In my opinion it does not sufficiently appear must be sought, if at all, in the protecting power that the dedication of this property includes of a court of chancery operating by its injunction school purposes to justify the taking of any of to preserve the repose of the ashes of the dead it for that object, after so long an apparent and the religious sensibilities of the living.” abandonment of such use and the clear proof of Fully recognizing a parmount duty to the livactual use for over forty-five years for a burial ing in case of public necessity, with which our ground only. But even if this opinion is not deepest feelings must not and should not interwell founded, it seems to me clear that as the fere, I cannot admit that where such duty is supposed dedication for schools can only be in- not manifested by appropriate legislation or ferred from the actual use of a portion of the authority, a son has no right to call upon a ground for that purpose, the extent of such court to prevent the desecration of his father's dedication, even if sufficiently established, must | grave. In the present situation of the case it necessarily be limited to the ground actually is unnecessary to pursue the question further. occupied by the old school building. Suffice it to say in conclusion, I am of opinion that this court has jurisdiction of this bill, that defendants have no right to enter upon the burial ground for the purpose of erecting a school building as proposed, and that they are not authorized to remove the remains, nor in any way interfere with the graves of those interred in the burial ground described in plaintiffs' bill. And as the present purpose of the defendants is to take and occupy ground, not only beyond that, but being no portion of it, they have shown no right whatever to take the ground involved in this controversy, or any portion of it for school buildings. But it is urged with great earnestness that plaintiffs are not entitled to the relief prayed for, because they are mere licensees of a burial right, giving them no claim to the land, and determinable at the pleasure of the borough, now city of Pittsburgh, and at all events, if any wrong is done plaintiffs, it is of such a character as cannot be remedied in equity. I do not question the right of the city of Pittsburgh to prevent further interment in this graveyard, nor indeed will I now deny that by proper legislation it may compel the removal of the bodies now there, if it is necessary for the health or peace of the city. But the defendants have shown no right to invoke these powers to protect their claim. The city ordinance, so far as any but itself is concerned, is mere "brutum fulmen," and indeed the defendants are not even pretending to proceed under its terms, which are that "the dead bodies must be removed to some other graveyard or cemetery." Even if the authority to compel removal of the bodies had been properly exercised, the defendants would have obtained no right thereby to use the burial ground for school purposes. Can it then be (if I am correct so far) that a court of equity has no power at the instance of the next of kin, to prevent the removal of the dead? Surely every principle, not only of decency and humanity, but of justice and social duty would indicate the contrary. Law can punish but not prevent, and if equity cannot interfere, then is our system of jurisprudence sadly deficient. In Bently v. Kurtz, 2 Peters, 566, Justice STORY, in discussing a somewhat similar case, says, in granting an injunction, "The remedy The exercise of equity jurisdiction, and granting a preliminary injunction to restrain a railroad company from passing through a burying ground for the purpose of locating the route of its road and constructing the same, does not oust the statutory jurisdiction of the Common Pleas Court until the final determination of the equity proceedings, or dissolution of the injunc tion from, entertaining an application of the company for approval of a bond for compensation for the right of way. Where there is no other suitable and practicable route for the construction of a railroad, and the land sought to be taken therefor is embraced within a cemetery tract, but from its situation and character (being a bluff or steep hillside, consisting of strata of rock from the bottom to the top, with some shale intervening) is practically unfit as a place for the burial of the dead, or for the purposes of improvement or ornamentation of the remainder of the tract, and the proposed route through the rock would not disturb or interfere with the use of that portion of the cemetery valuable for bu rial purposes, it is not such land as is within the meaning and intent of the prohibition of the general railway law against "passing through burying ground:" Act February 19, 1849, Sec. 10, P. L., 83, Pur. Dig., 1218. or burying ground, and therefore the company has no right or authority to appropriate the same, and the bond should not be approved. The tenth section of the Act of February 19, Rule to show cause why the bond should not 1849, under which the company proceeds, while be approved. Opinion by HICE, P. J. it confers the right generally to enter upon lands, for the purpose of locating the route of a railroad and constructing the same, expressly declares the company shall not pass "through any burying ground." This objection is met by a denial on the part of the company, that the land over which they wish to pass is a burying ground, within the meaning and intent of the statute. Both parties have taken considerable testimony to sustain their respective positions. We have examined this testimony with care and find the facts to be as follows: Archibald Robertson and Ann R., his wife, by their deed, dated 23d day of April, 1866, conveyed a tract of land containing five acres, more or less, to the Rt. Rev. M. Domenec, Bishop of the Diocese of Pittsburgh, to have and to hold the same in trust" for a cemetery for the Catholic church congregation in New Brighton." The title to this tract of land subsequently became