Georgeanna B. Rife v. John Burk- | holder. Rule for a new trial; rule discharged if plaintiff remits all of the verdict in excess of $21 within 10 days; otherwise it is made absolute. John F. Ingram . George D. Brientnall. Rule for a new trial discharged. Theodore Boyer v. Hannah M. Boyer. Rule to show cause why decree of divorce should not be opened or vacated discharged. Joseph Reutten . Matilda Reutten. Rule for a new trial discharged. Pneumatic Scale Corporation (Limited) v. Ideal Cocoa and Chocolate Company. Rule for judgment for want of a sufficient affidavit of defense made absolute. Judgment entered for plaintiff for $108. John R. Brimmer . William H. McLaughlin. Exceptions to findings of fact dismissed. The Commonwealth of Pennsylvania v. H. M. Klugh, H. B. Harnish, H. H. Eshleman, Stoner Snavely, Pequea township. Rules to assess damages for Pequea township school district and to strike off judgment discharged. In re-petition of Margaret H. Johnson for a rule on Frank M. Greenleaf et al. to bring an action of ejectment. Rule discharged. Julius Schaeffer v. Clover Club Relief. Rule to open judgment and let defendant into a defense. Judgment stricken off. Columbia and Washington Borough Turnpike Company. Nuisance. Motion to quash indictment refused. Commonwealth of Pennsylvania v. W. P. Austin. Malicious trespass, appeal. Defendant found guilty. Commonwealth of Pennsylvania 2. W. L. McLaughlin. Malicious trespass. Appeal. Defendant found guilty. Commonwealth of Pennsylvania . John D. Hastings. Aggravated assault and battery, Motion to quash indictment refused. O. C. ADJUDICATIONS. Jacob B. Wissler, Warwick. Emma Gelsinger, West Cocalico. Charles S. Mearig, Upper Leacock. Mary E. Brackbill, Paradise. Abram M. Parmer, East Lampeter. Edward Cook, City. Frank B. Moore, West Hempfield. Elias Brackbill, Strasburg township. Thursday, July 8, 1915. LANCASTER LAW REVIEW. Jages by Henry Carpenter, and the record in the Court of Common Pleas of Lancaster County to December Term, 1910, VOL. XXXII.] FRIDAY, JULY 16, 1915. [No. 37 No. 37, the petition for an issue to ascer Supreme Court. tain the amount of damages, if any, suffered by Henry Carpenter by reason of the City of Lancaster taking land of the said Henry Carpenter for the opening of Susquehanna Street on the southwestern side of South Duke Street in the City of Henry Carpenter, Appellant, v. The City Lancaster, and the verdict of the jury in that case." of Lancaster. Streets-Opening of—Sewers-Damages. A land owner to whom a fixed amount of damages have been awarded under a local Act for opening a street, cannot also recover damages under the Acts of May 16, 1891, and April 10, 1905, for the construction of a sewer within the lines of said street before it is opened. The appropriation of the land for street purposes included the use of that land for all the ordinary requirements of a municipality such as the construction of sewers and the laying of gas and water pipes. The use of the street for such purposes cannot be regarded as the imposition of an additional servitude, entitling the owner of the fee to additional compensation." Appeal No. 72 of January Term 1914, by plaintiff from judgment of C. P. of Lancaster Co. to January Term 1911, No. 22 on a verdict for defendant. Issue to ascertain and determine what 2. The Court erred in its answer to plaintiff's point, which point and answer were as follows: "Plaintiff asks the Court to instruct the jury that if the evidence for the plaintiff is believed their verdict should be for the plaintiff for such amount as they find from the evidence he has sustained damages. The Court: That point we refuse.” 3. The Court erred in its answer to defendant's point, which point and anSwer were as follows: "Defendant submits the point that under the law and evidence the verdict should be for the defendant. The Court: That point we affirm.” 4. The Court erred in charging the jury as follows: "The Court: We instruct you, gentle damages, if any, the plaintiff has suf-men of the jury, to find your verdict for fered by reason of the construction of a here is to establish whether any damages the defendant. The question involved sewer by the defendant on the line of Susquehanna Street in the city of Lan-can be recovered in this form of action by Mr. Carpenter, and it is a question we will have to pass upon later on without a jury.” caster. (For opinion of the Court below HASSLER, J. on the rule for a new trial see 31 LAW REVIEW 110). The assignments of error were as follows: 1. The Court below erred in admitting the following testimony offered by defendant: "Defendant offers in evidence the city plan of the City of Lancaster, showing Susquehanna Street, adopted by the Court of Quarter Sessions in 1879, and also the record in the matter of the opening of Susquehanna Street; the petition for the appointment of viewers, the order to viewers, the report of the viewers, the appeal from the assessment of dam 5. The Court erred in holding as follows: We are of the opinion that the damages awarded to the plaintiff on the trial of the issue to ascertain the damages to his land by taking it for street purposes, included the damage sustained by him, if any, for taking it for the construction of the sewer. If this were not the law the defendant would be required to pay twice for what the law provides shall be paid for but once." 6. The Court erred in holding as follows: "The plaintiff can get the damages awarded him in the issue for opening the street when he takes the necessary steps to do so, as provided by the Act of Assembly on that subject. If the City has gone upon the land to construct the sewer before it has a right to do so, the street not having been opened, the plaintiff has his remedy for injury to his property by reason thereof if he has sustained any, but it cannot be tried in a proceeding such as this. He cannot obtain payment for taking his property for the opening of the street and also for constructing a sewer within the lines of the street, the latter being included in the former." 