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Pa.)

NORTH MOUNTAIN WATER SUPPLY CO. V. TROXELL

157

(232 Pa. 155)

the learned judge, was "simply to permit the NORTH MOUNTAIN WATER SUPPLY CO. flow from the lake into the creek, of water V. TROXELL et al.

now held back by the dam, which without (Supreme Court of Pennsylvania. May 23, the dam would long ago have gone down the 1911.)

creek to be used or wasted." The court furINJUNCTION ($ 176*)-SCOPE OF RELIEF-WA-ther said in its opinion in continuing the preTER SUPPLY.

Where, at the suit of a water company in liminary injunction that “we decide the matwhich it alleges a great scarcity of water, a ter at the present stage largely upon the pubpreliminary injunction is granted compelling lic interest involved, and expressly upon the the opening of a dam so that the water of a understanding that the private right to claim lake may be released into the stream below to damages shall not be prejudiced;" and the a certain amount, the court cannot in its final decree after the emergency requiring the pre- decree continuing the injunction directing the liminary injunction had passed direct that it release of 3,000,000 gallons of water provided stand in force to give similar relief whenever a that "the release of water shall be permitted similar emergency shall arise, especially where there is no prayer in the

bill 'for such a decree only for such time and to such extent as the [Ed. Note.-For other cases, see Injunction, present emergency and scarcity of water conDec. Dig. § 176.*]

tinues, subject to termination sooner upon

application and cause shown at any time.” Appeal from Court of Common Pleas, Lu- The final decree entered October 6, 1909, was zerne County.

as follows: "That the preliminary injunction Bill by the North Mountain Water Supply was properly granted on September 19, 1908, Company against E. R. Troxell and others and continued on September 28, 1909, upon for an injunction. From a decree for plain the conditions then prescribed, and in view tiff, defendants appeal. Reversed, and in- of the emergency then existing; and while junction dissolved.

such emergency has now passed away, the Argued before FELL, C. J., and MESTRE- injunction will stand in force to give similar ZAT, POTTER, ELKIN, and MOSCHZISK-relief whenever a similar emergency shall ER, JJ.

arise, each party to pay just the costs which J. B. Woodward and W. S. McLean, for ap- they have respectively incurred." pellants. Paul Bedford, George R. Bedford, The correctness of the decree awarding and Henry W. Palmer, for appellee.

the preliminary injunction is not now before

us, and need not be determined. It was preMESTREZAT, J. We think the learned sented for our consideration in North Mouncourt erred in entering a final decree that tain Water Supply Company v. Troxell, 223 “the (preliminary) injunction should stand Pa. 315, 72 Atl. 621, and, for the reasons statin force to give similar relief whenever a ed in the opinion, the decree was affirmed. similar emergency shall arise." There was The merits of the case were not considered. no prayer in the bill for such relief, and the The final decree proper is therefore that "the emergency, the only ground for issuing the injunction will stand in force to give similar preliminary injunction, having passed, the bill relief whenever a similar emergency shall should have been dismissed.

arise, each party to pay just the cost which The plaintiff filed the bill on September they have respectively incurred.” This de19, 1908, averring, inter alia, that by reason cree is manifestly erroneous. The prayer of of the extraordinary, prolonged, and unprec- the bill was granted and the decree continuedented drouth, extending over a period of ing the injunction provided that “the release some three months, the streams tributary to of water shall be permitted only for such Harvey's Lake had practically dried up, and, time and to such extent as the present emerunless plaintiff company could immediately gency and scarcity of water continues.” The make use of the waters of Harvey's Lake, defendants having opened the gates of the substantially equivalent to the outflow when dam and the avowed purpose of the injuncthe dam was closed on June 12th, its con- tion having been accomplished by permitting sumers in and about the borough of Nanti. “the flow from the lake into the creek of wacoke would within five days be without water now held back by the dam, which withter, "and there is no other way by which the out the dam would long ago have gone down lack could be supplied." The bill prayed the creek to be used or wasted,” and the that, owing to the éxigencies of the case, an emergency and scarcity of water assigned as injunction might issue, commanding the de- the reason for granting the preliminary infendants to open, or permit to be opened, the junction having passed, it is apparent that gates of the dam at the outlet of Harvey's | the final decree should not have continued the Lake to allow the outflow of water from said injunction. We did not pass on the merits lake equivalent to 3,000,000 gallons each day, of the preliminary injunction when the case and that the defendants be enjoined from was here before, and, if "a similar emergency preventing the outflow of that quantity of shall arise" hereafter and plaintiff again atwater from the lake. A preliminary injunc tempts to procure an injunction for a like tion was issued as prayed for. The effect of purpose, this record should not deprive the the injunction, as stated in the opinion of defendants of an opportunity to have the

“For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

rights of the parties judicially determined. no lien should be filed against the contenThe trial judge concedes that in continuing plated building, either by itself or by any the preliminary injunction he decided the subcontractor. Jonker D. Lit was the origmatter "largely upon the public interest in- inal owner of the ground, and it was with volved, and expressly upon the understand him upon August 8, 1907, that Moore & Co. ing that the private right to claim damages entered into a written contract for the conshall not be prejudiced.” It appearing that struction of the building. Subsequently the at the date of the final decree there was no Locust Realty Company was incorporated, occasion for issuing or continuing the injunc- and by deed dated October 8, 1907, Lit contion as prayed for in the bill, the decree was veyed the premises on which the building in erroneous, and therefore in entering the final question was in course of construction, to decree there was no necessity for determin- the Locust Realty Company, and ing the rights of the parties to the waters of time assigned to the Realty Company his inthe lake and creek or the right of the defend- terest in the contract with Moore & Co. The ants to maintain the dam. The decision of contract between the plaintiffs in this case those questions may well await an occasion and Moore & Co. was made January 2, 1908, when their judicial ascertainment in an ap- and the first materials were delivered by propriate action is required to determine the them on January 16th. Upon the trial plainissue between the parties.

tiffs contended that they were not bound by The decree is reversed and the injunction the stipulation against liens in the contract is dissolved, each party to pay the costs between Lit and Moore & Co., but that there which they respectively incurred in the court was a later verbal contract between the latbelow, and the appellee to pay the costs of ter and the Locust Realty Company under this appeal.

which materials were furnished by them. The trial judge held that the plaintiffs were

not entitled to recover, and directed a verdict (232 Pa. 123) FELIN et al. v. LOCUST REALTY CO., Inc., conclusion and filed no opinion. In Pennock

for defendants. He gave no reason for his et al.

v. Realty Company, 224 Pa. 437, 73 Atl. 930. (Supreme Court of Pennsylvania. May 23, the validity of a mechanic's lien filed by an1911.)

other subcontractor in the same operation as MECHANICS' LIENS (8 103*) — STIPULATION that which is here in question was involved. AGAINST LIENS-SUBCONTRACTORS.

A subcontractor is bound by stipulation in It was there held that the subcontractor contract between the owner and contractor was bound by the stipulation against liens against liens, and is not relieved because the contained in the original contract, and that property was conveyed during the construction he was not relieved by the fact that the of the building, and before the contract between himself and the contractor was made, nor be- property had been conveyed to another party cause the plans submitted to him showed the during the construction of the building and name of the new owner, where the contract was before the contract with the subcontractor indexed in the prothonotary's office in the name was made. Our Brother Elkin, speaking for of the contractor, as provided by Act June 4, the court, there said: “In the case at bar 1901 (P. L. 140) § 18.

[Ed. Note.--For other cases, see Mechanics' there was no new contract. The building Liens, Cent. Dig. $ 135; Dec. Dig. $ 103.*] was erected from the beginning to completion

Appeal from Court of Common Pleas, Phil- under the original contract. The rights and adelphia County.

duties of the parties were fixed by that conAction by Charles F. Felin and others, nished under that contract. The notice as to

tract. The materials and labor were furtrading as Charles F. Felin & Co., against the waiver of liens filed of record bound erthe Locust Realty Company, Incorporated, ery one who furnished materials or labor and others. Judgment for defendants, and

under that contract." plaintiffs appeal. Affirmed.

In the present case, unless there was eviArgued before FELL, C. J., and MESTRE-dence of a new contract sufficient to be subZAT, POTTER, STEWART, and MOSCHI mitted to the jury, the trial judge was right ZISKER, JJ.

in giving binding instructions for the defendWayne P. Rambo and Ormond Rambo, for ants. It is not suggested that there was a appellants. Preston K. Erdman and Charles new express contract; but it is argued that L. Lockwood, for appellee Locust Realty one may be inferred from the circumstances. Co. D. Howard Evans and Henry P. Brown, We can see nothing in the evidence in this for appellee Moore & Co..

case to distinguish it upon its facts from the

principle upon which the decision in PenPOTTER, J. In this action, which was nock v. Realty Company, supra, was based. a scire facias upon mechanic's lien, the only It appears from the undisputed evidence defense set up was the fact that the con- that the building was completed in accordtractor, Moore & Co., a corporation, by its ance with the terms, and for the price agreed agreement duly executed and filed in the of- upon, in the original contract with Lit. fice of the prothonotary, had stipulated that | Counsel for appellants urge that in the plans

Pa.)