vested in Bishop Tuigg, who holds the same in trust, as declared in deed to Bishop Domenec. Pursuant to notice given, this bond was presented to the court for approval, when objection being made, a rule was granted to show cause why the same should not be approved, etc., and a commissioner appointed to take testimony. Upon the argument of the rule, two principal objections were urged against the approval: First, a want of jurisdiction in the court. This was based on the ground that Bishop Tuigg had filed his bill on the equity side of the court, No. 4 September Term, 1881, and procured an injunction, restraining the said railroad company, its agents and employees from doing any acts "whereby the said Rt. Rev. John Tuigg, Roman Catholic Bishop, etc., may be damaged by reason of your (their) trespasses upon a certain piece or lot of ground, situate in Pulaski township," etc., "containing five acres, more or less," of which the lot or tract of land, described in the bond, and now sought to be entered upon for the right of way, forms part; and which injunction has not been dissolved, but still remains in force, the court having taken cognizance of the matter by entertain-hundred and forty feet, and that portion thereof ing the bill in equity and granting the injunction (preliminary). It is urged we cannot now entertain this application for the approval of this bond, and that the railroad company have no standing in court for this purpose; but their right to take the land being denied, they must proceed in said case, on the equity side of the court, and can have their right to enter determined there alone. We have carefully considered this objection, and the argument presented in support of it, and are of the opinion that the same cannot be sustained. The injunction was to restrain certain acts of trespass done, and threatened, as alleged in the bill, upon the land which was therein stated to be a cemetery; and it is still undissolved, and will doubtless restrain the company from committing further acts thereon, until it is dissolved. But this cannot, as we can see, oust the jurisdiction conferred by the statute authorizing and requiring the Court of Common Pleas to approve the bond and sureties and direct the bond to be filed for the benefit of those interested. The second objection is that the land described in the bond, over which the company seek to construct their railroad, is a part of a cemetery This tract of land is bounded on the west by Big Beaver creek, for a distance of about three (constituting about one-fourth of the whole tract) is precipitous and rugged, rising from the ordinary low-water mark of the creek, at an average slope of about forty-five degrees, until it reaches an elevation of about one hundred and fifty feet (vertical) above said low-water mark. From the top of this bluff, the land passing backward from the creek is comparatively level. This bluff, or steep hillside, consists of strata of rock from near the low-water mark to the top thereof, with some shale intervening; sonie portions of the face of the hill being covered with debris, and other portions, the solid rock protruding. The portion of the tract extending back from the bluff, or most thereof, has been laid out into burial lots and improved with avenues, walks, etc., and in these lots are numerous graves, with monuments, tombstones, etc. There are no graves on the side or face of the bluff, nor is there any road or passage way for passage on foot or otherwise from the level land on top, down the bluff, or any part thereof. Nor is there any improvement of any kind made on the face of the bluff, but the same remains in its undisturbed natural state, except so far as the Pittsburgh, Youngstown and Chicago Railroad Company may have excavated for their track on their right of way, below that sought to be obtained by this company, and a few feet above high-water mark along the creek. The bluff or hillside, owing to its steepness and its rocky character, is practically unfit as a place for the burial of the dead. It was said by some witnesses, that lands somewhat similar, had been improved by the construction of terraces, vaults, etc. This, however, was in or near large cities, or large centers of population. But in view of the location of this land, remote from any city or large center of population, and the very great expense necessary to make such or similar improvements thereon, it is very evident that it would be impracticable to make the same. Nor, indeed, from the manner in which the owners have heretofore treated this part of the land, is it reasonable to presume that this portion thereof will ever be utilized for burial purposes, or for any purpose pertaining to a cemetery or burying ground. The route proposed for the road is described in the bond as about one hundred feet vertically below the top of the bluff and about one hundred feet horizontally therefrom. The roadway would have to be cut through the rock. This would not affect any of the graves now existing, or any that might be made on the top; and the work of excavating would not disturb the same while the character of the rock and shale is such that there is no reasonable possibility that time and the action of the elements would cause these to disintegrate or fall, so as to cause any injury to any grave therein, or that can reasonably be made in the tract. While, therefore, the land sought to be taken is embraced within the lines of the cemetery tract, from its situation and character, it is practically impossible to use it as a place for the burial of the dead, or for the purposes of improvement or ornamentation of the portion of the tract valuable for burials; and a road like the one as proposed, if opened and used for the purposes of a railroad, would not in any way disturb the resting places of the dead, nor interfere with the use for this purpose of that portion of the tract valuable therefor. This conclusion of fact, from the parol testimony, is very materially strengthened by the fact that such must have been the view taken of