7. The Court erred in discharging the rule for a new trial: "We, therefore, discharge the rule for a new trial." 8. The Court erred in not granting a new trial. 9. The Court erred in not entering judgment for $6,000 for the plaintiff. John A. Nauman and IV. U. Hensel, for appellant. The appellant admittedly suffered $6000 by the laying of the sewer. Under the Act of 1873 the street damages are not payable until the street is ordered to be opened which has not been done in this case and may never be done. These damages were fixed at $4000. The question determined by the jury in the $4.000 verdict against the county for land to be taken when the street is ordered opened (if ever) was an ascertainment of the difference between the value of the premises before opening (with the sewer already constructed and proceedings pending for the ascertainment of damages caused by it) and after the opening of the street through the premises. The sewer damages were excluded when the street damage were ascertained. At the time of the construction of the sewer the land was private property and it remains so until an order to open the street is made by the municipal authorities and the court, who have exclusive authority and control over the same. Judgment for $6000 should be entered in this case which can be set off against the other award if the street is ever opened. Bernard J. Myers, City Solicitor, for appellee. The appellant has a legal remedy to recover these damages for the taking of his land for street purposes. In re Sedgeley Ave., 88 Pa., 509. In re Opening of Spring St., 112 Pa., 259. The construction of a sewer in a city street is a proper use of the street and does not impose an additional servitude on the adjoining land owner. 3 Abbott on Municipal Corp. 2063. 3 Dillon on Municipal Corp. 1815. Anderson v. Lower Merion Twp., 217 Pa., 369. Fisher v. Harrisburg, 2 Grant's Cases 291. authorities as to the necessity of a sewer The determination of the municipal is final and conclusive, and binding upon the courts in the absence of fraud and abuse. Michener v. Phila., 118 Pa., 535. Oil City v. Oil City Boiler Works, 152 Pa.. 348. Phila. v. Odd Fellows Hall Association, 168 Pa., 105. Phila. v. Union Burial Ground Soc., 178 Pa., 533. Fife . Turtle Creek Boro., 22 Pa. Super., 292. The construction of drains and sewers is regarded as, to a large extent, incident to the construction and maintenance of a city street. 3. Dillon on Municipal Corporations, Vol. Section 1148, page 1815. Fisher v. Harrisburg, 2 Grant's Cases, 291. The government of every incorporated town has the right to improve the street for public purposes. Barter. Commonwealth, 3 Penrose & Watts, 253. Any damages the appellant may have. suffered by reason of the sewer were covered by his $4000 street damages. The whole question is res adjudicata. There is nothing in the Act of 1873 which prevents the court from ordering the street opened and the damages paid. The construction of a sewer along a street is a benefit to abutting property. July 3, 1915. Opinion by MR. JUSTICE POTTER, J. This was an issue to determine what damages, if any, the plaintiff suffered by reason of the construction of a sewer on the line of Susquehanna Street in the City of Lancaster. It appears that the City exercised its power of eminent domain to open Susquehanna Street through the land of the plaintiff. Damages for the opening of the Street were duly assessed and awarded, and as we were informed at the argument, these damages have been paid. The City of Lancaster also constructed a sewer on Susquehanna Street, and for this the plaintiff sought, in this separate proceeding, to recover additional damages. The court below rightfully held that the plaintiff was not entitled to anything upon this account, as the damages which were awarded to him for the land occu Common Pleas--Law. Roth, et al., v. Bair. Sheriff's interpleader - Property purchased by husband with money provided by wife. Where, in a sheriff's interpleader, the testimony showed that the wife of the defendant in the execution loaned money to her husband, with which he had bought a horse and traded it for the one levied upon, the case was for the jury and a verdict for the plaintiff should not be disturbed. Rules for a new trial and for judgment for defendant n. o. v. C. P. of Lancaster Co., October Term 1914, No. 25. Chas. W. Eaby, for defendant and rule. Upon the trial, Agnes Smith, one of the plaintiffs, claimed one horse, two buggies and one set of harness, as well as a lot of household furniture the right pied by the street, covered the use of the to which was not then contested by the same ground for the construction of a defendant. She testified that the three sewer. The appropriation of the land items in dispute were hers; that she for street purposes, included the use of worked in a shirt factory and was hired that land for all the ordinary require-out; that her husband got $35.00 from ments of a municipality, such as the construction of sewers, and the laying of gas and water pipes. The use of the street for any such purpose cannot be regarded as the imposition of an