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ment and putting and maintaining materials When thus ascertained they may be collected thereon in the said street; the second is based before any construction of the railroad is comon the 13th section of said Act, Purd. Dig. 12:21. menced: Neal v. Pittsburgh & Connellsvillc RailIt declares, “If any such railroad company shall road Co., 7 Casey, 19. Inasmuch then as the find it necessary to change the site of any por- | location of the railroad on the public road was tion of any turnpike or public road, they shall an appropriation of the latter, the subsequent cause the same to be reconstrued forth with, at extension of the city so as to include this road their own proper expense, on the most favorable did not so change its character as to withdraw location and in as perfect a manner as the origi- it from the operation of the act. The city took nal road."

the road charged with its burden. It still reAs to the first count the jury returned a ver- tained the attributes of a public high way. The dict of not guilty. The second charges that the necessity of furnishing a substitute as soon as it corporation did enter upon a certain public road was occupied by the railroad was in nowise in said city and take thereof one hundred and lessened. twenty yards in length, and thereon place mate- By such occupancy, a necessity for the change rials, erect an embankment and construct a rail of the site thereof was created, and the duty to road, so as to hinder and obstruct the public in forth with reconstruct the same is imposed on their use of the same; yet it did not, after taking the corporation by the express terms of the act. the said public road and highway, forth with In accepting its charter, the corporation acquires cause the same to be reconstructed as required all the rights and privileges thereby given; but by the statute and its duty. On this count it assumes all the duties and obligations thereby the corporation was found guilty, and sentence imposed. Having taken the benefits, it cannot pronounced.

repudiate the burdens. It cannot be tolerated The first and second specifications are that that the corporation may claim to enjoy everythe statute does not apply to the roads taken and thing beneficial to itself, and wholly omit to occupied by the corporation, inasmuch as that perform an act in which the public is so largely portion was within Monongahela City when the interested. The rights granted are in considrailroad was constructed thereon. The language eration of duties assumed, among which is the ['the statute is, “any turnpike or public road.” | duty of reconstructing the public highway from When the railroad was surveyed and levated, it which it has excluded the public. Having acwas unquestionably on a public road. The road cepted all the provisions of the act, this duty was not within the city. Some two years there arises not only from the imperative command after the city was incorporated, and took, within thereof, but also from an implied agreement its limits, the whole of that portion of the high- and by tenure. The duty then being undoubted, way on which the railroad was located. The will an indietment lic against the corporation construction thereof was begun six years after- for a willful disregard of it? wards and finished the following year.

It is The injury is not to an individual only, but contended that by the extension of the jurisdic- to the public. It is the denial to every citizen tion of the city over the road it ceased to be of of the Commonwealth of a right to the use of a the class

of highways named by the statute. public highway in place of the one taken by the This view does not give due weight to the effect corporation. It is true, on failure of the corporaof the location of a railroad. The location of a tion to reconstruct the road, the municipality railroad is the taking and appropriating of the may do so and recover the cost thereof of the land.

The right of the land owner to proceed railroad company: Bean v. Howe, 4 Norris, 260 ; and have his damages assessed is complete. IIe Pennsylvania Railroaul Co. v. Borough of Irwin, may recover not only for the damages caused by Id., 336. the location but also for the subsequent con- It may also be compelled by mandamus to struction.

The damages cannot be severed. reconstruct: Rev. Commissioners of Dean They Must all be ascertained in the one pro-Inclosure, 2 Maule & Selw., 80; Same v. Severn

Neal v. Pittsburgh & Connellsville Railroad (0., 2 Barn. & Ald., *616. The fact Railroad Co., 2 Grant, 137; Wadhams v. Lack- that these remedies exist furnish no reason why awanna @ Bloomsburg Railroad Co., 6 ll right, an indictment will not also lie. Indictment is 303 ; Beale v. Pennsylvania Railroad Co., 5 to punish for the past, mandamus is to provide Sorris, 509. Immediately after the location is for the future. The act provides no specific made either the corporation or the owner of the remedy for the enforcement of this duty. All land may apply for the assessment of all dam- common law remedies are therefore open against ages done and likely to be done by the construc- the violators of this law. The failure to recontion of the railroad: Purd. Dig. 1219, pl. 35. struct concerns the public. It is therefore an

ceeding:

injury to the Commonwealth, to which belongs then proceeds to show that the distinction bethe franchise of every highway as a trustee for tween part performance and no performance, the public: O'Conner v. Pittsburgh, 6 Harris, rests on no solid foundation, and that an in187.

