網頁圖片
PDF
ePub 版

favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all, which is called a peremptory challenge; a provision full of that tenderness and humanity to prisoners for which our English laws are justly famous. This is grounded on two reasons. 1. As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, that want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike. 2. Because, upon challenges for cause shown, if the reasons assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment, to prevent all ill consequences from which the prisoner is still at liberty, if he pleases, peremptorily to set him aside": 4 Blackstone, 353. While the first four assignments of error must be sustained, we find nothing in the remaining twelve calling for a reversal of the judgment.

The judgment is reversed on the first four assignments of error, and the record is ordered to be remanded to the court below, together with a copy of this opinion, setting forth the cause of reversal, for further proceeding in the said court, and a venire facias de novo is awarded.

(See preceding case.)

Bank-Breach of Trust-Liability. A bank with knowledge that a fund on deposit with it is a trust fund cannot, it is held in Allen v. Puritan Trust Co., L. R. A. 1915C, 518, appropriate that fund for its private benefit, or, where charged with the knowledge of the conversion, join in assisting another to appropriate it for his private benefit, without being liable to refund the money if the appropriation is a breach of trust.

Common Pleas--Law

Petition of Margaret H. Johnson for Rule on Frank M. Greenleaf, et al., to Bring Action of Ejectment.

Ejectment-Possession-Petition under Act of April 16, 1903.

Ejectment is founded on a present right of possession, and therefore a petition under the Act of April 16, 1903, P. L. 212, by one in possession of real estate to compel others claiming title to bring suit in ejectment, should be dismissed where the respondents concede that the petitioner has a life estate in the premises.

C. P. of Lancaster Co. Trust Book, No. 23, page 110.

Coyle & Keller, for petitioner.

vested in the petitioner.

The real estate descended to and

Shallcross' Estate, 200 Pa., 122.

John A. Nauman and W. U. Hensel, for respondents.

The petitioner could not inherit the title, not being of the blood of the ancestor from whom her child inherited. Himelspark's Estate, 200 Pa., 222. McWilliams v. Rose, 46 Pa., 369. Sturgeon v. Hustead, 196 Pa., 148. Barr v. Bankhard, 22 Pa., 291. Nichol v. Hall, 12 Lanc. Bar, 159. Eckert's Estate, 5 W. N. C., 451. Moffit v. Clark, 6 W. & S., 258. Heuszey & Clark v. Gross et al., 185 Pa., 353

[blocks in formation]

as the only question for us to consider now is, whether they have shown sufficient cause why the action of ejectment cannot be brought.

66

tract of land, containing about 174 acres, | John Johnson, Sr., of one-seventh of it, in Little Britain Township, this County, to which she claims title; that the parties against whom this rule has been granted are not in possession of the same; but that they claim or have an apparent interest in, or title to, the land in question. These are all the facts necessary, according to the Act of Assembly, to give us jurisdiction to grant the rule, and we must order the respondents to bring their action of ejectment within six months, unless they have shown cause why the same cannot be brought.

In their answer, the respondents allege (which agrees with the statements of the plaintiff's petition) that the land in question was owned by John Johnson, Sr., and that, upon his death, Arthur A. Johnson inherited the undivided. one-seventh of it, and subsequently, on March 30, 1886, by purchase, obtained the other six-sevenths of the same from the other heirs of John Johnson, Sr.; that in February, 1897, the said Arthur A. Johnson died intestate, leaving to survive him his widow, who is the petitioner in this proceeding, and one child, Leta H. Johnson, who died on January 25, 1899, intestate, unmarried, and without issue, leaving as heir her mother, who is the petitioner.

The answer further avers that, as Margaret H. Johnson, the petitioner, is not of the blood of the first purchaser of the land in question, she does not inherit the land from her daughter in fee simple, but only for life, and that the respondents, as heirs of Leta H. Johnson, being of the blood of the first purchaser, inherit the land in fee and are entitled to possession of it upon the death of the petitioner.