additional servitude, entitling the owner of the fee to additional compensation. The construction of a sewer, is one of the well recognized uses to which a street may properly be put, and such a use must be deemed to have been contemplated when the damages were assessed for the taking of the land for street purposes. We do not see anything in this case, to take it out of the operation of the usual rule. The assignments of error are overruled, and the judgment is affirmed. her to go to the "Fishery," and that he, as her agent, bought a horse with that money; that the "horse, buggy and things claimed here" were hers, and were paid for by her. On cross-examination, she testified that she had gotten $50.00 before her marriage from her mother's estate, and that she had this amount after she was married, and that she gave it to her husband to deal in horses. In answer to a question by counsel for the defendant, "He wanted it to deal in horses, and you loaned it to him?" she answered, Yes, sir. She stated that her husband bought the buggy and harness, but that she did not know where he bought them nor how much he paid for them. Her husband testified that he bought a horse with money which his wife gave him, and he afterwards swapped this horse and continued swapping horses until he got the one which was levied upon; that it belonged to her; she got $50.00 from her mother, and had money besides. | tiff to show her title by clear and satisThe buggies, he testified, he swapped in, factory evidence, but I should not quite and the harness he bought at The like to say that it must be beyond all Bazaar." There was no testimony pre- suspicion."". In Engle's Administrators sented to contradict these statements, and v. Engle, 21 Lanc. Law Review, 285, this while some of them may have seemed a Court held that "personal property in little improbable, yet it was for the jury use and possession of a husband and wife to judge concerning their truth and to living together is presumed to belong to pass upon the credibility of the witnesses. the husband and the burden of proof is The Court, in instructing them as to the on a wife or her representatives to eslaw, said: "In the case of a wife, the tablish her ownership thereof." presumption is, that the husband is the Gockley v. Miller, 162 Pa., 271, it was owner of the property in their joint pos- also held, in an action of trespass by a session. When a wife claims property married woman against a sheriff for which has been levied upon as her hus- damages for the sale, as the property of band's she must show that she bought it, her husband, of two horses claimed by or that was bought for her, and that it her, where the evidence tended to prove was bought with her money, or was given that, at her request, the horses were purto her before the debt was contracted on chased by her husband to supply the which the execution is issued. All of place of two horses owned by her in her these matters are essential, in order to own right, one of which had died and make out a claim by a wife." We also the other she had sold, and the notes stated: "Now, we say to you that you given by her husband for the price of should give Mrs. Smith what you believe the horses were subsequently paid by to be honestly hers; but she ought not her to the holder thereof with money to be allowed anything that belonged to of her own separate estate, that the case her husband; that is, I mean, if the prop- was for the jury. erty belonged to the husband, it was subject to the levy, and, of course, she ought not then to be allowed it. You have, as I have said, seen all these parties and have heard their testimony, and it is for you, now, to render a fair and a just verdict, in accordance with the facts as you shall find them." It seems to me that this was a fair and proper statement of the law. In Eavenson v. Pownall, 182 Pa., 587, it was held that, "in a sheriff's interpleader, where the wife of the defendant in the execution claims the goods which are in the apparent possession of the husband, and alleges the husband's possession to have been that of her agent or employee, the law will not presume the existence of her separate estate, but she must prove her title by evidence which does not admit of a reasonable doubt." To the same effect is Jenkins v. Courtright, 39 Sup., 232. There, the Court below, in the answer to a point, said: "I will affirm that, with the suggestion that it might be a little overdrawn when it states that it should expel all reasonable suspicion.' The burden is upon the plain In the present case, the jury were instructed, also, that, "if Mrs. Smith loaned her money to her husband and he bought the articles, or if he bought certain articles with that money for himself in general business, and afterwards swapped them for the property which she now claims, then, under such circumstances, that property belonged to the husband and not to the wife, and was subject to the execution issued on these judgments. Under such circumstances, if you so find, the verdict ought to be in favor of the defendant." Now. as it seemed to me that there was evidence which, if believed, would sustain a verdict, the only proper course to pursue was, to submit the facts to the jury. If this proposition is correct, then the verdict should not at this time be interfered with. I believe that the case was properly tried and submitted, and that there is no good reason now why we should grant a new trial or make absolute the rule for judgment for defendant non obstante veredicto. Both rules are. therefore, now discharged. Rules discharged. |