

We come now to another aspect of the present case, and that is, that, as far as the plaintiff, Baxter, Kelly and Faust, Incorporated, is concerned, it cannot, in any event, succeeed in this action, because it does not come into equity with clean hands. The facts indicate that for several years this plaintiff has maintained an extremely large coal pile in the bed of “C” Street, which in itself almost blocks off the entire passageway, and, more recently, has erected a garage property also in the bed of the street. It is impossible to understand how this plaintiff can seek to prevent the defendant from obstructing the alleged street after it itself has for a long period been doing exactly the same thing, and still continues so to do. Counsel for plaintiff, in their brief, cite the case of Delaware, Lackawanna & Western R. R. Co. v. Stroudsburg, Water Gap & Portland Street Ry. Co., 289 Pa. 131, to the effect that where a court of equity is appealed to for relief, it will not go outside the subject-matter of the controversy and make its interference depend upon the character and conduct of the moving party in no way affecting the equitable right which he asserts against defendant or the relief which he demands. That case decided that the doctrine of the effect of coming into equity with unclean hands would not be applied to a railroad company which sought to enjoin a street railway company from condemning a portion of the former’s right of way merely because of plaintiff’s previous conduct in endeavoring to oust the defendant from land previously leased to it by the plaintiff and later sought to be condemned. The distinction, however, between the principle thus enunciated and the present case is clear. It is true, of course, that the doctrine of coming into equity with unclean hands as barring all right to relief does not apply to an uncleanliness arising from other transactions in no way connected with the subject-matter of the controversy before the court. In the present suit, however, the actions of the plaintiff, Baxter, Kelly and Faust, Incorporated, are directly related to the instant controversy; the acts done by this plaintiff are in pari delicto with those done by the defendant and which are now sought to be enjoined; it would be an absurdity to hold that a plaintiff should be granted relief in equity against the performance of an act exactly similar to that performed and still persisted in by himself.

And, finally, there is another reason why the plaintiffs, in the opinion of the chancellor, cannot succeed in their present action — a reason which applies to both plaintiffs alike — namely, that where the injury complained of is a public one and the right violated is a public right, an individual cannot maintain a suit for an injunction unless he suffers a special injury different from that suffered by the public at large. In such a case, the plaintiff must show an injury peculiar to himself, differing not merely in degree, but also in kind from that which is suffered by the general public: The Buck Mountain Coal Co. v. The Lehigh Coal and Navigation Co., 50 Pa. 91; Gold v. The City of Philadelphia, 115 Pa. 184; Hobson v. Philadelphia, 155 Pa. 131 (where it was held that a person was not entitled to recover damages from a city for the obstruction of a street in which he lived and did business, where the injury which he suffered was common to the public generally); Mint Realty Co. v. Wanamaker, 231 Pa. 277, 279 (where it was said that, “except as the appellant can show that in consequence of the projection it will suffer a special injury, separable from and in addition to that which inconveniences the general public, it can have no standing as a suitor to complain”); Sagerson v. Nathan Realty Co., 281 Pa. 358; A. Wishart & Sons Co. v. Erie R. R. Co., 283 Pa. 100, 102 (where it was said that “it is clear that plaintiff is relying on the long use of the crossing (for more than twenty-one years) by the public to establish certain rights which it argues the railroad company cannot take away. If, by the evidence produced, appellant established the public nature of the ‘road or way’ which constituted the crossing, it thereby showed that the bill of complaint was improperly brought in its name to obtain the relief sought. There is no allegation or evidence that the injury to plaintiff is peculiar in kind or differs more than in degree and extent from that sustained by the general public. Under these circumstances, the remedy for the obstruction of a public road, as in the case of any public nuisance, must be sought by the public authorities, either the attorney-general or district attorney”); Weihle v. Penna. R. R. Co., 8 Dist. R. 309; Seitz v. Lafayette Traction Co., 5 Pa. C. C. Reps. 469, 470 (where it was said that “one who has simply a common interest with all other citizens of a city in a public street is not in a position to ask a court of equity to enjoin the obstruction of it. A court of equity will not enjoin the obstruction of a public street at the suit of a private citizen who shows no personal injury. ... If the injury is a common and public nuisance and there is no special damage to any citizen, relief should be obtained through the interposition of the attorney-general”) ; Cox v. The Philadelphia, Wilmington & Baltimore R. R. Co., 10 W. N. C. 552 (affirmed in Cox’s Appeal, 11 W. N. C. 571). Indeed, the Act of May 3, 1927, P. L. 515, was intended to give to plaintiffs in certain cases private rights to enjoin encroachments upon public streets which they would not have had in the absence of such' statute; this act, however, refers only to the special cases therein mentioned and is not applicable to the present case.

It is true that there is a line of authorities, examples of which are Garvey v. Harbison-Walker Refractories Co., 213 Pa. 177; O’Donnell v. Pittsburgh, 234 Pa. 401; Titusville Amusement Co. v. Titusville Iron Works Co., 286 Pa. 561, which holds -that where there is a sale of lots according to a general plan which shows them to be on streets laid out by the grantor, each purchaser or lot-holder has a standing to object to any one obstructing such street — even, indeed, if he is not an abutter on the particular street in question; that is to say, the owner of any lot in the general plan may assert the public character of such a street and the right of the public to use it. But this principle is not applicable to the present case, because, as has been pointed out, there was no evidence of any sale of lots according to a general plan, and certainly none of the parties to this controversy was a purchaser of any lot under such a plan. The plaintiffs, therefore, are in no position other than that of any private person who seeks to enjoin the maintenance of an obstruction in what (as the plaintiffs allege) is a public street, and the authorities above cited indicate that they have no standing in such a case unless the inconvenience or damage suffered by them by the obstruction is not only greater in degree than that suffered by the public generally, but differs from it in kind. In the present case, no such peculiar or special damage is averred in the bill, nor sustained by any evidence.