this portion of the tract at the time of its purchase by the present owners, for in the deed from Archibald Robertson and Ann R., his wife (the wife being the former owner), to Bishop Domenec, there is a reserve to said Ann R. Robertson (of the oils and minerals on said premises) with the right to her to take the same therefrom in such manner as not to interfere with its use as a cemetery; and providing that "no excavation shall be made by said Ann R. Robertson, her heirs and assigns, in or upon said premises for the purpose of searching or exploring for oils and minerals therein, elsewhere than on the face or foot of the hill, fronting on Big Beaver river." We are therefore of the opinion that the lands described in the bond, and desired to be taken by the railroad, is not within the meaning and intent of the prohibition contained in the statute, and that in taking it the company cannot be said to be "passing through any burying ground." In reaching this conclusion we do not lose sight of the fact that all places of sepulture should be carefully guarded and protected from intrusion and disturbance, and that courts should zealously protect the same. We entertain strong convictions on this point; but the mere sentiment must not induce us to extend the inhibition of the statute to a case never contemplated nor intended to be embraced therein. Corporations, too, are not permitted to exceed the rights and powers clearly given them 'in regard to the entry upon and appropriation of lands for their uses; and even in this case, while the prohibition of the statute does not embrace the land sought to be taken, yet if the railroad company could reasonably have done so, it would have been highly proper for it to have avoided this location, simply because it was within the lines of the tract owned by the congregation, a part of which tract is a burial ground and so used by them, although the part asked to be taken is not so used, nor valuable for that purpose, and its taking not actually prohibited by the statute. Such, doubtless, was the view taken by the company, but the evidence establishes the fact that there is no other route open to it, none that is suitable and practicable, or upon which it can with any show of reason be said it would be proper for it to construct its road. But we need not extend the discussion of this question any farther; the objections urged are not sustained. No objection was made to the bond itself or the sureties, and they seem to be sufficient. And now, June 20, 1882, objections to the approval of the bond overruled and the rule discharged, the bond approved and directed to be filed. By the Court. For the rule, Messrs. Hampton & Dalzell and E. B. Daugherty. For the respondents, Messrs. Chamberlin & Piersol and Chas. F. McKenna. the space between the rows being filled with cobble stones. The snow had been beaten by constant travel, and was hard; while by reason of the thaw and subsequent freeze there was a slight coating of ice upon it. The portion between the flag-stones was slightly higher than the flag-stones themselves. The plaintiff's own testimony was: that it was the ice that made him slip and fall; that the snow and ice had lain for six weeks, and that the ridge over the cobble stones between BOROUGH OF MAUCH CHUNK v. KLINE. the flags was, may be, an inch and a half or two Although a municipality is liable for injuries resulting The streets were very slippery, there having recently inches higher than the snow over the flags. The defendant requested the court to charge, inter alia, (13) Under all the evidence in the case the verdict must be for the defendant. Refused. The court charged, inter alia: * ** "The borough is bound to keep the crossing free from obstructions from ridges, hills, mounds or drifts been much snow. The crossing upon which the foot passenger slipped consisted of two parallel rows of flag-formed by snow. It is not responsible for mere stones, the interval between them being paved with cobbles. The level of the snow on these cobbles was about two inches higher than that of the snow on the flags. The accident was caused by the passenger striking his foot against the slightly elevated portion of the crossing above described. In an acton by the foot pas senger against the borough to recover damages for the injury occasioned him by his fall, on the ground that said fall was attributable to defendant's negligence. Held, that the defendant had been guilty of no negligence, and was entitled to judgment. Held further, that the slight elevation of that portion of slipperiness of the crossing occasioned by the thawing and freezing of snow and ice, or from rain or mist falling and freezing. These are the results of natural causes, and could not be controlled by man. But the borough authorities can and are bound to remove or level off the snow and ice that may have formed in ridges or hills, or in such form as to be dangerous to persons passing along the highway. A munici the crossing between the flag-stones did not constitute pality cannot prevent the general slipperiness a "ridge or hill" within the ruling in McLaughlin v. City of Corry, 27 P. F. Smith, 113. Error to the Court of Common Pleas of Carbon county. of its streets, caused by the snow and ice during the winter, but it can prevent such accumulations formed in the shape of ridges and hills, as render their passage dangerous. Usually in boroughs, especially in the built-up streets and the thoroughfares, the sidewalks are cleared of snow in winter, but this is not so with street Case by F. C. Kline against the Borough of Mauch Chunk to recover damages for injuries to the plaintiff resulting from a fall, which was alleged to have been caused by defendant's neg-crossings, as sleds and sleighs, sometimes heaviligence. Plea, not guilty. without more expense than the borough should bear. Then, again, sleds and sleighs passing along the streets would be seriously impeded if all the street crossings were kept bare of snow. ly loaded, must pass over them, and they are On the trial, before DREHER, P. J., the