HUEY V. CHRIST

159

and specifications submitted to them the “The plaintiff claims $19,604.10 of the debuildings were described as the property of fendant. It is conceded that the defense set the Locust Realty Company, and it is sug- up is good to the extent of $13,713.28. This gested that, if the plaintiffs had examined last-mentioned amount is made up of $1,851.the mechanic's lien docket, they would have 78, which it is averred has been paid by the found no contract with that company on file defendant on behalf of the plaintiff in satisor indexed in its name. But in section 18 of faction of sundry bills enumerated in a schedthe act of June 4, 1901 (P. L. 440), it is pro- ule annexed to the affidavit of defense, and vided that “the prothonotary shall enter it of $11,851.60, which constitutes half of the (the contract) in the judgment index in the sum paid by the defendant in satisfaction of name of the contractor," in order to bind the debt secured to the Cosmos Building & subcontractors. Appellants, as subcontract- Loan Association by a mortgage on No. 1209 ors, made their contract with Moore & Co., Market Street, Philadelphia. Against the rethe original contractor, and were bound to mainder of the plaintiff's demand, viz., $5,search against it. If they had done so, they 891.12, the defendant sets up by way of dewould have found the contract for the erec-fense counterclaims aggregating $11,521.17, tion of the building upon which they were which may be itemized as follows: (1) Inasked to estimate; and, further, that it con- terest on half of the amounts advanced by tained the stipulation that no liens should defendant for interest, dues, etc., on the Cosbe filed against the property.

mos Building & Loan Association mortgage It becomes unnecessary to consider the secured on No. 1209 Market street, $4,131.48; question of the constitutionality of the stat (2) half of the amount advanced by the deute, which was raised by counsel for the fendant for premiums on fire insurance polidefendants. From the discussions in the cies pledged to holders of the mortgages seopinions of this court in Vulcanite Portland cured on No. 1209 Market street, $1,934.75; Cement Co. v. Allison, 220 Pa. 382, 69 Atl. (3) interest on half of the amount advanced 855, and in Taylor Lumber Co. v. Carnegie by the defendant for said insurance premiInstitute, 225 Pa. 486, 74 Atl. 357, it appears, ums, $301.89; (4) half of amounts advanced in substance, that the mechanic's lien act of for taxes, interest, and in reduction of the June 4, 1901, in so far as it is not clearly mortgage debt on Cape May lots, $2,539.12; divergent from, and an advance upon, the (5) interest on half of the said advances on old law, is valid and must be sustained. It Cape May lots, $513.93; (6) dividends on 1242 cannot be fairly contended in the present shares of the stock of the Philadelphia Rye case that the lien under consideration falls

Whisky Distilling Company collected by under any of the provisions of the statute

plaintiff, $2,078. which change or add to the mechanic's lien

“Without going into a discussion of the law, as it was prior to 1901. The assignments of error are overruled, general subject of the right of a partner or

a tenant in common to insure the property and the judgment is affirmed.

in which he is interested, and demand from

his copartner or cotenant reimbursement to (232 Pa. 131)

the extent of the latter's proportionate part HUEY v. CHRIST.

of the outlay, it is sufficient to say that in

our opinion the right of the defendant to in(Supreme Court of Pennsylvania. May 23, 1911.)

sure No. 1209 Market street at the common

expense of the plaintiff and himself is quite PARTNERSHIP (8 301*)-ACCOUNTING-RIGHTS OF SURVIVING PARTNER.

clear. When Mr. Huey died, the property In accounting between the administrator of was subject to the payment of two mortthe deceased partner and the surviving partner, gage debts. The bonds which had been given the latter is entitled to credit for money paid to the mortgagees bound both him and the dein renewal of insurance policies on properties mortgaged in securing the joint bond of the fendant, and provided that they should keep partners, for payment of taxes, interest on the the property insured in a specified amount mortgage, and payments in reduction thereof, for the benefit of the mortgagees. The failand to interest on such advances. [Ed. Note: For other cases, see Partnership, condition would have resulted in a demand

ure of the surviving obligor to perform this Cent. Dig. $$ 701, 702; Dec. Dig. § 304.*]

for the repayment of the principal of the Appeal from Court of Common Pleas, Phil-mortgage debts, and, in default thereof, the adelphia County.