For all of the reasons thus stated, the chancellor is of opinion that the plaintiffs are not entitled to the relief sought by them in the present case. It is not necessary to decide, and it is not intended to express herein any opinion in regard to the question, as to what title, if any, the defendant obtained to the bed of “C” Street by virtue of the deeds referred to in the ninth finding of fact.

Conclusions of law.

1. The plaintiff, Baxter, Kelly and Faust, Incorporated, comes into court with unclean hands, and, therefore, is not entitled to relief in the present cause.

2. Suit to restrain encroachment upon a public highway may be maintained only by the public authorities, never by an individual, unless he shows that he will suffer substantial and irreparable special injury, differing in kind and not merely in degree from that which inconveniences the general public.

3. There being no allegation in the bill, nor evidence to the effect, that the plaintiffs have suffered, or will suffer, special injury, differing in kind from that suffered by the general public, they cannot maintain the present action.

4. The mere plotting of streets upon a city plan vests in the public no right to use them for travel; proceedings to open are necessary before they become actual streets and before the exclusive possession of land owners can be interfered with.

5. Such plotted streets may, however, become actual highways merely by public user, but the only user which will effect that result must be defined, uniform, adverse and under claim of right, and must have continued uninterruptedly for twenty-one years.

6. A user for less than twenty-one years may, however, establish a street or highway where such use constitutes an acceptance of a prior dedication of the street, but to produce that result there must have been such a dedication, express or implied, by the owner of the land.

7. A dedication of a street does not result nor is to be implied from a sale of land as bounded by a street plotted on a city plan but not opened.

8. Where an owner of land lays out a plan of lots bounding on streets created under such plan, there is an implied dedication to the grantees and to the public generally of such streets, but no such dedication is effected by or to be implied from such action if lots are not actually sold by said owner under and in accordance with said plan.

9. Where an owner of land lays out a plan of lots to conform to a street located and plotted by a municipality but not opened, and no lots are sold by him abutting upon such plotted street until after the location of said street by the municipality on the city plan, the owner’s plan of lots and any sale of lots by him thereunder do not amount to a dedication of such plotted street.

10. Neither of the plaintiffs has acquired, or now has, any right or easement in “C” Street, as plotted on the city plan, between Ontario and Tioga Streets, under or by reason of the plan of lots surveyed by George P. Webster, Surveyor and Regulator of the Tenth District, on Nov. 13, 1888, for the Active Land Association.

11. “C” Street, as plotted on the city plan, between Ontario and Tioga Streets, is not an open public street of the City of Philadelphia.

12. Where land is sold as bounded by a street plotted on a city plan but not opened, the grantee merely acquires, as against the grantor, an easement in the part of the bed of such plotted street lying alongside of the property conveyed. If the city fails to open the street or subsequently vacates or abandons it, the grantee may have a right, as against the grantor, to a way of necessity, which, however, arises only in case the land has no other way of access to the system of highways of the city.

13. The plaintiffs’ bill should be dismissed.

The court, therefore, enters the following

Decree.

And now, to wit, May 26, 1928, this cause having come on to be heard upon bill, answer, reply to new matter and proofs, upon consideration thereof it is ordered, adjudged and decreed:

1. That the bill be dismissed.

2. That the plaintiffs pay the costs of these proceedings.

The prothonotary will enter this decree nisi and give notice of the same to the parties or their counsel, and if no exceptions are filed within ten days thereafter, either party may present to the court a form of final decree then to be entered.


source: Caselaw Access Project

author: Martin, P. J.,

license: Public Domain

text:
    City of Philadelphia et al. v. Hillier et al.

      H. T. Rotenbury, for plaintiffs; A. S. Ashbridge, Jr., for defendants.
    July 13, 1928.
   Martin, P. J.,

The defendants, Henry E. Hillier and' William C. Wilson, were registered owners of a property situated on the northwest side of Gaul Street, southwest of Tioga Street, in the City of Philadelphia.

On Feb. 3, 1925, an Ordinance of Council of the City of Philadelphia was approved, authorizing the Department of Public Works to enter into a contract for the construction of a sewer in Gaul Street. The ordinance provided that the Director of Public Works should advertise according to law, announcing that bids would be received for the sewer, and allot the contract to the lowest responsible bidder, on condition that the contractor accept the sums assessed upon the line of the sewer in the manner and form authorized by existing ordinances.

On April 3, 1925, Hillier and Wilson agreed in writing to sell their property to the Philadelphia Wool Scouring and Carbonizing Company, Inc.

On April 20, 1925, Fernando di Pasquale entered into a contract with the City of Philadelphia for the construction of the sewer in front of the property. He performed the work and completed it on June 3, 1925.

Henry E. Hillier and William C. Wilson, as registered owners of the property on Gaul Street, were assessed by the City of Philadelphia, to the use of Fernando di Pasquale, the contractor, at the rate of $4 per lineal foot, amounting to $672.08.

On July 6, 1925, Hillier and Wilson conveyed the property to the Philadelphia Wool Scouring and Carbonizing Company, Inc., in compliance with the agreement of sale previously made.

No lien was filed by the City of Philadelphia for the construction of the sewer. The contractor did not collect the claim, but assigned it to the Excelsior Brick and Steel Sales Company, and constituted the assignee his lawful attorney to collect the claim. The Excelsior Brick and Steel Sales Company duly assigned the claim to the Citizens National Bank of Jenkintown. The bank demanded payment of the claim. The demand was refused, and this suit was instituted by the City of Philadelphia, to the use of di Pasquale, to the use of Excelsior Brick and Steel Sales Company, to the use of the Citizens National Bank of Jenkintown, against Henry E. Hillier and William C. Wilson and the Philadelphia Wool Scouring and Carbonizing Company, Inc. A statement of claim was filed, in which the facts were set forth in detail, and an averment made that by virtue of the authority granted under the ordinance, the City of Philadelphia, on or about June 1, 1925, assessed Henry E. Hillier and William C. Wilson, the registered owners, for the sewer constructed in the sum of $672.08; that the measurements and dimensions of the assessment bill were certified as correct by the Surveyor and Regulator of the District and the bill approved by the Chief of the Bureau of Engineering. A copy of the assessment bill is annexed to the statement of claim.

An affidavit of defense was filed raising questions of law, that there is a misjoinder of the parties plaintiff and misjoinder of the parties defendant; that the statement of claim shows the work was done on May 8, 1925, and completed on June 3, 1925, but that no lien was filed, and that there is no basis for the claim against defendants; that the statement of claim shows no liability in the defendants; and the statement of claim filed in the name of the City of Philadelphia as legal plaintiff is not sworn to by any official of the city.

There is no misjoinder of parties plaintiff. The Citizens National Bank of Jenkintown, the last owner of the claim, is the use-plaintiff.

When the sewer was constructed, the Philadelphia Wool Scouring and Carbonizing Company was the equitable owner of the property; Hillier and Wilson held the legal title in trust for the equitable owner.

There is no ground for a joint claim against all the defendants.

It was said in Youngwood Borough v. Gay, 71 Pa. Superior Ct. 154, 158: “The general system of procedure for the recovery of municipal claims is the Act of June 4, 1901, P. L. 364, and its supplements. The 10th section of that statute, as amended by the Act of June 20, 1911, P. L. 1076, provides, inter alia, that municipal claims shall be filed in the Court of Common Pleas . . . ‘within six months after confirmation by the court, where confirmation is required;’ and ‘if a claim be not filed within the time aforesaid, or if it be not prosecuted in the manner and at the time aforesaid, it shall be wholly lost.’ This is the last legislative declaration upon the subject. The penalty for failure to file is not that the claim shall cease to be a lien, but ‘it shall be wholly lost.’ . . . While this case is not precisely similar to Philadelphia v. DeArmond, 63 Pa. Superior Ct. 437, what we there said must lead to the conclusion that the filing within the period fixed by the statute is necessary to avoid a. lapse of the claim.”

Scott Township v. Davis, 77 Pa. Superior Ct. 352, 356, declared that: “Municipalities not only cannot recover assessments for benefits resulting from local improvements without legislative authority, but they can only recover by proceedings in the manner by the statute provided: McKeesport Borough v. Fidler, 147 Pa. 532.”

The court said: “We have seen that the Act of 1901 requires that municipal claims for street improvements be filed in the Court of Common Pleas within six months after the right to file occurred, and that if a claim be not filed within that time, it shall be wholly lost. . . . The propriety of filing the lien is apparent. It would be burdensome and vexatious to owners of property to allow the municipality to continue a claim for the period of three years allowed by the Act of 1919 without some record thereof being made and a definite ascertainment of the extent of the liability of the owner, and the construction of a statute which would produce this result ought not to be given unless it is clearly demanded by its terms. . . . As, therefore, the claim on which the action is based was never filed in the office of the prothonotary, and the action was brought about a year and a-half after the claim had been ‘wholly lost’ by the failure to file, there was no municipal claim existing which would support the plaintiff’s action.”

No lien was filed in the present case, and the claim cannot be collected in an action of assumpsit.

And now, to wit, July 13, 1928, the affidavit of defense raising questions of law is sustained, and it is ordered that judgment be entered in favor of defendants.


author: Stock, J.,

text:
    Reynolds v. Keilholtz.

      F. B. Gerber, for plaintiff; Allen C. Wiest, for defendant.
    Dec. 5, 1927.
   Stock, J.,

Plaintiff filed a reply preliminarily objecting to defendant’s answer on the ground that, under the facts averred in the bill and admitted in the answer and under the facts averred as new matter in the answer, plaintiff is entitled to the decree prayed for.

Plaintiff seeks by his bill to compel defendant to furnish him heat and hot water in a second-floor apartment. A statement of the facts averred in the bill is found in a former opinion (Reynolds v. Keilholtz, 41 York Leg. Record, 97). In this opinion, this court ruled that plaintiff was entitled, on the facts set forth in the bill, to the relief sought.

Defendant filed her answer admitting all the material facts averred in the bill, denying, however, the assertions of legal rights and duties which arose from the admitted facts and which have heretofore been decided adversely to her. She then sets up in her answer, as new matter, the following facts:

Defendant, on Nov. 17, 1918, became vested in an undivided one-half interest in the house and lot of ground containing the apartment which is in dispute. On March 27, 1920, defendant conveyed her undivided one-half interest therein to Anna B. Hildebrand, her mother, who was seized of the other one-half interest or estate. These facts were known to plaintiff before he executed the agreement with Anna B. Hildebrand.

At the time of executing this agreement, it was the intention of Anna B. Hildebrand to rent to her daughter and husband the first-floor apartment, after the conversion of the house into apartments, at a rental of $30 per month, with the provision that the mother, as owner, should furnish the heat and hot water to that apartment. On or about March 27, 1920, before the work of remodeling was begun, this intention was converted into a verbal agreement joined in by all parties. It was the further intention of the owner to occupy, after her marriage, the second-floor apartment with her husband, the plaintiff, and to heat the two apartments with one heating plant to be installed in the cellar of the building, to be operated and fired by the owner and her husband, and to supply hot water to said two apartments from one plant to be installed by plaintiff in the cellar of the building.

After the marriage of the plaintiff and Anna B. Hildebrand, these parties boarded with the daughter and her husband from March 27, 1926, until the death of Anna B. Hildebrand, on Sept. 6, 1926. After her death, plaintiff continued to board with the defendant and her husband. The work of remodeling was begun in April, 1926, and was not fully completed until October or November, 1926, when the heating equipment was installed. The work of remodeling was under the exclusive control of plaintiff, as was provided in the written agreement. The building as remodeled is so constructed that the halls of the two apartments are used in common by the tenants of the two apartments, and, also, to gain access to the third floor as well as to gain access to the rooms in the same apartment situated on opposite sides of the hall. The stairway to the cellar is situated within the first-floor apartment, so that access to it can only be gained by passing through a room of the first-floor apartment. The stairway was not changed on account of expense, but the consent of the daughter was first obtained by the mother and her husband to use the first-floor apartment in passing through to the cellar.

Defendant admits that plaintiff installed the pipes to carry hot water from the cellar to the two apartments, but she alleges that he failed to provide any means for heating the water and avers that she supplied a gas heater and also installed coils in the boiler of the heating plant for that purpose. She, however, does not set this up as a default on the part of plaintiff to perform his agreement to convert the dwelling-house into two apartments, but admits, in paragraph 5,’ that plaintiff has fully performed his obligation in that regard. By this means plaintiff was supplied with hot water until Feb. 12, 1927, when it was shut off by defendant.

Defendant further avers that, prior to Feb. 12, 1927, plaintiff has had free and uninterrupted access to the heating plant and to the hot-water heaters for the purpose of supplying fuel for the same and operating the same in such manner as he sees fit. It appears from these facts that the intention of Anna B. Hildebrand, who was sole owner of the dwelling-house at the time it was remodeled, was to convert the dwelling-house into a duplex apartment-house and to furnish both apartments with heat and hot water from a single heating plant or plants, control over which was retained by her.

Emma H. Keilholtz, the defendant, is now the sole owner of this apartment-house. The intention of the former owner, and the former owner’s method of leasing and furnishing heat and hot water to her tenants, furnishes the means to measure the rights and duties of the present owner and tenant. Plaintiff’s tenancy of the second-floor apartment was created by agreement between him and Anna B. Hildebrand, to take effect upon the death of Anna B. Hildebrand. The devise to Emma H. Keilholtz was made subject to the rights of the plaintiff.

The present owner cannot shift her responsibility to furnish heat and hot water to Reynolds by voluntarily offering him access to the heating plant and the hot-water heaters for the purpose of operating them, and particularly is this so under the circumstances that he cannot furnish such heat and hot water separately to himself, but at the same time will furnish it to the first-floor apartment. No inference can be raised against Reynolds by reason of the alleged inadequacy of the rent he is obligated to pay. He expended the sum of $2853.51 in the work of remodeling the property of another. Surely this alone is sufficient consideration for the present agreement.

The facts set Tip as new matter, admitted to be true for the purpose of passing on these exceptions, do not disclose a defense to the bill. On the contrary, the agreement between Anna B. Hildebrand and the defendant, providing for the lease of the first-floor apartment with the provision that landlord furnish the heat and hot water, shows clearly the intention of all parties that these apartments were to be heated and furnished with hot water by the owner, and when afterwards the tenant of the first-floor apartment became the owner and the surviving husband of the owner became the tenant of the second-floor apartment, the same duties remain on the landlord to furnish heat and hot water and will be implied in the lease: Reynolds v. Keilholtz, supra.

Since the facts in the bill are all admitted in the answer and the facts set forth as new matter in the answer do not constitute a defense to the bill, plaintiff is entitled to a decree pro confesso. This is the practice as established by Equity Rules 48 and 55: Putnam v. Goehring et ux., 73 Pitts. L. J. 915; Colonial Trust Co. v. Harmon Creek Coal Co., 74 Pitts. L. J. 473.

And now, to wit, Dec. 5, 1927, the preliminary objections to defendant’s answer are sustained, and a decree pro confesso is hereby directed to be entered.

From Riohard E. Cochran, York, Pa.


author: Koch, P. J.,

text:
    Manufacturers Finance Co. v. Pope-Marmon Co.

      C. E. Berger, for plaintiff.

      George H. Kaercher and R. R. Koch, for defendant.
    April 16, 1928.
   Koch, P. J.,

The writ in this case was issued on Feb. 24, 1928, and was made returnable Monday, March 5, 1928. Defendant’s motion is based upon the proposition that it was made returnable at too early a date. Sections 30 and 31 of the Act of June 13, 1836, P. L. 578, says: “Every writ used for the commencement of an action shall bear date of the day of the issuing thereof, and shall be made returnable on the first day of the term next succeeding the time at which it shall be issued: Provided, that in the case of a writ of summons, if there shall not be ten days between the issuing thereof and the first day of the term as aforesaid, the writ may be made returnable on the next day preceding the last day of such term, or upon the first day of the second term next after the issuing of the writ.”

“The word ‘between,’ when used in speaking of the period of time ‘between’ two certain days, generally excludes the days designated as the commencement and termination of such period: People v. Hornbeck, 61 N. Y. Supp. 978, 30 Misc. Rep. 212; Kendall v. Kingsley, 120 Mass. 94, 95; Weir v. Thomas, 62 N. W. Repr. 871, 872, 44 Neb. 507, 48 Am. St. Reps. 741:” 1 Words and Phrases, 766.

The word “between” is very generally understood as relating to something which separates two points, places, objects, lines, sentences or ideas. That which is between is not a part of either of the things that it separates. The palings of a fence are between the posts. If the distance between two houses is twenty feet, the distance so measured does not penetrate the side of either house. So, if there be ten days between two events, neither one of the two days can be said to be the day of either event; the space of time between the two is separate of the time of the occurrence of either event.

We accept the conclusions arrived at in the cases of Snyder & Co. v. Finn and Welsh, 6 Dist. R. 191, 18 Pa. C. C. Reps. 594; Steen v. Carlson, 19 Dist. R. 966, and Imes v. Roberts, 25 Dist. R. 380.

The motion is sustained and the writ is quashed, at the cost of the plaintiff.

From M. M. Burke, Shenandoah, Pa.


author: Niles, P. J.,

text:
    O’Brien v. Paul R. Hostetter Company.

      Myers & Myers, of the Cumberland County Bar, and John E. Brenneman, for plaintiff.

      Cochran, Williams & Kain, for defendant.
    Dec. 23, 1927.
   Niles, P. J.,

In this action of trespass plaintiff’s statement was served with the summons on the defendant April 12, 1927. No affidavit of defense was filed within the fifteen days from the date when the statement was served. The case was set down for the first court at which it could be tried, Sept. 12, 1927. Sept. 12th, the first day of the court, defendant, with leave of court, filed an affidavit of defense which denied the ownership or possession of the property through the instrumentality of which the plaintiffs were alleged in their statement to have been negligently injured, and the case continued upon the usual terms. Subsequently, plaintiff’s counsel moved the court to strike off this belated affidavit of defense.

It is urged on behalf of plaintiff that under the Practice Act of 1915, in an action of trespass, no affidavit of defense may be filed after fifteen days from the service of the statement; that, in accordance with section 18, failure to file an affidavit of defense within the required time puts the case at issue and prevents the defendant from denying or offering any evidence at the trial regarding plaintiff’s allegation to the effect that the act complained of was committed by the defendant, or its agents or employees, or the ownership or possession of the instrumentality involved, in accordance with section 13 of the Practice Act, but that such allegations in plaintiff’s statement must be considered as absolutely admitted without the production of any evidence by plaintiff. This proposition comes up for decision now and will be considered just as if it arose upon defendant’s motion, rule granted thereon and answer filed by plaintiff.

Notwithstanding the earnest and learned argument of plaintiff’s counsel, we are not convinced that the Practice Act of 1915 should be so construed as to accomplish the result urged by plaintiff.

The purpose of the Practice Act is to promote a system of pleading to the end that material facts specifically alleged shall be taken as admitted, unless specifically denied by the other party. The affidavit of defense is a pleading and is subject to the provisions of section 21 regarding amendments and new pleadings, as well as the previously existing provisions for amendment and alteration of pleas or defenses on or before the trial of the cause. Upon this record and the circumstances revealed, defendant’s application to amend was made with reasonable promptness and the delay sufficiently excused, and the allowance upon terms did not, in our opinion, violate any of plaintiff’s legal rights or produce injustice to them. On the other hand, refusal of the right to amend would make possible a verdict and judgment against defendant for an injury for which it might be in no way responsible. A defendant is not prohibited from filing an affidavit of defense after fifteen days, and the court has full power, under section 22 of the Practice Act, to extend the time for filing the pleadings: Fuel City Manuf. Co. v. Waynesburg Products Co., 268 Pa. 441. Plaintiff’s counsel endeavors to draw a distinction between the power to extend the time before it has fully elapsed and permission to file after the original period has expired. We do not consider this a substantial distinction.

And now, to wit, Dec. 23, 1927, the rule granted Sept. 12, 1927, upon plaintiff’s petition to strike off defendant’s affidavit of defense is discharged and the prayer of the petition refused.


author: Perrin, J.,

text:
    Tinicum Township v. Roswari.

      Lutz, Ervin, Beeser & Fronefield, for rule.

      T. A. Curran and Taylor, Chadwiek & Weeks, contra.
    Nov. 18, 1927.
   Perrin, J.,

This is a rule to strike off an appeal from a judgment of a justice of the peace, entered on a suit for a penalty.

The judgment was entered on Jan. 31, 1927, and the appeal was allowed by the court on Feb. 18, 1927. On June 22, 1927, rule to show cause why the appeal should not be stricken off was filed.

The question involved in this case is whether, under section 1 of the Act of April 1, 1925, P. L. 98, relating to appeals from summary convictions and suits for penalties, the appeal in suits for penalties must be taken within five days. We are satisfied that such is not the case. The Act of 1925 is silent as to the time within which an appeal in the case of a suit for a penalty must be allowed.

In the present case, the defendant applied to and received from the court leave to appeal within twenty days from the time of the entry of the judgment. The appeal in this case being to the Common Pleas, and the act not fixing any specific time within which the same must be taken, then the time for the taking of the appeal is the same as in any other suit: Sadler on Criminal Procedure, § 772, page 571.

It is contended that the petition for the appeal did not show a legal reason for appeal and failed to show sufficient cause for the appeal. We are well satisfied, however, that the court made no mistake in allowing the appeal, as .sufficient reasons were set forth in the petition for leave.

The proceedings are regular, the appeal properly taken within the time required by law and the rule to show cause why the appeal should not be stricken off is hereby discharged.

From William R. Toal, Media, Pa.


author: Landis, P. J.,

text:
    Gearn v. Pennsylvania Casualty Company.

      J. Andrew Frantz, for plaintiff; Bernard J. Myers, for defendant.
    Oct. 1, 1927.
   Landis, P. J.,

The plaintiff has brought this suit to recover the sum of $637.50. The claim is based upon an insurance policy issued to one Eleanor H. T. Sander, a teacher, dated Feb. 27, 1925. The policy was for $1000 and covered1 loss of life and also limbs, sight or time by accidental means or loss of time by sickness. The insured stipulated in her application that, in the event of death, benefits should be paid to “Margaret,” her sister. This sister seems to be the plaintiff, Margaret S. Gearn, though this fact is not exactly clear. The policy provided for an indemnity for “weekly illness” of “twenty-five dollars,” and this suit is not for the principal sum due in case of death, but it is averred in the statement that the insured became incapacitated by sickness on July 1, 1926, and was continually confined within her home until Jan. 17, 1927, when she died, and that it is for the weekly sums claimed to be due and not paid in her lifetime.

Section 5, part A, of the policy states that “if the insured shall be continuously confined within the house and regularly visited therein, at least once each week, by a licensed and registered physician and be wholly prevented from transacting any and every kind of business by sickness, the company will pay for such confinement after the first seven days, and not exceeding twenty-six consecutive weeks, including the first week, illness indemnity at the rate per week specified above;” and section 11 of the “standard provisions” states that “indemnity for loss of life of the insured is payable to the beneficiary if surviving the insured, and otherwise to the estate of the insured. All other indemnities of this policy are payable to the insured.”

This action was not brought by the administrator of Eleanor H. T. Sander, and whether he made the proper notices and proofs is not now important. It is brought by Margaret S. Gearn. If, however, she is the insured’s sister, the defect in not so averring can be cured by amendment. The difficulty, as I understand the case, is, however, more vital than this and goes to the heart of the action.

Margaret S. Gearn brings this suit as beneficiary. The amount claimed is for weekly benefits which accrued during the life of Eleanor H. T. Sander from continued sickness from July 1, 1926, to Jan. 17, 1927. If, then, as is stipulated in section 11 of the standard provisions of the policy, the indemnity for loss of life only is to go to the beneficiary if surviving, and “all other indemnities . . . are payable to the insured,” it is clear that the plaintiff cannot recover for weekly payments which became due during the life of the insured to the insured. Such sums are recoverable by the administrator of the insured if they are payable to any one.

Conceding, then, that certain weekly payments are due and payable, it must be decided that the plaintiff is not entitled to them. The point of law is, therefore, decided in favor of the defendant, and judgment is now entered in favor of the defendant.

From George Ross Eslxleman, Lancaster, Pa.


text:
    Fawley v. Hessin.

      Wolf, Bloch, Schorr & Solis-Cohen, for plaintiff.

      C. W. Van Artsdalen, for defendant.
    July 23, 1928.
   Martin, P. J.,

Plaintiff agreed to make alterations in a building, situate at 1601 Wallace Street, Philadelphia, owned by the defendant. Plans and specifications accompanied the contract. Plaintiff was to be paid $9935, subject to additions and deductions provided for in the contract.

It was agreed that the work should be done under the direction of J. Warren Meyers, architect. Eighty-five per cent, of the compensation was to be paid within fifteen days after the completion of all the work under the contract and the delivery by the contractor to the owner of a certificate of the architect certifying that the same had been completed, and a full and complete release of liens; and the balance of 15 per cent, to be due and payable by the owner to the contractor within sixty days after the delivery of such certificates by the contractor to the owner.

The contract provided that no alterations should be made in the work except upon written order of the architect; the amount to be paid by the owner and allowed by the contractor by virtue of such alterations to be stated in the order.

Plaintiff performed extra work and labor and supplied extra materials, for which he claimed $1669.01. He was paid $7300 on account, and instituted this suit to recover a balance of $4304.01 claimed to be due.

An affidavit of defense raising questions of law was filed, alleging that the statement of claim failed to aver that the contractor had delivered to the owner a certificate of the architect certifying the completion of the contract, or a release of liens; and a further ground alleged that it did not appear in the statement of claim that the extra work was performed upon the written order of the architect, showing the amount to be paid by the owner.

Plaintiff claims that the owner waived the right to demand the production of the architect’s certificate and release of liens in a letter he sent to plaintiff, dated Dec. 24, 1925, in which he wrote: “In accordance with our understanding, you are to receive $8500 from the settlement of certain mortgages at the Land Title & Trust Company, on account of the amount due you under the contract for alterations to 1601 "Wallace Street, Philadelphia, Pennsylvania, and whatever balance may be due on the contract, plus any adjustments for alterations or omissions, which amount has not yet been settled, shall be paid you within sixty days from the date hereof.”

Plaintiff endorsed at the bottom of this letter, “I hereby accept the above,” and signed his name.

Attached to the statement of claim are copies of correspondence between plaintiff and J. Warren Meyers, which plaintiff claims comply with the requirements of the contract under which he was authorized to perform extra work. Defendant claims that these letters are not in proper form to bind him for extra work under the terms of the contract.

It is not denied that the work called for by the contract and the extra work were completed by plaintiff and accepted by defendant.

The statement of claim alleges that the work was completed on or about Dec. 21, 1925, and that defendant promised to pay plaintiff in the letter of Dec. 24, 1925.

The Act of March 30, 1925, P. L. 84, amending section 2 of the Practice Act of May 14, 1915, P. L. 483, provides that “Every allegation of fact in plaintiff’s statement of claim . . . not denied specifically or by necessary implication in the affidavit of defense . . . shall be taken to be admitted.”

If the case proceeds to trial, plaintiff will be compelled to prove that he complied with the terms of the contract, or that defendant waived the requirement for the production of the architect’s certificate and release of liens, and that the extra work was done under orders that conformed to the requirements of the contract, unless waived by defendant.

“It is error to enter judgment for defendant on points of law raised in an affidavit of defense, unless it appears from the statement of claim itself, ‘as a question of law,’ that plaintiff is not entitled to recover:” Morris & Bailey Steel Co. v. Bank of Pittsburgh, 277 Pa. 81.

“Where, as here, plaintiff’s statement makes a prima facie case, he cannot be turned out of court upon demurrer thereto:” Scranton Axle and Spring Co. v. Scranton Board of Trade, 271 Pa. 6, 9.

“Where a doubt exists as to whether or not summary judgment should be entered, this should be resolved in favor of refusing to enter it:” Rhodes v. Terheyden, 272 Pa. 397.

To enter judgment for defendant on this motion would result in enabling defendant to enjoy the product of plaintiff’s labor and expenditure without compensation.

The case is one in which the controversy may be facilitated by an opportunity for a broader inquiry into the facts than is presented by the bare pleadings : Moy v. Colonial Finance Corp., 279 Pa. 123.

And now, to wit, July 23, 1928, the affidavit, of defense raising questions of law is not sustained, and defendant is given fifteen days to file a defense to the averments of fact in the statement of claim.


author: Van Dusen, J.,

text:
    Van Hook’s Estate.

      William, G. Nixon, for exceptions; William O. Armstrong, contra.
    Oct. 26, 1928.
   Van Dusen, J.,

We need not consider whether the check, by itself, would import consideration; for the claimant undertook to show the consideration. He showed that he nursed his brother devotedly and paid out money for him. But it also appeared that he got other checks from his brother during this time to a considerable amount. On the whole, it cannot be said with the certainty necessary to a successful claim against a decedent’s estate (Gilbraith’s Estate, 270 Pa. 288) that this check was given in payment for these services and expenditures. It appears, therefore, to be without consideration, and the claim was properly rejected.

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: Brown, Jr., J.,

text:
    The Real Estate-Land Title and Trust Co. v. Butler et al.

      Charles I. Thompson and Boyd Lee Spahr (of Ballard, Spahr, Andrews & Ingersoll), for plaintiff.

      Robert T. McCracken (of Roberts & Montgomery), for defendants.
    Oct. 24, 1928.
   Brown, Jr., J.,

This is an action by the Real Estate-Land Title and Trust Company, endorsee of a check in the amount of $20,502, against the makers, J. Russell Butler, Alexander J. McConnell, Charles A. Zubrod and W. J. MeGlinn, as copartners trading as McGlinn & Company. The cheek was drawn to the order of Guy C. Lamson, who endorsed and deposited it in the plaintiff bank. The latter forwarded it to the Fourth Street National Bank for collection, and when it was presented for payment to the West End Trust Company, upon which it was drawn, payment was refused. Thereupon plaintiff brought this suit, alleging that it was a holder of the check in due course, which was denied in the affidavit of defense, wherein it was averred that plaintiff received it only for collection. The verdict being in favor of the plaintiff, the present motion for judgment n. o. v. was filed.

It appears that the payee, Lamson, had a deposit account with the plaintiff bank; that there was a credit balance in his favor as of the close of business on Nov. 19,1925, in the amount of $57,572.27; that on Nov. 20, 1925, he deposited checks totaling $40,391.22, including the defendants’ check, which, with the balance from the previous day, made the total of deposits $97,963.49; and that on the same day plaintiff honored checks previously drawn by him and presented to plaintiff for payment, amounting to $117,707.90. Thus, an overdraft of $19,744.41 resulted. Lamson had also a collateral loan account with the plaintiff on which he owed approximately $99,000, the collateral being assumed to be worth 20 per cent, in excess of the debt and so sufficient to care for an overdraft, which developed not to be the fact upon disposal of the collateral.

Defendants’ check was deposited by Lamson in the plaintiff bank on Nov. 20,1925, about 12 o’clock noon, or shortly before, according to the plaintiff’s witnesses, and a little after noon, according to the defendants’ witnesses. The check left the plaintiff bank and was received by the Fourth Street National Bank before 1.20 in the afternoon of that day. It appears, also, that on that day there were two deliveries of cheeks to plaintiff from the clearing house, one about 8.30 A. M., and the other about 11 A. M., in which were included the checks, totaling $117,707.90, drawn by Lamson on his account with plaintiff; that plaintiff had until 2 P. M. to dishonor any of these checks thus received through the clearing house, and that they were paid. But there was no testimony showing exactly the hour when they were paid.

The jury was instructed, inter a lia, as follows:

“Members of the Jury, the question for you to determine is as to whether or not the plaintiff company honored any or all of these checks drawn on Lamson’s account, that is, any of the amount totaling $117,707.90, upon the faith and credit of this check of the defendants in the amount of $20,502.00. In that connection, you have to consider and determine from the evidence which you have heard as to the time when that check was deposited whether or not the plaintiff extended credit on the faith thereof, that is, whether the checks which were cashed for Lamson were after that check had been received.

“When a bank credits a customer, as Lamson was, with the amount of a check endorsed by him in blank, as it was in this case, deposited in his account, the bank does not, in the absence of a special agreement, from this fact standing alone become a holder of the paper for value. The title to the cheek remains in the depositor, and when that paper is dishonored the bank may charge it back to the depositor without taking the steps necessary to hold him as endorser. The relation arising from such transaction as between the bank and the depositor is that the former becomes the agent of the latter for the purpose of collection.

“It is also the law that when a bank makes advances or gives new credit on the faith of a check or other commercial paper which a customer has deposited for collection and for which he has received credit in his account, it becomes entitled to a lien upon such paper and the proceeds thereof for the amount it has advanced.

“When the plaintiff bank paid checks for Lamson totaling $117,707.90, which reduced the balance below the amount covered by this check for $20,502.00, it is fair to presume that this extension of credit was based upon the state of its account, which included the very check now in question, and it is for you to determine whether, from the evidence or not, this presumption is justified. That is a question for you to decide as to whether or not the defendant’s check went into the account in the plaintiff’s bank before certain of the other checks drawn, totaling some $117,000.00, were paid or honored.”

The foregoing is in accordance with the principles enunciated in National Bank of Phœnixville v. Bonsor, 38 Pa. Superior Ct. 275, 280; Erisman’s Appeal, 1 Pa. Superior Ct. 144, 148; Lightfoot v. Bunnel, 76 Pa. Superior Ct. 468, 472, except that, notwithstanding the presumption that the “extension of credit was based upon the state of its account, which included the very check now in question,” the jury was permitted to determine whether, from the evidence, such presumption was justified, that is, whether or not defendants’ check went into the account in the plaintiff’s bank before the checks were paid or honored. This was favorable to the defendants, in that, there being such a presumption, and, therefore, the burden being upon them to rebut it, the jury was not so instructed.

Defendants contend, however, that evidence that cheeks totaling $117,707.90 came into the plaintiff about 8.30 and 11 o’clock in the morning is not sufficient to show that they were paid on the faith of the defendants’ check, which was not deposited until about noon of that day, and, therefore, the jury had nothing upon which to answer the question put to them for determination as to whether or not plaintiff honored any of the checks upon the faith or credit of defendants’ check. There was testimony, however, that it is the practice or rule of the bank to honor checks on the strength of the balance of the deposits and to examine checks deposited before honoring those which would result in an overdraft, and that the bank had until 2 o’clock to dishonor any checks, and that none was dishonored. Furthermore, there being a presumption that credit was extended based upon the state of the account, the burden was upon the defendants to rebut it and to show that plaintiff did not honor the checks totaling $117,707.90 upon the credit of the check in suit. This burden was not met by them, for there is no evidence that Lamson’s checks were honored before the defendants' check was deposited.

Defendants contend, also, that the plaintiff received the check from Lamson, its depositor, only for collection, relying upon the clearing house rules to that effect, copy of which appeared in Lamson’s bank book. There was testimony, however, that it is the custom in Philadelphia to honor checks drawn by a depositor against uncollected funds within the discretion of the bank, taking into consideration previous conditions of the account, the particular check which is being considered and certain other elements which are not necessary to mention. Although the bank or pass book defines the arrangement between the bank and depositor, to which the defendants were not parties, yet it indicates the conditions under which plaintiff received the defendants’ check, to wit, for collection. Nevertheless, there is no evidence indicating any infirmity attached to defendants’ check when given to Lámson, and none when held by plaintiff, or that the latter had notice of any when it was negotiated to it. “Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value:” Section 24 of the Negotiable Instruments Act of May 16, 1901, P. L. 194. “Hence, when the check was received by plaintiff, it had, as against defendants, at least a prima facie right to recover the full amount of it. Admittedly, this right existed to the extent of a sufficient sum to balance the account:” Mutual Trust Co. v. Parrish, 276 Pa. 422, 425, in which case the makers of a check were sued by the bank in which the payee had deposited the check and overdrawn his account, thus presenting the same situation as in the present case, and not as in Bank of Wesleyville v. Rose, 85 Pa. Superior Ct. 52, where suit was against a depositor. “The plaintiff made out a prima facie case by the presentation of the check with its endorsement and the certificate of protest for non-payment; the burden was, therefore, upon the defendant. The defendant undertook to meet that burden by proving a failure of consideration as between the maker and the drawee of the check, and that the plaintiff was not a holder for value:” National Bank of Phœnixville v. Bonsor, supra, at page 279. But here defendants did not aver failure of consideration between the maker and the payee, and, therefore, there being no proof of such failure, the verdict was proper.

Therefore, defendants’ motion for judgment n. o. v. is dismissed.


author: Searle, P. J.,

text:
    Mandeville v. Mandeville.

      Mumford & Mumford, for plaintiff; A. G. Rutherford, for defendant.
    April 16, 1928.
   Searle, P. J.,

This matter is a rule to strike off appeal from award of arbitrators because of the failure of appellant to pay all costs at the time of appeal.

The case was assumpsit and was so proceeded with that arbitrators were chosen on a rule entered by plaintiff, the case fully heard by them and their award filed on Jan. 10, 1928, finding in favor of the plaintiff in the sum of 8306.80.

Prom this award the plaintiff appealed on Jan. 23, 1928. On Peb. 6, 1928, defendant obtained a rule to show cause why the appeal should not be stricken off for failure of the plaintiff to pay all the eosts of record at the time the appeal was taken. Upon this rule, depositions were taken upon a rule duly served upon plaintiff’s attorney. Neither the plaintiff nor his attorney attended upon the taking of the depositions, and no depositions have been taken by them.

Among the depositions taken appear the following:

“Mr. Rutherford: We offer in evidence Continuance Docket for 1927, page 177, Court of Common Pleas of Wayne County, No. 380, June Term, 1927, particularly the following entry:

“ ‘January 23, 1928, Harry B. Mandeville, by his attorneys, Mumford & Mumford, appeals from the award of arbitrators, and same day bond in the sum of One Hundred Dollars filed.’ ”

Also the following entry of costs taxed: “Prot., $1.50; Prot., $.50; Att’ys, $3.00; Prot., $.25; Prot., $1.00; Prot., $1.00; Sheriff, $3.50; Prot., $1.00; Arbitrators, $12.00; Prot., $1.00; Prot., $.25; Prot., $.50.”

These depositions were taken Feb. 27, 1928. The deputy prothonotary testified that no costs were paid at the time of taking the appeal, though it appears that the item “Prot., $1.50 and $.50” was paid when the suit was brought, and from the undisputed evidence this is the only item of costs paid on or before the appeal was taken.

The rule to strike off the appeal has been argued by the respective counsel, and counsel for defendant filed a brief; counsel for plaintiff filed no brief, and has shown no legal reason why the rule should not be made absolute.

The Arbitration Act of June 16, 1836, P. L. 715, 723, provides that upon appeal, such party, his agent or attorney, shall pay the costs that may have accrued in such action or actions, and provides for appeal within twenty days.

Where a statute fixes a time within which an act must be done, the courts have no power to enlarge it, although it relates to a mere question of practice: Harris v. Mercur, 202 Pa. 313, and other authorities there cited. The same rule is illustrated and applied in Dunmore School District v. Wahlers, 28 Pa. Superior Ct. 39, and in Wingert v. Teitick, 31 Pa. Superior Ct. 187; also, St. Clair Borough v. Souilier, 234 Pa. 27.

The payment of all costs that may have accrued in such suit or action is a condition precedent to the taldng of such appeal: Walter v. Bechtol, 5 Rawle, 228.

This is a case where the plaintiff appealed from the award of arbitrators without paying all of the costs, and the Supreme Court said: “The costs were not paid within the period allowed to perfect the appeal, of which the payment of all the costs taxed is an integral part. Part, but not all, of the costs were paid:” Carr v. McGovern, 66 Pa. 457.

In this case the Supreme Court said the want of payment of costs was an incurable defect. The payment of costs taxed is a condition precedent to a valid appeal.

The negligence or want of knowledge of the officer (prothonotary or prothonotary’s clerk) does not condone the errors of the party in failing to do what the law requires in order to perfect the appeal: Ellison v. Buckley, 42 Pa. 281; Breeden v. Bank, 75 Pitts. L. J. 213 [9 D. & C. 605].

Appeal taken from award of arbitrators was struck off where the plaintiff failed to pay the accrued taxed costs within twenty days after entry of award, as required by Act of June 16, 1836, § 27, P. L. 723 [9 D. & C. 605].

This case is one of the latest, being reported in Monaghan’s Digest of 1927. The cases hold that the costs must not only be paid, but must be paid in cash. The costs were taxed of record and were plainly visible to the plaintiff or his attorney, and, not having been paid as required by the act of assembly, the appeal must be quashed and stricken off.

Now, April 18, 1928, the rule granted on Feb. 6, 1928, to show cause why the appeal from the award of arbitrators should not be stricken off is made absolute, and the said appeal is quashed and stricken off.