follow-used on the streets exclusively when their is ing facts appeared: On the evening of February sufficient snow for sleighing. These street cross9, 1879, the plaintiff, while crossing Race street, ings are not usually kept free from snow. Inin the borough of Mauch Chunk, at its intersec-deed, they could not very well be kept free, tion with Susquehanna street, slipped and fell, receiving the injuries for which suit was brought. He was familiar with the place, and had often used the crossing before. Snow had fallen on several of the days preceding the accident, while "As to the particular crossing involved in the on the day immediately preceding it there had present suit, the borough authorities are not been a general thaw; on the day of the accident bound to keep it free from snow and ice. If the itself the weather was very cold. The result snow or ice should form in ridges, or hills, or was that, particularly at the place of the acci- drifts on the crossings, and these become obdent, where there was much travel, the streets structions too dangerous to pass over, it would were very slippery. be the duty of the borough to remove such obThe crossing in question consisted of two par-structions by smoothing or leveling down the allel rows of flag-stones, connected with the foot-ridges and hills and rough places, or in some way on each side of the street by an iron plate, | other way to remove that obstruction, and if it should allow such obstructions to continue an unreasonable length of time, and an accident should happen to a person by reason of such obstruction, the borough would be liable for damages resulting from the injuries. "If the fall was occasioned by the mere slippery condition of the crossing, and not by the uneven or rough condition of it, then the borough would not be liable. The plaintiff knew the condition of this crossing, whatever it was. He says he knew it. This being so, in crossing it he was bound to use due care and caution, and if he failed to use such due and reasonable care and caution, as a man of ordinary care and caution, knowing the circumstances and the condition of the crossing, would have used in crossing, and if, by his failure to observe such due care and caution, he contributed to the injury and the accident, then we say to you that the plaintiff cannot recover." fer the flag-stones, and the consequence would be that the snow on the cobble stones would be higher than on the flag-stones. There was some difference of opinion among the witnesses as to the height of this elevation. It was probably different in different places. The passage of vehicles of various kinds across the foot-path would sufficiently account for such variations. The plaintiff himself said: "The center of the walk was higher than it was on each side, the center of the walk between the two stones." When asked, “How much higher was the center of the walk than that part of the walk where the stones are?" he answered: "May be an inch and a half or two inches." When asked, "What caused you to fall?" he answered: "It was the ice that made me slip and fall." As far as appears this was the only obstacle in the street to which the accident could be imputed, other than the slipperiness occasioned by the snow and ice. We cannot consider this as a ridge or hill suffered to accumulate, and rendering the crossing any more dangerous. Walking in such weather, and especially in the dusk of the evening, is always accompanied with peril. Verdict for the plaintiff in the sum of $486.27, and judgment thereon. Defendant thereupon took this writ, assigning for error, inter alia, the refusal of the court to affirm the thirteenth point presented by it, above cited. For plaintiff in error, Messrs. Edward Har- Was there anything in the surroundings to atvey and Wm. G. Freyman. tract the notice of the borough authorities, and Contra, Messrs. Allen Craig and Samuel A. make it their duty to reduce the whole crossing to a dead level? We think not, and that there was no evidence of negligence in the borough. Boyle. Opinion by SHARSWOOD, C. J. Filed March This renders it unnecessary to discuss the as20, 1882. signments of error in detail. As we think the thirteenth point of the defendant should have been affirmed, and that under all the evidence in the case the verdict must be for the defendant. Judgment reversed. It was said by Mr. Justice GORDON in McLaughlin v. City of Corry, 27 P. F. Smith, 113: "A municipality cannot prevent the general slipperiness of its streets caused by the snow and ice during the winter, but it can prevent such accumulations thereof in the shape of ridges and A. J. COCHRAN, Defendant Below, v. JOHN hills as render their passage dangerous.' Upon a careful examination of the evidence, and especially of the testimony of the plaintiff himself, we cannot find that his fall was owing to any hill or ridge, for the non-removal of which the borough ought to be responsible in damages. The learned judge very rightly charged the jury that the plaintiff must satisfy them that there was an obstacle other than the mere slippery condition and smoothness of the surface that made the passage over the crossing where he fell dangerous. The accident was at a crossing which was constructed of two parallel rows of flat stones, with an iron plate at the approach to each pavement. The space between the flat stones was filled with cobble stones. The crossing was covered with snow, which had been trodden and hardened into ice by incessant travel. It was natural that pedestrians acquainted with the crossing would generally pre CREIGHTON, In an action of trespass, where the verdict is for a sum John Creighton brought an action against A. J. Cochran for trespass. The declaration filed in the case contained two counts, each count averring that the defendant with force assaulted the plaintiff, beat and bruised him and falsely imprisoned him. The jury returned a verdict for the plaintiff for six and one-fourth cents, and subsequently the defendant paid to the prothonotary six and one-fourth cents costs |