It is unnecessary for us to decide whether the petitioner takes an absolute estate, as mother and heir of Leta H. Johnson, in the land in question, under the Act of April 8, 1833. P. L. 316, as is contended in her behalf, or whether the respondends are entitled to the fee under section 9 of the same Act, because they, and not she, are of the blood of the first purchaser, namely, Arthur A. Johnson, of six-sevenths of it, and

Ejectment is a possessory action": Losee v. McFarland, 86 Pa., 33; Gourley v. Kinley, 66 Pa., 270. It is founded on a present right of possession": Troubat & Haly, Section 1861, 5th edition. If an action of ejectment should be commenced by respondents. all that could be decided is just what respondents concede, namely, that the petitioner is entitled to possession of the land in question during her life. Such decision would not have any effect on the claim which they make, that they are the owners of the fee, without the right of possession until her death.

We are of the opinion that the fact that nothing in dispute between these parties can be settled by bringing an action of ejectment is a sufficient cause why it should not or cannot be brought, and we therefore dismiss the rule. Rule dismissed.

An Ambiguous Apology.

A young practitioner appeared before a pompous old judge, who took offense at a remark the lawyer made criticizing his decision.

"If you do not instantly apologize for that remark," said the judge, “I shall commit you for contempt of court."

"Upon reflection, your Honor." instantly replied the young attorney, "! find that your Honor was right and I was wrong, as your Honor always is."

The judge looked dubious, but finally said he would accept the apology.

-Kansas City Times.

A Lawyer's Versatility.

It seems that a lawyer is something of a carpenter. He can file a bill, split a hair, chop logic, dovetail an argument. make an entry, get up a case, frame an indictment, empanel a jury, put them in a box, bore a court, gouge a client, and other like things.-Docket.

hereby enjoined and restrained from in

LANCASTER LAW REVIEW.creasing the height of its dam, which is

constructed across the Susquehanna

VOL. XXXII.] FRIDAY, JULY 30, 1915. [No. 39 River at or near McCall's Ferry, by at

Supreme Court.

any time in the future placing flash boards or any other device upon the crest of the dam so as to cause the water of the said Susquehanna River to back and flow into the Tucquan Creek and overflow and injure the lands of the plaintiff

Woelpper v. Pennsylvania Water and Power located along the same." [9]

Company, Appellant.

Water power companies-Raising dam -Injunction-Right to-Laches.

A water power company will be enjoined from increasing the height of its dam to the injury of an upper riparian owner although the enterprise of the defendant company is of great extent and importance as compared with the property injured.

The principle that a chancellor will refuse to enjoin when greater injury will result from granting than from refusing the injunction, has no application where the act complained of is tortious. There can be no balancing of conveniences when such balancing involves the preservation of an established right.

The plaintiff's grantor having notified the defendant a year before the suit was brought that his land would be injured by the raising of the defendant's dam and threatened suit, the plaintiff was not guilty of laches in permitting the defendant to spend large sums of money in raising the dam before objecting or bringing suit.

Appeal No. 174 of January Term 1915. by the defendant from the decree of C. P. of Lancaster Co., setting in equity, enjoining the defendant from maintaining certain improvements erected upon its dam.

For opinion and decree of the court below (LANDIS, P. J.) see ante 273.

