Pa.) OWENS V. AMERICAN NATURAL GAS CO. an otherwise even surface, there might have been a presumption that they had been placed there by a teamster to block his wagon while resting his horses, or had slid down from the steep banks. But their presence in the road was not a specific defect, presumably of recent origin. They were a part of a defective condition common to the road generally. The case was submitted to the jury with great care, and we find no error in the record. The judgment is affirmed. (232 Pa. 522) OWENS v. AMERICAN NATURAL GAS CO. (Supreme Court of Pennsylvania. July 6, 1911.) 1. MINES AND MINERALS (§ 73*)-OIL LEASECONSTRUCTION. Under an oil lease describing land as bounded by certain other lands, "being all of said farm with the exception of 50 acres, being the northwestern portion thereof, containing 153 acres, more or less," the northwestern 50 acres were excepted; the phrase "being in the northwestern portion thereof," referring to its immediate antecedent, the excepted 50 acres, and not to the tract conveyed. [Ed. Note.-For other cases, see Mines and Minerals, Dec. Dig. § 73.*] 2. MINES AND MINERALS (8 78*)-OIL LEASE -CONSTRUCTION. Where an oil lease provides that all wells must be located at a point satisfactory to both parties, but the only violation of the lease, or dissatisfaction averred in a bill to restrain the drilling of a well, referred to the wrongful drilling of the well on a portion of the tract reserved to the grantor, an indefinite, unexplained, and arbitrary dissatisfaction, not specifically averred in the bill, cannot be relied on to show error in refusing the injunction. [Ed. Note.-For other cases, see Mines and Minerals, Dec. Dig. § 78.*] Appeal from Court of Common Pleas, Armstrong County. Bill in equity by Hugh G. Owens against the American Natural Gas Company. From a decree sustaining a demurrer, the plaintiff appeals. Affirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, STEWART, and MOSCHZISKER, JJ. Harvey A. Miller and Edwin L. Dively, for appellant. Walter Lyon and Heiner & Golden, for appellee. 547 et al.; west by lands of Apollo borough et that the portion of this land upon which [1] The question is as to the location of the 50 acres excepted from the lease. The plaintiff contends that it is in the southwestern part of the tract where the gas well is drilled, while the defendant contends that the lease clearly located the 50 acres in the "northwestern portion thereof." The written instrument plainly excepts the northwestern 50 acres. The whole tract had an area of 203 acres, and after the 50 acres were taken out it then contained the 153 acres intended to be let; the excepted part being the 50 acres in the northwestern portion of the tract. This construction refers the phrase "being in the northwestern portion thereof" to its immediate antecedent, the excepted "50 acres." The phrase cannot be referred to the 153 acres on any reasonable construction, for that would place threefourths of the land in the northwestern portion of the whole tract, which would be an impossible situation. The ordinary rules of interpretation require the construction which we place upon the description contained in the lease, and there is nothing in the evidence called to our attention which would demand any other. [2] The lease contains a covenant that "said lessee shall also pay an acreage rental for said land of $1 per acre, viz., $153 per annum, provided that each producing well drilled on said land shall suspend the acreage rental on 51 acres of said farm, so long as the well rental or royalty above provided for is paid. All wells to be located at points satisfactory to both parMOSCHZISKER, J. The decision of the ties. The court below decided matter before us requires the interpreta- that this provision as to the location of the tion of a written instrument. The plain- wells "was never intended to apply to such tiff owned certain land, which he let for oil a controversy as has now arisen. It applies development. The lease described the prop-to the rent or royalty, and was put in to proerty as follows: "All that tract of land sit- tect both parties as to the acreage royalty or uate in the township of Kiskiminetas, coun- well royalty, as the case might be, after ty of Armstrong, Pennsylvania, bounded one or more test wells were put down." It north by lands of Apollo borough and public is not necessary to decide whether or not road; east by lands of William McKinstry this is the proper construction, for the only et al.; south by lands of William McKinstry violation of the lease, or dissatisfaction, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes averred in the bill, manifestly refers to the alleged wrongful drilling of a well "upon the tract of 50 acres reserved and excepted to your orator under the lease," and not to the location of a well on the land demised at a point which was unsatisfactory to the plaintiff for some other reason, or for general reasons. An indefinite, unexplained, and perhaps arbitrary dissatisfaction, not specifically averred in the bill, cannot be relied upon to convict a chancellor of error in refusing an injunction. The assignments of error are all overruled, and the decree of the court is affirmed, at the cost of the appellant. (232 Pa. 463) RUSSELL & CO. v. BOODY. (Supreme Court of Pennsylvania. July 6, FICIENCY. 