not established by sufficient evidence. Now all of these facts certainly tend to prove that Willard lost his life by falling accidentally into this open, unprotected pit. ** The natural instinct which leads men in their normal senses to avoid injury and preserve life is an element of evidence. In all questions touching the conduct of men, motives, feeling, and natural instincts are allowed to have their weight, and to constitute evidence for the consideration of courts and juries. Adding these to the circumstances of this case, we cannot say that the evidence was insufficient to go to the jury." Next, in Scranton v. Dean, 2 Wkly. Notes Cas. 467, "the body of Dean was found below a bridge along the side of which there was no fence; there being no evidence of the manner or circumstances of his death. Held, that the presumption of law is, in the absence of proof to the contrary, that the deceased exercised ordinary care." We there said: "The strain of the case * fell upon the manner of the accident, leaving the question one of probability whether Dean fell over the wall or abutment by accident, and whether he contributed to the fall by any negligence of his own. These were questions to be decided by the jury from the circumstances attending the place where the body was found, its position and condition, and from the character, habits, and general conduct of the man himself. * * It is for them to weigh the probabilities of * * the premises were leased at the time of the accident, and at the beginning of the lease the sidewalk was in good condition. Cent. Dig. §§ 29-35; Dec. Dig. § 13.*] [Ed. Note. For other cases, see Indemnity, 2. INDEMNITY (§ 13*)-IMPLIED CONTRACTSLIABILITY FOR TORTS - INDEMNITY FROM PERSON PRIMARILY LIABLE. That a borough had not, as prescribed by an ordinance, repaired a sidewalk at the expense of the abutting owner after the latter had been notified to repair, but had failed to do so, will not defeat the borough's right to recover from the owner the amount of a judgment it is compelled to pay to one injured by reason of the defective sidewalk. [Ed. Note. For other cases, see Indemnity, Cent. Dig. §§ 29-35; Dec. Dig. § 13.*] 3. LIMITATION OF ACTIONS (§ 56*)—ACCRUAL OF CAUSE OF ACTION-ACTION FOR INDEMNITY. borough's right to recover of an abutting owner Limitations do not begin to run against a damages which the borough has been compelled to pay for injuries from a defective sidewalk from the date of the accident, but only from the date of the judgment, or payment thereof. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 307-311; Dec. Dig. § 56.*] Appeal from Court of Common Pleas, Luzerne County. Action by Ashley Borough against the Lehigh & Wilkes-Barre Coal Company. From a judgment on a verdict for plaintiff, defendant appeals. Affirmed. On motion for defendant n. o. v., Fuller, J., filed the following opinion: "This action of trespass was brought Auan accidental fall as Dean went home, the darkness of the night, his knowledge of the gust 24, 1907, by the borough of Ashley to way, the effect of a blunder, or a misconcep- and expenses connected therewith, which misconcep-recover the amount of a certain judgment tion of his position as he was entering upon the abutment, the probable condition of his judgment had been recovered and collected senses, his instinct of self-preservation, and from it on May 23, 1906, for damages sustained by one Anthony Ginley and wife, on all the circumstances attending the place August 2, 1902, from a defective sidewalk in front of the defendant's property situate in where he was found." Also see Ferry v. Phila. R. T. Co.. 81 Atl. 426, decided at this term, and authorities there cited. We conclude that there was enough in the that borough. "By the present motion for judgment non evidence produced to justify the submission obstante veredicto, as upon the trial, defendof the issues to the jury, and that error ant urges these points, viz.: (1) That the ocwas committed in giving binding instruc-cupancy of its lessee exempted it from liations for the defendant. The assignments are sustained, and the judgment is reversed, with a venire facias de novo. (232 Pa. 425) ASHLEY BOROUGH v. LEHIGH & WILKES-BARRE COAL CO. (Supreme Court of Pennsylvania. July 6, 1911.) 1. INDEMNITY (§ 13*)-IMPLIED CONTRACTSLIABILITY FOR TORTS - INDEMNITY FROM PERSON PRIMARILY LIABLE. Where a sidewalk had been in a very dangerous condition for several years prior to an accident for which a judgment was rendered against the borough, and the abutting owner had been notified by the borough to repair, and had failed to do so, the borough can recover of the owner the amount of the judgment, though bility; (2) that the action is defeated by contributory negligence of the borough, in failing to exercise its municipal power and duty to make repair at cost of defendant; (3) that the action is barred by limitation, not having been begun until August 24, 1907, although the accident occurred August 2, 1902. [1] "1. Did the occupancy of its lessee exempt the defendant from liability? "The uncontradicted evidence bearing upon this point showed that the property was leased to one Dubol in 1891, and continued to be in his occupancy as lessee from that time until after the accident, the