dictment will lie for either. So in Lyme Regis A railroad corporation, subject to the Act of v. Henley, 3 Barn. & Adol., 77 (23 E. C. L. Reps., 19th February, 1849, may, under its provisions, 43), by the terms of its charter a duty was imtake possession of such portions of any public posed on the borough or town to keep in repair road as may be within the limits of the land and maintain certain banks, sea shores, mounds taken. It is not subject to indictment for a and ditches, etc., which it omitted to do. The nuisance, for the mere taking and occupancy of action was by one aggrieved. In delivering the a public road: Danville, etc., Railroad Co. v. judgment of the court, Lord TENTERDEN, C. J., Commonwealth, 23 P. F. Smith, 29. The ques- said: “We think the obligation to repair the tion whether, the omission to reconstruct it on banks and sea shores is one which concerns the proper ground and in a suitable manner, would public, in consequence of which an indictment so subject the corporation, did not arise in that might have been maintained against the plaincase, and was expressly reserved.

tiffs in error for their general default." "An The 12th section of the Act provides that indictment may be sustained for the general inwhenever, in the construction of a railroad, it jury to the public," and the party aggrieved becomes necessary to cross or intersect any es- have his remedy. The law is correctly stated in tablished road, it shall be the duty of the officers section 91 of Wharton's Crim. Law, we may, of said company to so construct the railroad as therefore, hold that a corporation may be innot to impede the passage or transprotation of dicted for a breach of duty imposed on it by persons or property along the established road. law, though not for a felony, or for public In Northern Central Railway Co. v. Common- wrongs involving personal violence, as riots or wealth, 9 Norris, 300, it was held an indictment assaults." would lie against the corporation for so grading It follows that the learned judge committed its crossing on a public highway, as to constitute no error in the portions of the charge covered a serious inconvenience and dangerous obstruc- by the third and fourth specifications; nor in tion to travel. The right to cross was clear. overruling the motion in arrest of judgment. The offense was the failure to construct accord- The remaining specification is to the form of ing to the requirement of the statute. It may the sentence. be claimed, however, that this was rather a case The offense of which the company is conof misfeasance. It was, nevertheless, a failure victed is not for taking possession of the public to do an act in such a manner as its duty highway in the construction of its railroad, but required.

for the disregard of its duty to forth with reconIn Rex v. The Mayor, etc., of Stratford upon struct so as to provide a suitable highway in Avon, 14 East, 348, the corporation was indicted lieu of the one taken. It cannot, therefore, be for non-repair of a bridge which it was the duty compelled, by sentence in this case, to either of the corporation to repair. In The Queen v. remove the obstruction from the old road, nor Railway Co., T. T. 3 Adol. & Ellis (N. S.), *223 to construct a new one. The sentence can go (43 E. C. L. Rep3., 708), it was held the corpora- no further than to punish for the offense comtion was liable to indictment for not construct- mitted. That offense is, the neglect to reconing certain arches, pursuant to an order of the struct within a reasonable time. The perforinsessions and the statute, incorporating the com- ance of that duty cannot be specifically enforced pany, to connect certain lands severed by the by sentence on this conviction. railway: S. C., 3 Eng. Railw. Cases, 111. In The fine imposed is merely nominal. We Regina v. Great N. of E. Railway Co., 2 Adol. & suppose the company defended against this Ellis (N. S.), *316, the company had cut through prosecution to test its liability to reconstruct. a carriage road with its railway; but had not That being now established, we assume the comcarried the road over the railway by a bridge as pany will proceed, without any delay, to disrequired by the statute. In delivering the judg- charge its full duty. The sentence is therefore ment of the court, sustaining the indictment, amended by striking therefrom all except the Lord DENMAN, C. J., said: “The question is fine of five dollars to the Commonwealth and whether an indictment will lie at common law the costs of prosecution; and thus amended, against a corporation for a misfeasance, it being

The judgment is affirmed. admitted in conformity with undisputed decis- For plaintiff in error, A. M. Tood, Esq. ions, that an indictment may be maintained Contru, R. M. McConnell, District Attorney, against a corporation for non-feasance.” He and Thomas H. Baird, Esq.