1911.) defendant received possession of the engine, placed his engineer in charge of it, used it in his business, and exercised all the acts of complete ownership in relation to it. This branch of the case and the rulings of the trial judge in relation to questions arising out of it need not be considered, as we are of opinion that under the written agreement of sale actual delivery was not essential. This agreement was signed by the defendant and Stetler, and sent to the plaintiff for its acceptance. It provided, after a recital of the lease to Stetler, his inability to pay, and that an arrangement had been made with the defendant to transfer the engine to him, that the defendant should "take possession of and purchase the said engine, with attachments and fixtures as above described, taking the same where it is and as it is," and give the plaintiff his notes in payment. There was no formal approval of this agreeSALES (§ 363*)-DELIVERY OF PROPERTY-SUF-ment by the plaintiff, but by its acceptance of Where an engine owned by plaintiff was in the defendant's notes it consented to the arthe possession of a lessee with power to pur-rangement he had made with Stetler, and chase, and the lessee became financially involved gave up to him all its right and title to the and was in default in the payment of rent, and made an arrangement with plaintiff to transfer engine. There was nothing more for the the engine subject to plaintiff's rights, and de- plaintiff to do. It had parted with its title fendant signed an agreement with plaintiff, agreement with plaintiff, on the faith of the arrangement the defendproviding, after a recital of the lease, the les- ant had declared that he had made with see's inability to pay, and that an arrangement had been made with defendant to transfer the Stetler. It follows that it was not error to engine to him, that the defendant should take direct a verdict for the plaintiff. possession of and purchase the engine with atThe judgment is affirmed. tachments, taking it where it was and as it was, and defendant gave plaintiff his notes in payment, though there was no formal approval of the agreement by the plaintiff, a judgment was properly directed for him on the notes as against the defense of failure of delivery; no actual delivery of the engine being necessary under the written agreement. [Ed. Note.-For other cases, see Sales, Dec. Dig. 363.*] (232 Pa, 525) NEW CUMBERLAND BOROUGH v. (Supreme Court of Pennsylvania. July 6, Appeal from Court of Common Pleas, 1. WATERS AND WATER COURSES (§ 183*) — Columbia County. Action by Russell & Co. against L. H. Boody. From a judgment on the verdict for plaintiff, defendant appeals. Affirmed. Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. MUNICIPAL WATER SUPPLY - ACQUISITION OF WORKS-CONSTRUCTION OF ORDINANCE. Where a borough ordinance, giving a franchise to enter on the streets to supply water to the borough and its inhabitants, provides that the borough shall have the option, before all other persons or corporations, to purchase the plant of the grantee of the franchise at the end of 10 years, as provided by the existing laws of the state, and, if no purchase is made at the Frad Ikeler, for appellant. Grant Herring end of 10 years, the ordinance shall remain in and Clinton Herring, for appellee. PER CURIAM. This action was on two notes given by the defendant, L. H. Boody, to the plaintiff, in payment for a traction engine. The defense was a failure of delivery. The engine belonged to the plaintiff, and was in the possession of W. H. Stetler, the lessee, with the right to purchase. Stetler became financially involved, and was in default in the payment of rent to the plaintiff. He sold to the defendant all of his personal property, and arranged with him for the transfer of the engine, subject to the plaintiff's right thereto. The overwhelming weight of the testimony was that the full force until the waterworks are purchased [Ed. Note.-For other cases, see Waters and MUNICIPAL WATER SUPPLY-ACQUISITION Where water companies, incorporated after chise to enter on the streets to supply water to the passage of an ordinance granting a franthe borough and its inhabitants, as assignees of the franchise, have accepted and assumed the benefits and obligations of the ordinance and installed a plant thereunder, they are presumably subject to its provisions and bound thereby, even though they had a charter right NEW CUMBERLAND BOROUGH v. RIVERTON CONSOL. WATER CO. 549 Pa.) under Act April 29, 1874 (P. L. 73) to enter the borough and install their plant. [Ed. Note. For other cases, see Waters and Water Courses, Dec. Dig. § 183.*] 3. EQUITY (§ 48*) - JURISDICTION-ADEQUATE REMEDY AT LAW-MANDAMUS. Equity has no jurisdiction to compel a water supply company to sell its plant under a special contract and to render a statement of the cost of erecting and maintaining its works; the appropriate remedy being at common law by mandamus. [Ed. Note.-For other cases, see Equity, Dec. Dig. § 48.