lease probably being from year to year, although this does not appear; that the sidewalk, at the time of the lease in 1891, was in good condition, but that nothing was done to it after Pa.) ASHLEY BOROUGH v. LEHIGH & WILKES-BARRE COAL CO. 443 ward; that the lessee was liable for re- | therefore was not negligent in not filling it pairs; that an ordinance of the borough, en- up. The gist of plaintiff's case is the alacted in 1890, expressly imposed upon, own-leged negligence of the defendant, and she can establish this, if at all, only by showing that it had not filled up the hole after notice of its existence. No such negligence appears, and, unless an owner of property out of possession of it, and while it is actually occupied by a tenant under a lease from him, is bound to keep constant watch over the pavement in front of it, and the instant the same becomes out of repair to re pair it, the plaintiff cannot recover. No such harsh and unreasonable rule can be applied to this landlord, for no such rule exists.' ers of property the duty of repairing sidewalks, or on default the borough would do so, charging expense and penalty; that on June 6, 1902, the defendant, under resolution of the borough council, was notified to repair the bad condition of the sidewalk in question, but failed to do so until after the accident, when it removed the boards composing the walk altogether. "As the foundation for discussion on the subject, we will quote from Lindstrom v. Pennsylvania Company for Ins. on Lives & Granting Annuities, 212 Pa. 391, 61 Atl. 940, followed in Chroust v. Bldg. & Loan Ass'n, 214 Pa. 179, 63 Atl. 595, which defines the governing general principles, viz.: "The plaintiff was injured by stepping into a hole in the pavement in front of property owned but not occupied by the defendant. At the time At the time of the accident, the premises were in the occupancy of a tenant under a lease from it. There was no evidence that the defect in the sidewalk had existed for any length of time. No one testified to having seen it before the day the plaintiff was injured. The hole was apparently due to the removal of a single brick. The case as presented is not one of a landlord who leases his property with a defect existing in the pavement at the time of the execution of the lease, nor is it one in which, during the term the pavement becomes out of repair, and though notified of its condition, the landlord neglects to repair it, in disregard of his covenant in the lease to do so. The action is against a landlord which had neither actual nor con structive notice of the defect in the pavement in front of the premises in the occupancy of its tenant. A municipality, though having the exclusive control of public streets, is not liable for injury resulting from an obstruction or defect in them, unless it has had actual or constructive notice of the existence of the danger. * An owner of property, not occupied by him, but in the exclusive possession of a tenant under a lease from him, ought not to be and is not held to stricter accountability. The general rule is that when premises are in good repair at the time they are let, and the landlord is not bound by the lease to keep them in repair, the tenant in possession, and not the landlord, is liable for an injury resulting from failure to repair the pavement in front of the premises. ** A tenant in possession may reasonably be held, from his going in and out of the premises, to have notice of an obstruction in the pavement in front of them as soon as it exists; but not so with the landlord, who may not even live in the same town or city, or, if living in it, far away from the property occupied by his tenant. From all that appears in the present case, the brick may have been removed so shortly before the accident that even the tenant may not have noticed the hole, and * "Thus it appears that obligation and notice must concur, in order to hold the landlord. "The obligation may spring from private contract or from public duty. "For defects which arise during the lease, the lessor may be liable, either by private agreement with his lessee or by public requirement, provided in each case he have notice, actual or constructive, of the defects. The public duty of the lessor is not divested by making the lease, but only qualified in respect to the notice, which, on account of his nonoccupancy, he should in all fairness re ceive. "In the present case, these features appear, viz.: (a) An ordinance of the borough expressly imposed upon the defendant, as owner, the duty of making repairs. (b) The culpable condition of the sidewalk consisted and amounted in fact to a general state of of more than a particular isolated defect, decay, which gave its own constructive notice. (c) The borough gave to the defendant express notice of the condition, with direction to repair, eight weeks before the accident. (d) The defendant disregarded the notice. "In our opinion, it is a case in which obligation and notice concur to hold the defendant liable, notwithstanding the lease, if the other questions involved do not prevent such a conclusion. [2] "2. Is the action defeated by contributory negligence of the borough? ""The principle underlying the right to be reimbursed for damages paid by a municipality in cases of accident is that the owner or occupier of the property as the case may be is primarily liable to the person injured.' New Castle v. Kurtz, 210 Pa. 183, 59 Atl. 989, 69 L. R. A. 488, 105 Am. St. Rep. 798. ""The rule that one of two joint tort-feasors cannot maintain an action against the other for indemnity or contribution does not apply to a case where one does the act, or creates the nuisance, and the other does not join therein, but is thereby exposed to liability. In such cases the parties are not in pari delicto as to each other, though as to third parties either may be held liable. The claim is not for contribution, but to recover from the property owner the amount the borough was compelled to pay in consequence of his neglect to do what he should have done. If the injury resulted from the property owner's neglect, the injured party has the right to elect as to which he will proceed against. Under the recent decision of the Supreme Court, in Dutton v. Lansdowne Borough, 198 Pa. 563, 48 Atl. 494, 53 L. R. A. 469, 82 Am. St. Rep. 814, the municipality and property owner cannot be sued jointly.' Fowler v. Jersey Shore Borough, 17 Pa. Super. Ct. 366. it shall be the duty or a nuisance "The defendant contends that the clear effect of the decision in New Castle v. Kurtz, 210 Pa. 183, 59 Atl. 989, 69 L. R. A. 488, 105 "Hence, notwithstanding the secondary lia- Am. St. Rep. 798, is to defeat reimbursebility of the municipality against which the ment, where such an ordinance exists, and person injured may at option proceed, and therefore to defeat recovery in the present notwithstanding the principle of noncontri- case. It is plain, however, that the controlbution among joint tort-feasors, which would ling consideration in that case was the abordinarily shut off recourse, the negligent sence of notice to the owner, which 'negatived municipality is permitted to seek reimburse- an equal liability basis upon which to build ment from the negligent owner or occupier. While both may be equally responsible for the wrongful condition in their relation to the person injured thereby, they are not so in relation to each other; but the municipality stands upon a superior plane, on account of the primary duty resting upon the owner or occupier. "The liability of the municipality in these cases under ordinary circumstances is of a technical character, not involving positive delinquency on its part; but there are exceptional cases in which positive delinquency of the municipality is involved, so that its right of reimbursement may be extinguished on the principle of contributing or participating negligence. "Illustration of this may be found in the case of New Castle v. Kurtz, 210 Pa. 183, 59 Atl. 989, 69 L. R. A. 488, 105 Am. St. Rep. 798, supra. Judgment there had been recovered against the city for damages sustained by a fall upon the sidewalk due to a ridge of ice, and the city sought reimbursement from the owner. There was a municipal ordinance which required the owner or occupier to remove ice and snow within 48 hours and provided that upon their failure the municipality would do the work and collect the expense, with a penalty. The premises were occupied by a tenant, and the owner was undoubtedly not liable for want of notice, but the Supreme Court held him not liable for the further reason that the municipality itself, having undertaken by its ordinance to remove the defect, and having failed to do so, was guilty of wrong which debarred it from being reimbursed. "In the case at bar, the ordinance provides 'that when any * ** sidewalk gets out a right in equity for subrogation against the owners of the property, not in occupancy, and without the slightest knowledge or information in regard to the condition of the pavement,' while the distinguishing consideration in this case is the presence of that very notice which preserved between borough and owner the 'liability basis.' "We are unable to believe that the Supreme Court intended to assert a proposition which would simply make municipalities the victims of their own case in adopting ordinances to secure performance of private duty for public benefit. Hence we hold that the action is not defeated by contributory negligence. [3] "3. Is the action barred by limitation? "The accident occurred August 2, 1902; the action against the borough was instituted on December 16, 1903; the notice to defend was given on May 5, 1904; final judgment was recovered on April 30, 1906; actual payment by the borough was made on May 23, 1906; and the present suit was begun August 24, 1907. "The defendant urges that the limitation is two years from the date of accident (August 2, 1902), citing the act of June 24, 1895 (P. L. 236), and claiming that the municipality's right of subrogation can only be coextensive with the liability upon which it is predicated. "The said act, however, in terms applies only to the claim of the person injured, and does not apply at all to the cause of action which belongs to the municipality for reimbursement. That cause did not arise and could not arise until final judgment at least (April 30, 1906), or perhaps not until payment (May 23, 1906); and the right of sub Pa.) VANDERSLICE v. IRONDALE ELECTRIC LIGHT, HEAT & POWER CO. such, could not come into existence before one or the other of those dates, both within two years of this action, brought August 24, 1907, if two years indeed, and not six years, be the limitation in actions of this character. It should be observed, also, that the notice to defend was given May 5, 1904, within two years of the accident (August 2, 1902). "We think the borough did all that the law requires to preserve the right of recourse, and we therefore hold that the action is not barred by limitation. "The motion for judgment non obstante veredicto is denied, judgment upon the verdict is directed in favor of the plaintiff, and an exception to this action of the court is granted to the defendant." Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. Arthur Hillman, Thomas W. Hart, drew H. McClintock, for appellant. L. Fenner, for appellee. and AnGeorge PER CURIAM. We concur in the conclusion stated in the opinion of the learned judge of the common pleas in discharging the rule for judgment non obstante veredicto. (132 Pa. 433) RITTENHOUSE et al. v. NEWHARD. (Supreme Court of Pennsylvania. July 6, 1911.) 445 PER CURIAM. This bill was for an injunction to restrain the defendant from shutting off the flow of water in a pipe that extended from a spring on his land to the land of an adjoining owner, and thence to the plaintiffs' properties in a village near by. The rights claimed by the plaintiffs were based on the allegation that a verbal agreement had been made between them and the defendant for the construction and maintenance of the line of pipe. This allegation was not sustained by proof. The material findings of fact are that prior to 1888 the water from a spring on the defendant's land ran in an open channel some 1,500 feet in length to the property of the Mountain Grove Camp Meeting Association where it was collected in a small reservoir for the use of the association. From that reservoir, a pipe extended to the houses of the plaintiffs. In 1888, the association, wishing to obtain a purer supply of water, enterant by which it was permitted to enter on ed into a verbal agreement with the defend his land and dig a ditch and lay a pipe from the spring to the line of its property and it agreed to lay a branch pipe from the main line on defendant's land to his buildings and to provide a hydrant and keep it in repair. This agreement was to last as long as the association continued to hold camp meetings on its land, and no longer. The association purchased the materials necessary, and subsequently entered into an agreement with the plaintiffs, under which they assisted in the installation and maintenance of the pipes and 1. WATERS AND WATER COURSES (§ 158%*)-hydrant. To this agreement the defendant INJUNCTION AGAINST WATER SUPPLY SHUTTING OFF. Where the agreement between plaintiff and defendant for the maintenance of a water supply, on which the plaintiff's right to enjoin defendant from shutting off the flow of water in a pipe was based, is not established, the bill for injunction is properly dismissed. [Ed. Note. For other cases, see Waters and Water Courses, Dec. Dig. § 1582.*] 2. EQUITY (§ 427*) — PLEADING - ISSUES AND PROOF. Where an agreement, on which is based the plaintiff's claim for equitable relief, is not proven, a contention that the bill should be sustained on the grounds of ratification and estoppel cannot be maintained; in the absence of averments of such grounds in the bill. was not a party, and he had no knowledge of it at the time it was made. The association was dissolved and went out of existence in 1901. [1,2] The bill was properly dismissed, because of the failure to establish the agreewas based. The contention that the bill ment on which the right to equitable relief of ratification and estoppel is without merit. should have been sustained on the grounds There was proof of neither, nor of any facts from which either would arise. But, if there had been proof, the bill could not have been sustained. Relief cannot be granted for matter not alleged. Luther v. Luther, 216 Pa. [Ed. Note.-For other cases, see Equity, Cent. 1, 64 Atl. 868. Dig. §§ 1001-1014; Dec. Dig. § 427.*] Appeal from Court of Common Pleas, Columbia County. Bill in equity by Tillmon Rittenhouse and others against Peter H. Newhard. From a decree dismissing the bill, plaintiffs appeal. Affirmed. Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. The decree is affirmed, at the cost of the appellants. (232 Pa. 435) VANDERSLICE v. IRONDALE ELECTRIC LIGHT, HEAT & POWER CO. (Supreme Court of Pennsylvania. July 6, 1911.) JUDGMENT (§ 606*)-Bar of CAUSE OF ACTION -CONTINUING TRESPASSES. Where a landowner recovers of a corporaFred Ikeler, for appellants. Grant Herring tion for the entire destruction of the beneficial and W. E. Elmes, for appellee. use of land flooded by the seepage of water from *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes flooded is shown. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1120; Dec. Dig. § 606;* Nuisance, Cent. Dig. 100.] a raceway operated by the corporation, a subse- | effect abandons his property to the wrongquent grantee of the land cannot recover ei- doer; so that when judgment is obtained, ther compensatory or punitive damages for the later loss of crops or injury to the use and oc- and satisfaction made, the property is vested cupation of the same land, where no change in in the defendant by relation as of the time the condition of the raceway or increase in the of the taking or conversion. 1 Herman on seepage therefrom or of the amount of land Estoppel, 214. So, also, the doctrine as to realty is that, where the injury is of a permanent character and goes to the entire value of the estate, the whole injury is suffered at once, and no other action can be maintained for the continuance of the injury. 1 Herman on Estoppel, 235. And the rule is the same where the injury to the property resulted from a cause which may not be perAf-manent in its character, if it was treated as permanent by the parties to the action. Hartman v. Incline Plane Co., 11 Pa. Super. Ct. 438. Appeal from Court of Common Pleas, Columbia County. Action by George Vanderslice against the Irondale Electric Light, Heat & Power Company. From a judgment for defendant non obstante veredicto, plaintiff appeals. firmed. The facts appear in the opinion of McClure, P. J., specially presiding, as follows: "There is no rule of law which will permit one man to take possession of another's property, and then force him to accept damages in lieu of his right to recover the possession of it. He cannot compel him to part with his property even for a full price. MeCoy v. Danley, 20 Pa. 85, 57 Am. Dec. 680. Accordingly, one who has been deprived of the use of his land by the casting of water or other substance upon it may bring successive actions for damages to the use, and thus compel the abatement of the nuisance. He is not bound to assume that the structure which causes the injury will be a permanent one, and therefore sue for all damages for past and future injury to his land; but he can regard the nuisance as of a transient character, and, instead of bringing an action for the whole injury to the value of his property, he may sue for the amount of such injury as he suffers from the continuance of the nuisance. C., B. & Q. R. R. Co. v. Schaffer, 124 Ill. 112, 16 N. E. 239. An owner has the right, however, to elect to treat an obstruction in a stream which backs water upon his land, or, as here, a raceway which casts water upon it, as permanent in character, and gauge his recovery accordingly. If he so elects, declares for a permanent injury to his freehold, offers evidence in support of it, has his damages assessed on the basis of a total loss of the land flooded, and receives satisfaction at the hands of the defendant, how can he again recover damages for a continuing injury to the same land, caused by the same dam or raceway, without evidence of aggravation? If he can, then what is the measure of damages? Can he compel the defendant to pay him the market value of his land a second time, or will the recovery be limited to the value of the crops he might have raised upon it since the former action? If the latter, upon what principle should a wrongdoer be forced to pay for the use of that for which he has paid the owner full value? If a party for an injury to his property elects to proceed by an action of trespass for its value, he in "Albertus W. Welliver, the plaintiff's grantor, in his action against the defendant, declared that the water seeping through the banks of the defendant's raceway destroyed his crops, flooded his system of underdrains, and permanently rendered about eight acres of his land unproductive and untillable; that his fields were permanently damaged, rendered boggy, swampy, and unfit for cultivation, depriving him of the use of the same for agricultural purposes, etc. Welliver offered no proof of loss of his crops, or the cost of restoring his system of underdrains, nor of the cost of draining off the water which was then upon his fields, but he treated the race as a fixture, and the Percolation through its banks and the flooding of his land of a nature that would continue for all time to come, and by proving the cost of the prevention of the flooding to exceed the market value of his land he thereby established the market value as the measure of his damages. "Had the defendant preferred to reconstruct its raceway so as to prevent future percolation rather than to pay damages for a permanent injury to the plaintiff's land, it could have objected to his evidence of the cost of prevention, driven him to proof of the cost of restoration alone, and thus limited his recovery to damages which had accrued prior to the trial (Aldworth v. Lynn, 153 Mass. 53, 26 N. E. 229, 10 L. R. A. 210, 25 Am. St. Rep. 608), in which event the judgment would have been no bar to the present action. But the defendant interposed no objection to the introduction of this evidence, and the plaintiff on the basis on which he staked his claim, viz., a permanent injury to his freehold, was permitted to recover damages for the entire destruction of the beneficial use of all his flooded land. This should, and in our opinion did, end further liability to Welliver (Hartman v. Incline Plane Co., 11 Pa. Super. Ct. 438); and Vanderslice, his grantee, cannot be heard to say that he received no compensation for future injuries. He took the land burdened with the seepage |