foreclosure of the mortgages. Had Mr. Huey Action by Arthur T. Huey, administrator lived, there can be no doubt that the defendof the estate of William H. Huey, against ant might have protected their joint bond by Amos H. Christ. From an order discharg- performing its condition, and would have ing rule for judgment for want of a suffi- had the right, had he done so, to call on his cient affidavit of defense, plaintiff appeals. co-obligor for the return of half of his outAffirmed.

lay in the matter. The death of Mr. Huey Audenried, J., filed the following opinion did not deprive the defendant of that right. in the court below:

Moreover, the agreement made on April 28,

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

1903, between the various parties interested interest, insurance premiums and mortgage in No. 1209 Market street, contemplated the debts. This requires no extended discussion, continuance of the loans secured thereon by As pointed out above, the defendant had existing mortgages. This could not have the right to make these payments. Half of been effected except by the renewal from them were for the benefit of the estate of his time to time of the fire insurance policies deceased partner, now represented by the pledged to secure these loans. It was there plaintiff. The general rule is that on money fore absolutely essential to the carrying out advanced for the use of another interest at of the purposes of that agreement that the the lawful rate is payable from the time insurance should be kept alive, and we think when the advance is made. A contract to that by necessary implication the defendant pay interest is in such case implied by the was authorized to do so at the expense of law. Sims v. Willing, 8 Serg. & R. 103; Harthe plaintiff to the extent of one-half of its ris v. Mercur, 202 Pa. 318, 51 Atl. 971. This cost.

rule was not questioned by the Supreme "The lots at Cape May, N. J., formed orig. Court in the case of Guthrie v. Baton, 227 inally part of the assets of the firm of Huey Pa. 339, 76 Atl. 71, cited by the plaintiff. & Christ. They were expressly excluded all that was decided in that case was that from the purchase which the defendant made under the agreement then under consideraof certain of the assets of that firm, and tion interest could not be included in the continued to be copartnership property. It computation of the 'original cost of certain was the right of the defendant, as surviving land in which the parties had been dealing. partner, to manage and dispose of the re- There is nothing in the agreement of April maining assets of the firm, and for one-half 28, 1903, that excludes from the operation of of his necessary expenditures in preserving the general rule above laid down any of the the common property pending sale he has a items of outlay on which the defendant right to reimbursement against the plain-claims interest. tiff, as administrator of his deceased part

"We are of opinion that, with the excepner. The necessity of the expenditures made tion of the sixth, all of the counterclaims by him for the payment of taxes and inter-above enumerated constitute valid defenses est cannot be questioned ; nor have we any to the plaintiff's claim, and that since their doubt, under the facts stated by the affidavit amount exceeds the sum of $5,891.12, for of defense, that the payment made by the which judgment is asked, the plaintiff's rules defendant in reduction of the mortgage in- must be discharged.” debtedness charged on this property was

Argued before FELL, C. J., and MESTREequally necessary. There is nothing in the ZAT, POTTER, STEWART, and MOSCHfifth clause in the agreement of April 28, | ZISKER, JJ. 1903, to justify the contention that the defendant may not claim reimbursement fo Maurice Bower Saul, for appellant. Thos. his outlays in this behalf before a sale o

D. McGlathery and H. Le Grand Ensign, for the Cape May lots has been effected.

appellee. "The only remaining question relates to the defendant's counterclaims for interes: PER CURIAM. The order of the court on his advances made for the preservation of discharging the rule for judgment is affirmed the partnership properties in the payment o | on the opinion of Judge Audenreid.

Vt.)

FRAZIER V. W. H. H. SLACK & BRO.

161

(85 Vt. 160)

Exceptions from Windsor County Court; FRAZIER v. W. H. H. SLACK & BRO. Willard W. Miles, Judge.

Assumpsit by trustee process under the (Supreme Court of Vermont. Windsor. Oct. 10, 1911.)

statute for the collection of taxes by William

H. Frazier against W. H. H. Slack & Bro. 1. TAXATION (8204*)-EXEMPTION STATUTES Heard on an agreed statement of facts. -CONSTRUCTION.

Exemptions from taxation are strictly con- Judgment for plaintiff, and both plaintiff strued.

and defendants except. Affirmed. [Ed. Note.-For other cases, see Taxation, Argued before ROWELL, C. J., and MUNCent. Dig. $$ 322–346; Dec. Dig. § 204.*]

SON, WATSON, HASELTON, and POW2. STATUTES ($ 245*)—CONSTRUCTION.