*] 4. APPEAL AND ERROR (§ 1106*)-DISPOSITION OF CAUSE-MANDATE TO TRIAL COURT. Where an appeal from a decree in equity is by the plaintiff, and the contention that suit should have been brought at law is not raised, and the question presented to the Supreme Court is not whether the decree shall be reversed or set aside, but simply whether the appeal shall be dismissed, the case is not within Act June 7, 1907 (P. L. 441) § 3, providing that if, on an appeal, after a decision on the merits, the question whether the suit should have been brought at law is not specifically raised by the defendant's assignments of error, it shall be deemed to have been waived, and the decree shall not be reversed or set aside because suit should have been brought at law, and hence the decree of dismissal in the present case will not be disturbed; the proper remedy being at law. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 1106.*] if no purchase is made at the end of ten years, then this ordinance is to remain in full force until waterworks are purchased by the said borough.' "The Mountain Water Company was incorporated February 20, 1896, under the general act of April 29, 1874 (P. L. 73), providing 'for the incorporation and regulation of certain corporations.' This corporation was on February 17, 1904, merged with other water companies into a corporation designated the Riverton Consolidated Water Company. "On August 16, 1909, the town council of the said borough passed a resolution declaring that 'it intended and proposed to become the owner of the works and property of the said Mountain Water Company, under the terms of the franchise granted the said Mountain Water Company on January 20, 1896, and accepted by it on the twenty-second day of the same month, and the acts of assembly relating to this subject, made and provided, and agreeing and undertaking thereby to pay therefor the net cost of erecting and maintaining the same, with interest thereon at the rate of ten per centum per annum, deducting from said interest all dividends heretofore declared.' The resolution also contained the request that the Riverton Consolidated Water Company should Appeal from Court of Common Pleas, Cum-exhibit to a committee of the town council, berland County. Bill in equity by the Borough of New Cumberland against the Riverton Consolidated Water Company and another. From a decree sustaining a demurrer, the plaintiff appeals. Affirmed. Bill in equity to compel the defendant company to sell its plant to the plaintiff borough and to render to it an itemized statement of the net cost of erecting and maintaining its works, together with a detailed statement of dividends declared, and to exhibit such books, accounts, etc., as might be necessary to verify the statement so made. The material facts are stated in the following excerpt from the opinion of the court below: "On January 20, 1896, an ordinance was passed by the borough of New Cumberland, the plaintiff in this case, giving a franchise to H. M. Horner, or his heirs and assigns, to enter upon the streets and highways of that municipality for the purpose of supplying water to the same and its inhabitants. This ordinance contained a number of provisions; the one pertinent to the present contention, and upon which the bill in this case is based, being the eleventh section, and is as follows: "That the said borough of New Cumberland shall have the option before all other persons or corporations to purchase the complete and entire plant of the said H. M. Horner at the end of ten (10) years, as provided for by the existing laws of Pennsylvania, and tailed or itemized statement showing the net their attorney or expert accountant, a decost of erecting and maintaining the works and property of the Mountain Water Com pany, as well as the amounts and dates of the payment of all dividends, if any, declared, together with such information as will enable said committee, its agents and experts, to verify said statements, and that if said request is not complied with, and if the same is not done, to take such legal steps as may be necessary to compel the giving of the information desired.' A copy of the resolution was served upon the secretary of said Riverton Consolidated Water Company, on August 18, 1909, and reply made on September 17, that 'we have no desire at present to part with our plant;' and the information desired was thus refused. "The bill prays for a decree that 'the plaintiff is entitled to purchase the plant of the Mountain Water Company by virtue of the ordinance of January 20, 1896, under the laws of the state, and also that a detailed and itemized statement of the net cost of erecting and maintaining the works and property of the said Mountain Water Company, as well as of all dividends declared by the same, be furnished, and that an order be made upon it to produce all its books, accounts, etc., to the water committee, attorney, or expert accountant, if such statement is regarded insufficient, so that the same may be compared and properly made *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes up, according to the act of assembly in such assignees of the Horner privileges which case made and provided.' * * *" were passed for the benefit of the Mountain