It

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AKE V. MASON.

was also some evidence that an alley had existed

on the back of the lot, and had been inclosed by The taking of land by the Commonwealth for a public defendant, and that it also was subsequently

road does not constitute a breach of a covenant against opened. The avenue having been opened by encumbrances.

the authorities, and the fence removed, plaintiff The confirmation by the court of proper jurisdiction of a

plan for the laying out of a road is constructive notice brought this action, on the ground that he had to all parties interested of the location of such road, been evicted, and alleging that the covenant and of its liability to be opened.

implied by the words "grant, bargain, sell,'' A. took a conveyance from B. of certain real estate, with

and also the covenant of general warranty had a clause of general warranty, and with the covenant implied by the words "grant, bargain and sell." been broken. The court, on motion, entered a subsequently turned out that at the time of the con- compulsory nonsuit, which it subsequently reveyance a plan for opening a new road through a part fused to take off. Whereupon plaintiff' took this of the tract so conveyed had been confirmed absolutely writ, assigning for error the said action of the by the court of Quarter Sessions, and the road was later actually opened. In covenant by A. against B., court. to recover damages for breach of covenant, the court

For plaintiff in error, Messrs. A. V. Dively, below granted a compulsory nonsuit: Held (SHARSWOOD, C. J., and TRUNKEY, J., dissenting),

Neff and Nervine. that this was not error.

Contra, Messrs. Alexander and Herr. Where a tract conveyed by deed is described by adjoiners, and also by courses and distances, which are not actu- Opinion by MERCUR, J. Filed October 4, 1882. ally run, in case of discrepancy the description by ad

The alleged errors are to the court having joiners must prevail.

ordered and confirmed a compulsory nonsuit. Error to the Court of Common Pleas of Blair The action is covenant ou a deed from defendcounty.

ant to plaintiff, containing the words "grant, Covenant by Adolphus Ake against C. C. Ma- | bargain and sell.” The Act of 28th May, 1715, son, to recover damages for an alleged breach of Purd. Dig. 472, declares these words “shall be à covenant contained in a deed from defendant adjudged an express covenant to the grantee, to plaintifl.

his heirs and assigns, that the gravtor was seized On the trial, before DEAN, P. J., the plaintiff of an indefeasible estate in fee simple, freed proved the following facts: By deed dated May from encumbrances done or suffered from the 21, 1873, defendant conveyed to plaintiff four grantor, * * * as also for quiet enjoyment contiguous lots, numbered 4, 5, 6 and 7, in block against the grantor, his heirs and assigns, unless No. 6 in the general plan of the town of Altoona, limited by express words contained in such situated on the northeasterly side of Katharine deed.” These words are held to create a cove(now Eleventh) street, containing in front on nant that the grantor has not done any act or Katharine street 200 feet, and extending in depth created any encumbrance whereby the estate 118 feet,

ni ore or less, to line of property; the granted by him may be defeated: Lessees of lot was also described by boundaries (see opinion Gratz v. Ewalt, 2 Binn., 95; Whitehill v. Gotof court, infra). The deed contained the usual walt, 3 P. & W., 323; Dorsey v. Jackman, 1 s.

grant, bargain, sell," and a clause of & R., 50; Funk v. Voneida, 11 Id., 111; Knepper general warranty. The plaintiff paid the whole v. Kurtz, 8 P. F. Smith, 484; Shaffer v. Greer, purchase money, and went into possession, but 6 Norris, 370. It extends to and includes a tax discovered in about the latter part of 1877, that for a municipal improvement assessed on the in 1872. a street, known as Fourth avenue, had land during the grantor's title. Id. But an been laid out and confirmed absolutely by order entry on land by authority of the State in the of the Court of Quarter Sessions, made in pur- exercise of its right of eminent domain is not a suance of a resolution of councils. This avenue, breach of such a covenant. While the public which was 40 feet wide, ran the entire length may enjoy it as an easement, in law, unless of plaintiff's lot, 118 feet, occupying an area of otherwise directed by the statute, the fee still nearly 5,000 square feet of the ground he had remains in the owner. Hence a covenant of purchased.

The plaintiff had no knowledge or warranty "against the grantor and his heirs actual notice of the laying out of this street at and against all and every other person or perthe time he bought. At the time of the pur- sons lawfully claiming or to claim” was held in chase plain tiff visited the land with the defend- Dobbins v. Brown, 2 Jones, 75, not to be broken ant, and the latter pointed out a tract inclosed by the entry and occupancy of the Commonby a fence, saying that that was the lot he would wealth in the exercise of its right of eminent sell.