ERS, JJ. A statute classifying property for purposes of taxation, enacted to secure the direct pro

Fred C. Davis and Edward R. Buck, for duction of state revenue, ought to be liberally plaintiff. Herbert H. Blanchard, Herbert G. construed.

Tupper, and Edward B. Flinn, for defend[Ed. Note. For other cases, see Statutes, ants. Cent. Dig. f 326; Dec. Dig. $ 245.*]

MUNSON, J. The plaintiff sues as col. 8. TAXATION_($ 231*)–PROPERTY SUBJECT TO lector of the town of Springfield to recover GENERAL TAXATION-RAILROAD PROPERTY.

Under P. S. 706, 707, 797, providing for taxes assessed against the defendants on the the taxation of property acquired, constructed, list of 1908, on property leased by the de or used for railroad purposes, and declaring that fendants to the Springfield Electric Railway real and personal estate used in operating a railroad shall not be set out in the grand list, Company for 99 years, which is claimed to property leased by an electric railroad company have been exempt from general taxation as for 99 years, and used exclusively in its business property belonging to said railway company and in the operation of its road, is not subject and acquired and used for railroad business to general taxation, though the company may under the lease use the property for other than and purposes. P. S. 706, 707, 797. The proprailroad purposes, and though it does not show erty in question is set in the list in two parthat it does not intend to put the property to cels, designated as “power house, lot and other uses in the future.

building," and "house lot and building.” The [Ed. Note.-For other cases, see Taxation, defendants concede that the dwelling house Dec. Dig. § 231.*]

is taxable, if properly listed. It is agreed 4. TAXATION ($ 231*)-RAILROAD PROPERTY.

Where property 'leased to an electric rail- that the property described as power house, road company for 99 years is used exclusively in lot and building has been used "for developthe operation of its road partly within and part-ing and furnishing power, light and heat by ly without the state, the method for determin- the Springfield Electric Railway Company ing for taxation the value of the property on the basis of its use in the state is that prescrib- | in operating its railroad, and in and about ed by P. S. 797, and the fact that the property its railroad business, and for no other puris used partly within and partly without the

pose." state does not make it subject to general taxation.

[1, 2] The plaintiff does not question but [Ed. Note.--For other cases, see Taxation, that this is property which “belongs" to the Dec. Dig. § 231.*]

railway company within the meaning of the 5. TAXATION ($ 839*)-VALUATION-QUADREN

statute. His claim is that the words "used NIAL VALUATION.

for railroad business or purposes” ought not Under P. S. 547, 555, 561, directing how to be construed to include it. He likens the the tax list shall be made when an inventory, is water power and its accessories to the wood properly filled out and returned, and providing for doubling an ascertained value when a tax- lots or coal mines which furnish the fuel payer willfully omits to make an inventory, or which produces the steam that affords the to answer any interrogatory therein, the right motive power of a steam railway, and supto double the amount of an ascertained value ports his claim by a reference to Vermont exists only where the failure of a taxpayer to return an inventory or to answer an interroga- Central Railroad Co. v. Burlington, 28 Vt. tory therein is willful, and where the failure is 193, where the court distinguished between not willful the quadrennial appraisal is prop- land which the company was authorized to erly referred to to determine the valuation. [Ed. Note.-For other cases, see Taxation, chise and land purchased for convenience or

take as essential to the exercise of its franDec. Dig. $ 839.*] 6. TAXATION ($_363*,--PRESUMPTIONS — PER- It is not necessary to inquire as to the just

profit, and held that the latter was taxable. FORMANCE OF STATUTORY DUTIES.

In the absence of any finding on the sub-ness of the comparison drawn by the plainject, the court will presume that listers, adopt-| tiff. In the case cited there was a charter ing the quadrennial valuation in determining exemption from all taxation, and it is well the valuation of property for taxation, found that the owner's failure to include the property settled that exemptions from taxation are in his inventory was not willful, so that the to be strictly construed. In re Hickok's Esright to double the ascertained value, given by tate, 78 Vt. 259, 62 Atl. 724; Force v. Delta, P. S. 561, for the willful failure to make an etc., Land Co., 164 U. S. 662, 17 Sup. Ct. 230, inventory, did not exist.

[Ed. Note: -For other cases, see Taxation, 41 L. Ed. 590. Here there is no exemption Dec. Lig. § 353.*]

from taxation, but a classification for the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

81 A.-11

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