The plaintiff's claim of right was averred Water Company in anticipation of its incorin the bill as based on the section of the poration. If the defendant companies for ordinance above quoted and clause 7 of sec- reasons of their own accepted and assumed tion 34 of the act of April 29, 1874 (P. L. the benefits and obligations of this ordinance 95), which provides that: "It shall be law- and installed the plant thereunder, or if they ful at any time after twenty years from the took over a plant so installed, presumably they introduction of water into any are subject to and bound by the section of place * * for the borough the ordinance particularly depended upon by ** into which said company shall be the plaintiff. located, to become the owners of said works, and the property of said company, by paying therefor the net cost of erecting and maintaining the same, with interest thereon at the rate of ten per centum per annum, deducting from said interest all dividends theretofore declared." [3] But, since we have not the benefit of any findings and do not know exactly what the real facts are, we shall not attempt to determine the actual effect of the ordinance upon the liability of the defendant company under the act of assembly, for, whatever its effect may be, the court below was without The defendants demurred, and the court jurisdiction in equity to afford the desired rebelow dismissed the bill. Argued before FELL, C. J., and BROWN, MESTREZAT, STEWART, and MOSCHZIS. KER, JJ. lief. We have fully treated of the subject of the proper proceedings to be pursued in actions of this character in an opinion this day filed in the case of City of Williamsport v. Citizens' Water & Gas Co., 81 Atl. 316, J. W. Wetzel and Conrad Hambleton, for and we there held that the remedy was at appellant. S. B. Sadler, for appellees. MOSCHZISKER, J. [1] The court below dismissed the bill upon the ground that the provision of the ordinance of councils, "that the said borough of New Cumberland shall have the option before all other persons or corporations to purchase the complete and entire plant of the said H. M. Horner at the end of ten (10) years as provided for by the existing laws of the state of Pennsylvania, and if no purchase is made by the borough at the end of ten years, then this ordinance is to remain in full force until waterworks are purchased by said borough," did not serve to reduce the time fixed in clause 7 of section 34 of the act of April 29, 1874 (P. L. 95), to 10 years, but merely gave the borough a contingent right to purchase the water company's plant before all others at the end of the 10 years named in the ordinance, provided the water company was then willing to sell, or, in the words of the court below, it simply meant that "at, the end of 10 years there can be no sale by the company of its property and rights to 'other persons or corporations' without first offering it to the borough." We cannot agree with this construction. We interpret the words used to mean that the borough shall have the right to acquire the water plant upon the terms provided in the act of 1874, supra, at any time after 10 years, instead of "at any time after twenty years," as fixed in the statute. [2] The defendants contend, however, that they had a charter right under the act of 1874 to enter the borough and install their plant, and therefore the ordinance was not binding upon them. It is to be noted that these companies were not incorporated until after the date of the grant to Horner, and, as we understand the case from the aver common law by mandamus. [4] In the case just cited we remitted the record to the court below with directions to transfer the cause to the law side of the court. This was done in acquiescence with section 3 of the act of June 7, 1907 (P. L. 441), which provides: "If upon an appeal, after a decision upon the merits, the question whether the suit should have been brought at law is not specifically raised by the defendant's assignments of error, the question shall be deemed to have been waived, and the decree below shall not be reversed or set aside because the suit should have been brought at law. If it is so raised, and the decision of the appellate court is that the suit should have been brought at law, it shall remit the cause to the court below, with directions to transfer it to the law side of the court. * * The plaintiff shall not be permitted to raise the question upon his appeal after a decision upon the merits, nor shall the decree below be reversed or set aside upon his appeal, because the suit should have been brought at law." In the Williamsport Case the appeal was by the defendant, and the assignments of error specifically raised the contention that "the suit should have been brought at law." Here the appeal is by the plaintiff, and that point is not so raised. Furthermore, the question is not whether we shall "reverse or set aside" the decree, but simply whether we shall dismiss the appeal. Hence the present case is not within the principle of our decision in the Williamsport Case, or within the purview of the act of 1907. Since the suit was instituted in equity and tried without jurisdiction, a judgment in favor of the