On appeal the defendant assigned for error [9] the final decree of the court below and [1-8] the dismissal of exceptions, quoting them, as follows:

"And now, March 20, 1915, this cause came on to be heard at this term of the argument list upon the exceptions duly filed to the opinion and decree entered January 16, 1915, and the same having been argued by counsel upon further consideration thereof, it is ordered, adjudged and decreed as follows: That the defendant, its agents and employees, are

6. The learned Court erred, and exception is hereby taken to the following conclusion of law (p. 28): "It makes no difference whether the enterprise conducted by the defendant company is a large or a small one." [1]

7. The learned Court erred, and exception is hereby taken to the following conclusion of law (p. 29): "The principle called the balance of injury' does not apply to a case like this, and no claim can here be asserted that the benefit to the defendant will be greater than the supposed loss to the plaintiffs." [2]

8. The learned Court erred, and excep

tion is hereby taken to the following conclusion of law (p. 32): "Nor does it seem to us to make any difference whether the dam was raised temporarily or permanently." [3]

9. Exception is taken and the learned. Court erred in affirming the latter portion of plaintiff's fifth request for conclusion of law, which was as follows (p. 39): "The plaintiff, Wilson Woelpper, is entitled to have this Court of Equity permanently enjoin and restrain The Pennsylvania Water and Power Company from increasing the height of its dam in such manner by the use of the said flash boards or other means so as to cause flood or back water from the Susquehanna River to overflow and encroach upon the lands of Wilson Woelpper, plaintiff aforesaid." [4]

10. The learned Court erred, and ex-.. ception is hereby taken to the refusal to affirm defendant's second request for findings of fact, which request and answer were as follows (p. 39):

[ocr errors]

2. The defendant has not raised its dam since the filing of plaintiff's bill, nor since the completion of its construction.

Answer: This request is refused, as contrary to the admitted testimony." [5] 23. The learned Court erred, and exception is hereby taken to the refusal to affirm defendant's sixth request for conclusions of law, which request and answer were as follows (p. 44):

ing to the testimony, the flash boards. were on the dam in the fall of 1911, a comparatively few days after this notice was given, and before they were again used, the bill was filed. Upon this conceded state of facts, it seems to us to be going too far to charge the plaintiff with laches." [8]

John A. Nauman and John E. Malone, for appellant.

6. Equity will not intervene where the alleged damages are damnum absque injuria, trifling and immaterial; while the results of an injunction would be serious, excessive and disproportionate; and the The plaintiff can not ask for an indamages, if any, to plaintiff are not irrep-junction without showing an intention in arable, but can be ascertained, fixed and redressed at law or by a master or as

sessor.

"Answer: This request is refused." [6] 25. The learned Court erred, and exception is hereby taken to the refusal to affirm defendant's eighth request for conclusions of law, which request and answer were as follows (p. 44):

"8. The undisputed testimony being to the effect that the same results, and even more serious, to plaintiff's water power and land, occur frequently from freshets in the river, as from the temporary erection of the flash boards, the alleged damages such as occur from the latter case are not irreparable nor preventable; and the occasional damage, if any, suffered from the erection of the flash boards can be assessed and fixed, as it occurs by suits at law or assessed in this proceeding.

Answer: This request is refused." [7] 252. The learned Court erred in the following conclusion of law, and exception is taken thereto, (p. 32):

"Nor does it appear to us that the allegation of laches is any better based. The plaintiff's predecessor in title gave notice to the defendant on September 1, 1911, that his land would be affected by the raising of the water of the river. There is no evidence that he did not act promptly. How could he know what the defendant proposed to do until that intention was formulated into deeds by drilling the holes and placing the flash boards in position? If it saw fit to spend $100,000.00 upon the experiment. that is no reason why the plaintiff should be barred from defending his land against the trespass caused thereby. Accord

the defendant to raise the dam.

Citizens' Coach Co. v. Camden Horse R. R. Co., 29 N. J. Eq., 299.

An injunction should not be granted where it would work greater injustice than its refusal.

York Haven W. & P. Co. v. York Haven Paper Co., 201 Fed. Rep., 270. Dilworth's Appeal, 91 Pa., 247. Huckenstine's Appeal, 70 Pa., 102. Chartier's Black Coal Co. v. Mellon, 152 Pa., 286.

a

Miles v. Pa. Coal Co., 214 Pa., 544. Wahl v. Cemetery Assn., 197 Pa., 197. Where damages would compensate for nuisance equity will not interfere. Richards' Appeal, 58 Pa., 105. Equity will not interfere if the injury be doubtful, eventual or contingent. Rhoads v. Dunbar, 59 Pa., 274.