It was shown that the measurements in-domain. Such entry is without the cousent of side the lot so inclosed were in reality not so

the owner. It is an inherent right in the Comwere described by the deed. There ) monwealth, and its exercise cannot be prevented

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words,

large as they

by the owner. This remedy is compensation within the fence rests on no solid foundation. It provided by the State. Id. An action on the is not shown by what authority, either public or covenant will not lie against the vendor: Pat- private, the alley was laid or originally opened. terson v. Arthurs, 9 Watts, 152; Bailey v. Milten- After the plaintiff sold a part of the land, bis verger, 7 Casey, 37; Harrisburg and Potomac vendees appear to have opened the alley for Railroad Co. v. Peffer, 3 Norris, 295.

their own convenience. All the evidence in The evidence under which the plaintiff claims relation to the alley is too vague and unsatisfacto recover is substantially this: The convey- tory to give the plaintiff any cause of action ance to him was of a piece of ground situate on arising therefrom. It follows the learned judge the northeast side of Katharine street in Addis committed no error. Judgment affirmed. tion A, in the town of Altoona, consisting of SHARSWOOD, C. J., and TRUSKEY, J., dissent. four contiguous lots in block No. 6 in the general plan of the town, containing in front on

PATTERSON'S APPEAL. Katharine street 200 feet, and in “depth 118 feet,

In an agreement or license for the right to use a patent, more or less, to line of property. Bounded north

the licensee was to pay a royalty monthly upon the eastward by division line of original borough, number of goods manufactured; said royalty to be southeastward by lot No. 8 in No. 6, south west- continued until the patent ran out or was sooner inward by Katharine street, and north westward

validated by due process of law. The licensee was also

to proceed against all infringers of said patent, at his by lot No. 3 in block 6 of original plan of Al

own cost and expense. Having paid the royalties toona." His main cause of complaint is that promptly for some time, he stopped their payment, before he purchased, a public avenue upon and and upon suit to recover the same he alleged the patent over the northern part of the land conveyed had

was invalid for want of novelty, and he was therefore

relieved from all further compliance with said contract, been laid out and confirmed absolutely by order

notwithstanding the said patent had never been de of court; that he purchased without actual notice clared void by a decree of court. Held, reversing the thereof, and after he took possession the avenue court below, that until such time as the patent had was opened under and by virtue of a resolution

been declared void by a court of conipetent jurisdiction

the licensee was bound to pay the royalties. of councils. Inasmuch, however, as the avenue had been

Appeal from the decree of the Court of Comlaid out and confirmed by the court according to

mon Pleas, No. 3, of Philadelphia county. law before he bought, the public record thereof Opinion by STERRETT, J. Filed March 6, 1892. was notice to him of the location and of its lia- The rights and liabilities of the parties to this bility to be opened : Bailey v. Miltenberger, contention must be measured and determined supra. A resolution of councils directing the by their agreement of November, 1877, considopening of the street laid down in the general ered in connection with what subsequently ocplan of the town has the same force as an ordi- curred in relation to the subject-matter thereof. nance for that purpose: Sower v. City of Phila- By the terms of that agreement the appellant, delphia, 11 Casey, 231. Having then construc- as assignee of certain letters patent issued by the tive notice of the location of the avenue when United States to Chas. T. Palmer in October he bought, he can not in covenant recover dam- 1872, granted to the Novelty Paper Box Comages for the opening thereof by the public au- pany, the appellee, the sole and exclusive right thorities afterwards.

and license to make, use and sell all the devices It is also complained that the lines fell short for the manufacture of paper or pasteboard of the length stated in the deed. The land, boxes, covered by said patent, and to make and however, was also bounded by known monu- sell such boxes. He also granted to said comments on the ground. The lines were not ac- pany full and irrevocable power and authority tually run. Wnen they are not run and marked to license any other parties to use the said deon the ground, the conveyance goes to its calls | vices, and to make and sell such boxes, with the of adjoiners, whether more or less land is thereby right to charge and receive, to its own use, such included than would be contained within the royalties as the sub-licensees night agree to pay; distances specified: Younkin v. Cowan, 10 and also, in his name but at its expense, to Casey, 198; Cox v. Couch, 8 Barr, 147. The prosecute all parties infringing said patent, and plaintiff' testifies that the land was inclosed by a recover, for its sole use and benefit, all damages fence designating the lines and boundaries, and or penalties that might be awarded against them he went to the ground and examined it before by courts of justice or otherwise. In considerabuying.

tion of the license and powers thus granted, the The further complaint that the deed covered appellee agreed to give appellant one hundred an alley which had once been opened and, at shares of its capital stock and pay him a royalty the time the plaintiff purchased, was inclosed of fifty cents per thousand for all the paper boxes

sold and delivered by it during each month, peached by a refusal of the proper court to reuntil the expiration of the patent: Provided, strain those who were supposed to be infringing however, that should, in the course of litigation, it. Having enjoyed the advantages thus conan injunction by the United States Courts be tracted for, the appellee is bound to pay the refused against any party or parties infringing consideration therefor. The authorities cited said Palmier patent, thereby declaring the same and relied on by the learned counsel for the apuntenable or invalid, then and from such period pellee are not applicable to the facts of this case. all royalties aceruing and payable to the said Upon the facts found by the learned master the party of the first part shall cease."

decree recommended by him should have been The agreement also contains a stipulation that adopted. it shall terminate in the event of the company Decree reversed, and it is now adjudged and failing to comply with the conditions thereof; decreed that the appellee pay the appellant the and, in that case, the license and powers granted sum of four thousand one hundred and seven shall revert to appellant. This provision was dollars and seventy-nine cents with interest from evidently intended for the benefit of appellant, May 1, 1880, that the cross bill be dismissed, and not for the purpose of enabling the appellee and that the appellee pay the costs, includiny at its own option to terminate the contract by the costs of this appeal. simply refusing to comply with its terms. It is very evident from the provisions of the

Orphans' Court. agreement, that the parties thereto did not regard the validity of the patent as entireiy free In the Matter of the Estate of JONATHAN HULfrom doubt; and, that in consequence of its

TON, Deceased. doubtful validity, or for other reasons, the devices claimed by the patentee were being used H. devised and bequeathed to M. a part of his estate, by others without license. From testimony

appointed her executrix of his will and directed that which

she should pay his debts. In a codicil to his will he fully warranted his conclusions, the

directed that she should sell a lot and pay the debts learned

master found, substantially, that for out of the proceeds thereof, they being insuficient to some time prior to date of the contract the com- pay the debts. pany appellee was engaged in making paper Held, that the excess of debts was to be paid by M. boxes on the principle covered by the Palmer He directed “that the money coming from R. must be

equally divided between all my heirs except B., and patent; that, with the view of avoiding the

her share shall go tɔ M." There were seven chillren. possible consequence of an injunction for in- Held, that this fund was to be divided into seven equal fringement, and at the same time of placing parts, two of which were to be distributed to M. itself in a

better position to control the trade, Jonathan Hulton died on the 10th day of by restraining others from making boxes of like August, A. D. 1876, testate. He bequeathed and form and

character as those made under the devised to his daughter Martha part of his estate, Palmer pai tent, the company commenced nego- appointed her executrix of his will, and directed

with appellant which resulted in the that she should " pay all his debts and funeral contract hereinbefore referred to, and that in so expenses." He bequeathed to the heirs of his doing the company assumed all the risk of the son James the money due him on a lot he had validity of the patent.

sold to his grandson Jonathan. After executThis fully accords with the letter as wəll as ing his will he purchased this lot from his grandthe spirit of the agreement. The company ac- son, and in a codicil to the will directed that his quired the license, and undertook to prosecute executrix should sell a part thereof " for such infringers, at its own expense and for its own price as she saw fit and proper," and that the benefit, and in consideration of the advantages proceeds of the sale should be first applied to thus secured to itself, it agreed to pay appellant the payment of his debts and funeral expenses, the stipulated royalty until the expiration of the and disposed of the balance as follows: "And patent, with the proviso that if, in course of what money is left from it shall go to all my the contenu plated proceeding against those who heirs except my daughter, Elizabeth Bright. were

g the patent without license, the She is to have no share of my estate. I will proper court refused an injunction on grounds in that the share, which should go to her, shall go volving the invalidity of the patent, then and in exclusively to my daughter Martha. In addithat event the payment of royalty should cease.

tion to what I have heretofore and herein will The only construction of which the contract to Martha.” is fairly susceptible is that the stipulated royalty The executrix sold this lot for $800, not suffiwas to be paid monthly until the expiration of cient to pay the debts. She has paid the excess the patent, unless its validity was sooner im-Tover the $800 out of moneys specifically be

tiations

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