plaintiff could not have been sustained had it been entered. Lewisburg Bridge Co. v. County of Union et al., 81 Pa.) WALSH v. ALTOONA & L. V. ELECTRIC RY. CO. 551 officially reported, and cases there cited. Un- I was issued, and the property was sold, on der these circumstances we shall not dis- May 14, 1909, to A. S. Welch. On the eventurb the dismissal of the bill; although, as ing of the day of the sheriff's sale, A. S. before indicated, if the error assigned as to Welch, W. T. Bell, and others went to the the construction placed upon the ordinance factory and took possession, placing locks were the only matter before the court for de- and installing watchmen. Verdict for decision, we should sustain the specifications fendants by direction of the court, and judgand reverse the decree with a procedendo. ment thereon. The appeal is dismissed, without prejudice; the costs to be divided between the parties. (232 Pa. 487) MOUDY v. BELL et al. (Supreme Court of Pennsylvania. July 6, 1911.) 1. EXECUTION (§ 268*)-SALE-RIGHTS OF PURCHASER-PRIORITIES OF LIEN. A purchaser of realty at sheriff's sale, who obtains possession, is not liable in trespass to a lessee, where the lease was subject to the mortgage under which the property was sold. [Ed. Note. For other cases, see Execution, Cent. Dig. §§ 762-767; Dec. Dig. § 268.**] 2. TROVER AND CONVERSION (§ 9*)-EVIDENCE -DEMAND. Where purchaser of real estate at sheriff's sale peaceably obtains possession, there is no conversion of personal property belonging to a lessee of the judgment debtor which remained on the premises, where there was no demand by the lessee or refusal to turn over. [Ed. Note. For other cases, see Trover and Conversion, Cent. Dig. 88 58-83; Dec. Dig. 9.*] Appeal from Court of Common Pleas, Huntingdon County. Action by Orlena Moudy against W. T. Bell and others. Judgment for defendants, and plaintiff appeals. Affirmed. § Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. James S. Woods, W. H. Woods, J. W. Leech, and Harvey Roland, for appellant. Thomas F. Bailey and W. M. Henderson, for appellees. PER CURIAM. [1] With the delivery of the sheriff's deed to Allen S. Welch, one of the appellees, there passed to him, and to those for whom he purchased the premises in controversy as trustee, the right to their possession, for appellant's lease was subject to the mortgage upon which the property was sold, and, the appellees having obtained peaceable possession of it, no trespass was committed. Leidy v. Proctor, 97 Pa. 486. [2] As to the alleged conversion by the appellees of personal property belonging to the appellant, the court correctly instructed the jury that, under the evidence, there had neither been any demand for the same nor refusal to turn it over. The verdict having been properly directed for the defendants, the judgment upon it is affirmed. (232 Pa. 479) Trespass to real property and conversion WALSH V. ALTOONA & L. V. ELECTRIC of personalty. RY. CO. (Supreme Court of Pennsylvania. July 6, 1911.) STREET RAILROADS (§ 117*)-OPERATION— ACTIONS FOR INJURIES QUESTIONS FOR JURY. In an action for injuries from jumping avoid an impending collision with a street car, from the vehicle in which plaintiff was riding to evidence held to present a question for the jury as to defendant's negligence. [Ed. Note. For other cases, see Street Railroads, Dec. Dig. §. 117.*] 2. NEGLIGENCE (§ 93*)-CONTRIBUTORY NEGLI On January 11, 1906, Orlena Moudy entered into a written lease with the William H. Moudy Manufacturing Company of a certain chair factory in the borough of Mt. 1. Union, known as the Moudy Chair Company's plant, or the De Frehn Chair Company. By its terms she was to pay a rental of $600 per year. At the time this property was rented to her, it was subject to a mortgage, given February 11, 1893, by the De Frehn Chair Company, a prior owner, to William McMurtrie Spear and Robert E. Speer, in the amount of $12,000. When the property was purchased by the William H. Moudy Manufacturing Company, the mortgage was still $12,000, with interest. This amount was reduced until, in April, 1908, it was $7,500. By an agreement between the William H. Moudy Manufacturing Company, and W. T. Bell, A. S. Welch, and others, who were the guarantors of the mortgage, it was to be paid at the rate of $500 a year, with interest on the amount remaining unpaid. On April 12, 1909, a payment of $500 became due. Mr. Moudy was unable to make this payment. On April 15, 1909, a levari facias GENCE-IMPUTED NEGLIGENCE — DRIVER OF Where plaintiff was the guest of her father, and the team drawing the vehicle in which she was riding was driven by her brother, who was not her servant or under her control when she was injured by jumping from the vehicle to avoid an impending collision with defendant's street car, any negligence of the driver, cannot be imputed to her. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 147-150; Dec. Dig. § 93.*] 3. STREET RAILROADS (§ 117*)-OPERATIONCONTRIBUTORY NEGLIGENCE QUESTION FOR JURY. In an action for injuries from jumping from a vehicle driven by plaintiff's brother to avoid an impending collision with defendant's For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |