figure which would yield a good business profit; and that, taking into account all these conditions, the well was of great value. But the conditions upon which these estimates were based did not all exist. There was no manufacturing plant to convert the water into salt. Its establishment would have required the investment of a large amount of capital, and whether or not any profit could have been made in the business depended upon many contingencies. Obviously, any estimate of the value of the well, based upon the possible profits arising out of the business of manufacturing its products into an article of merchandise, would require the consideration of elements altogether too remote and speculative to be admissible in the issue being tried in this case. The effect of such an estimate could only be to leave an erroneous impression upon the minds of the jury, and to give them an exaggerated idea of the value of the well. Its tendency was to emphasize unduly that which constituted only an element in the result they were seeking, which was to ascertain the value of the property as a whole.

It is difficult, at best, in such cases to prevent the separate valuation of different items, and the making up of a verdict by means of adding them together. But the rule is well settled that the jury have no right to allow damages for distinct items, and reach a verdict in that way. This rule was clearly recognized by the learned trial judge, and was stated to the jury in the charge. But the zeal of counsel for the plaintiffs in the presentation of evidence led him to introduce testimony which went far beyond the line of competency in fixing the value of the property as it was at the time of its taking. That was the question in the case; not its value as it might have been, improved as a manufacturing plant. In so far as the salt-water well constituted an element of value, it was merely as contributing a certain volume of salt water. Whether or not this product, as such, had any market value, does not appear from the evidence. No use had been made of it for a period of some nine years, and there was nothing to show what its value was, except in connection with the erection of an evaporating plant, and its operation subject to the contingencies of business. It is suggested in the argument of appellee that the proof of the value of the salt-water well in this case is to be likened to that of an oil well. Be it so. The market value of an oil well is not determined by evidence of the profits which can be made from the product of the well by means of a refinery erected upon the spot and operated with successful business skill. Its market value is its selling value as a well. In the present case the market value of the salt-water well, if it were shown to have had any, at the time of the taking, would be one of the elements entering into the value of the property as a whole. If the well was destroyed, its value would al

so be one of the elements of depreciation, to be considered in ascertaining the loss in the selling value of the whole property caused by the entry of the defendant company. We are convinced that the first assignment of error should be sustained.

The learned judge, in his charge, also instructed the jury as a matter of law to consider the two pieces as a whole in assessing the damages, and this instruction is by the seventh assignment alleged to be error. It does not appear from the evidence that the two lots have ever been used as a single tract. They were separated, for all practical purposes, at the rear by a stream with such high and steep banks as to forbid passage except by a bridge; and such a bridge was not built. The lot fronting upon Main street was not touched or interfered with in any physical way by the defendant. It would appear from the evidence that the possession of the Main street lot would, if the properties were connected by a bridge, add to the value of the Steuben street property; but it is difficult to see how the Main street lot could be affected by the taking of a part of the Steuben street lot. Certainly such a result was not so clearly manifest as to justify the court in saying as a matter of law that the two lots were to be regarded as one in the assessment of the damages for the right of way, which passed over one only. The rule is as stated in Potts v. Penna. S. V. R. R. Co., 119 Pa. 278, 13 Atl. 291, 4 Am. St. Rep. 646, and reiterated in Rudolph v. Penna. S. V. R. R. Co., 186 Pa. 541, 40 Atl. 1083, 47 L. R. A. 782. "In order that two properties having no physical connection may be regarded as one in the assessment of damages for right of way, they must be so inseparably connected in the use to which they are applied as that the injury or destruction of one must necessarily and permanently injure the other." As the evidence now stands, it is questionable whether there was sufficient even to submit to the jury within the rule just quoted. At any rate, there was not enough to support a binding instruction to regard the two lots as one property.

The judgment is reversed, and a venire facias de novo awarded.

(207 Pa. 614)

PIATT v. SEIF et al. (Supreme Court of Pennsylvania. Jan. 4, 1904.)

SPECIFIC PERFORMANCE-EVIDENCE-STATUTE OF FRAUDS.

1. A bill against the executors and devisees of a testator asked an accounting of money expended in purchasing and improving property for a saloon, and specific performance of an agreement to convey the same to plaintiff. The evidence showed that decedent purchased the property for plaintiff, but took title in the name of an agent; that plaintiff went into possession and expended large sums in improvements, and during several years occupied the premises, and built up a large business. Held, that he was entitled to specific performance.

2. Where plaintiff procured a person to purchase real estate, and such party took title in the name of the agent, and permitted plaintiff to enter into possession and to make valuable improvements, a bill for specific performance was not within the statute of frauds.

Appeal from Court of Common Pleas, Allegheny County.

Bill by James W. Piatt against William H. Seif and others. From a decree for plaintiff, defendants appeal. Affirmed.

The following is the opinion of Shafer, J., in the court below:

"The bill is against the executors and devisees of a testator for an account of payments and expenses incurred in purchasing and improving property therein described, and specific performance of an agreement for a conveyance of that property to the plaintiff upon payment of the amount found to be due.

"Findings of Fact.

“(1) In the winter of 1897-98 the plaintiff was the keeper of a public house in the city of Pittsburg, and learned that the premises occupied by him as tenant in conducting his business were to be torn down the 1st of April, 1898, and it became necessary for him to find another location.

"(2) C. L. Magee, the defendants' testator, was at this time a member of the state Senate, and a man of very considerable wealth, and of well-known generous disposition, and was a friend of the plaintiff's, who, as he frequently afterward said, had been friendly and helpful to him politically and otherwise, the plaintiff being at the time a member of the city council. Knowing of the plaintiff's need of a new place to carry on his business, Mr. Magee advised him to buy a place rather than rent one, and, knowing that Piatt had only about seven or eight thousand dollars, which would be entirely insufficient for the purchase of a place for him in the locality desired, he told Piatt to look up a place, and that he would assist him. The lot in question, on Fifth avenue, in the city of Pittsburg, was at that time up for judicial sale, and Mr. Piatt looked at the property, and made inquiries as to the price at which it could probably be purchased, and reported what he had found to Mr. Magee. They thereupon inspected the property together, and agreed it would be a proper place for Piatt's business, and Mr. Magee agreed with Piatt to buy the property for him, and let him repay to him the cost of it, with interest, when he could, when it was to be conveyed to Piatt, Mr. Magee expressing the opinion that Piatt would be able to clear a considerable sum of money from the business each year, and that the property would greatly increase in value.

"(3) Mr. Magee thereupon directed Peter Shields, real estate agent, to buy the property

at the sale, which was done February 8, 1898, for the price of $75,000, paid by Mr. Magee, and a deed made to Shields, who, by a deed dated the next day, conveyed the same to Mr. Magee. These deeds were placed on record, but by an arrangement with the assessors the land was kept in Shields's name on the assessment books, Mr. Magee stating, as a reason, that he did not wish to figure as owning property used for the sale of liquors, or derive any profit from such traffic; and that if assessed in Piatt's name it would attract attention that a member of the city council, known to have no great amount of money, should be able to buy such a property.

"(4) When the property was bought it was Piatt's intention to remodel the building then standing upon the property, and fit it for the purposes of his business; but Mr. Magee advised against this course, and said that he would build a building upon it, and that Piatt could pay for it along with the price of the land. Mr. Magee thereupon employed an architect, and directed him to make plans for a building to suit Piatt, and the architect then drew such plans as Piatt wished, and submitted them to Mr. Magee, along with Piatt, for his advice and approval. Piatt supervised the erection of the building, and was present from day to day while it was being erected, and the building was completed about July 22, 1898, at a cost of $32,195.20, of which Piatt paid $900 and the remainder was paid by Magee.

"(5) When the building was completed, or, perhaps, before its final completion, Mr. Piatt, with the knowledge and consent of Mr. Magee, and under the arrangement above stated, went into possession of the property in question, and ever since has had open and exclusive possession of it. After taking possession, and before the death of Mr. Magee, the plaintiff put in a considerable number of improvements and fixtures, costing about $6,000, a part of which were such as a tenant might ordinarily make, and part, such as iron shutters, sewer from the back cellar, steam plant, elevator, and other items, amounting to a considerable sum, which appear to have been permanent improvements, and these were put in with the knowledge of Mr. Magee. At the same time the plaintiff expended some $10,000 in fitting up and furnishing the premises for his business, in a style in keeping with its location.

"(6) From the time his occupancy began until the present, the plaintiff has given his personal attention to his business upon these premises, and has built up a large and increasing business, and acquired in connection with the premises a valuable good will.

"(7) Some time in the year 1898 Mr. Magee fell ill, and his illness continued until his death, which occurred March 8, 1901. His decline was gradual, and he was, a large part of the time, absent from Pittsburg. Up until a short time before his death he fully ex

the naphtha on board of the train exploded, injuring plaintiff, evidence held to sustain verdict for plaintiff.

Appeal from Court of Common Pleas, Allegheny County.

Action by Edward A. Gudfelder against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, and POTTER, JJ.

George B. Gordon, for appellant. J. L. Ritchey, David S. McCann, C. A. O'Brien, and Charles W. Ashley, for appellee.

MESTREZAT, J. The defendant company's freightyard known as the "Sheraden Yard" is located in the valley of Cork's run, about 4 miles west of its passenger station in the city of Pittsburg. The yard is a gravity yard, with a 1 per cent. descending grade to the east, and is upwards of 4,000 feet long, and has an average width of 500 feet. It is the eastern terminus of the company's freight business. Here cars are delivered to it by its eastern, southern, and northern connecting roads, and trains are made up for the transportation of freight to the West. Cork's run discharged its waters into the Ohio river, and drained the land now occupied by the freightyard. On the construction of the yard, the company replaced the run by a large culvert or sewer of various dimensions; being 6 feet in diameter at the beginning, and 13 feet by 17 feet at its mouth. The mouth or eastern end of the culvert was in the open space of the run, about 200 feet from the river, and about 2,800 feet from its inlet in the defendant company's freightyard. Midway between the river and the end of the culvert the run was crossed by a bridge, a part of a street known as "River Avenue," in the borough of Esplen. There are several catch-basins or sewer drops in the freightyard, which conduct the surface water to the culvert, and at various points there are man holes and branch sewers opening into the culvert. At the inlet or western end of the sewer, it is about 3 feet, and at its mouth or western end about 80 feet, below the surface. The bottom of the sewer is about 100 feet lower at its mouth than at the inlet or first catch-basin. On the afternoon of May 12, 1902, the defendant's servants were making up a freight train in the Sheraden yard. There were 14 tank cars in the yard, filled with naphtha, which were to be a part of the train. The crew began to make up the train by first dropping a caboose and 9 cars on track No. 3. They next attempted to put the tank cars in position in the train, and, in dropping them by gravity down a descending grade to their place, a collision occurred between the two rear cars, resulting in two holes being pierced in the front, and near the bottom, of the rear naphtha car.

This car contained over 7,000 gallons of naphtha, the most of which ran out on the ground, and a large quantity of it into a catch-basin 30 to 60 feet east of the broken car. This was about 4:30 in the afternoon. A few minutes after the collision, and after the greater portion of the naphtha had flowed out of the car, the draft of tank cars were drawn west on the track, the naphtha splashing or running out as the cars were moving; and, in passing a switch light, which had been previously lighted, and which was about 500 feet west of the catch-basin, the naphtha ignited. The flame of this fire followed the course of the flowing naphtha towards and into the catch-basin near the place of the collision. Various small explosions followed in rapid succession in the sewer after the flame had entered the basin, and very shortly thereafter a violent explosion took place at the mouth of the culvert, which injured the plaintiff, who was standing on the River Avenue Bridge. This action was brought to recover damages for these injuries. The court instructed the jury as follows: "In order that the plaintiff may recover, you must be satisfied that the introduction of that fire through the sewer drop in the yards was through the negligence of the defendant company, and that that fire was carried through the sewer, and that it produced the explosion that injured this plaintiff. You must not only be satisfied of that, but you must be satisfied that this was the natural and probable consequence of the negligent act." The verdict was for the plaintiff, subject to the question of law reserved, "Whether there is any evidence in the case that the injuries of plaintiff were the proximate result of defendant's negligence." Subsequently the court entered judgment on the verdict in favor of the plaintiff, and we have this appeal by the defendant company.

The question of the defendant company's negligence was settled against it by the verdict, and is not raised here. The learned counsel for the defendant, in support of their appeal, maintain that the plaintiff's injuries were so remote as to preclude a recovery for the damages he sustained, and that the question, under the facts of this case, was one of law, for the court, and not of fact, for the jury.

The application of the maxim, "Causa pròxima et non remota spectatur," has been attended with some difficulty, and an examination of the decisions in the different states and by the courts of the United States shows that they have not at all times been entirely uniform on the subject. We do not deem it necessary, in disposing of the questions raised here, to review or discuss the numerous authorities cited in the elaborate briefs of counsel. It will be sufficient to refer to the principles announced in a few of our own cases. What is the proximate and what the remote cause of an injury has frequently been before this court, and, while there has