In Berkey v. Coal Mining Company, 220 Pa., 65, the Court held that a surface owner could not enjoin the holder of mining rights from taking out coal which might result in complete destruction of the surface tenement.

The plaintiff is guilty of laches in permitting the defendant to make expensive improvements while he delayed bringing suit. This should be considered, if it is not a determining factor.

West & Co. v. Octarara Water Co.. 159 Fed. Rep., 528.

Stewart Wire Co. v. Lehigh C. N. Co., 203 Pa., 474.

16 Am. & Eng. Ency, of Law, 356.
High on Inj. Sec. 845.

Condron v. P. R. R., 233 Pa., 197.
N. Y. City 2. Pine, 185 U. S., 93.

It is a fundamental principle of equity that the prayer for general relief must be consistent with the evidence and plead

ings and in the present case there has been produced nothing which would warrant the interference of a Chancellor. Del. & Hud. Canal Co. v. Pa. Coal Co., 21 Pa., 13.

Summers v. Shryock, 46 Super., 231.
Luther v. Luther, 216 Pa. I.

Appeal of Passyunk Bldg. Assn., 83 Pa., 441.

John M. Groff and Wm. Clark Mason, for appellee.

The defendant showed no grant from the plaintiff or his grantors or right to increase the height of its dam or that it had eminent domain.

The plaintiff's grantor warned the company.

The plaintiff did not know of the defendant's large expenditures and was not guilty of laches.

Alexander v. Kerr, 2 Rawle, 82. Beech v. Krider, 15 Pa. Super, 89. The plaintiff has suffered substantial damage and is entitled to the injunction. Walters v. McElroy, 151 Pa., 549. Railroad Co. v. Steel & Iron Co., 218 Pa., 224.

Trustees v. Navigation Co., 236 Pa.,

350.

Keppel v. Navigation Co., 200 Pa., 649. Griffiths v. Railroad Co., 232 Pa., 639. The owner of land in Pennsylvania cannot be deprived of the same by an unlawful taking by an individual or a corporation not possessed of the power of eminent domain.

found as a fact, that by reason of flash boards, placed at certain seasons of the year upon the top of the dam, the water is dammed up and backs upon the plaintiff's property to a depth of from two and a half feet up to four and a half feet, and covers at times about five hundreths of an acre of land. The court below held that plaintiff was entitled to relief, and issued an injunction restraining defendant from increasing the height of its dam so as to cause the water of the Susquehanna River to back and flow into Tucquan Creek and overflow and injure the lands of the plaintiff located along that Creek. Counsel for appellant do not deny that the rights of plaintiff have been invaded by its acts in raising the height of the dam and overflowing plaintiff's land, but they contend that an injunction should not have been awarded, because the injury is not irreparable, and the remedy will result, they allege, in greater injury than that which plaintiff seeks to prevent. In support of their contention counsel cites the case of Berkey v. Coal Mining Company, 220 Pa., 65. But there the inquiry was as to the respective rights of owners of different strata of the land. Between the rights of the owner of the surface, and those of the owner of the coal that lay beneath, which its owner had the right to mine and remove, and it was held that under the peculiar facts, the injury to the surface could be adequately compensated in damages. But a distinction was pointed out between the situa

Alexander v. Kerr, 2 Rawle, 82. McCalmont v. Whitaker, 3 Rawle, 83. tion there shown, where the owner of the Casebeer v. Mowry, 55 Pa., 419. Graver v. Sholl, 42 Pa., 58. Lanc. Elec. L. H. & P. Co. v. Pa. Water & Power Co., 28 Law Review, 361. Clark v. Railroad Co., 145 Pa., 438. Colket v. Verner, 236 Pa., 285. Phila. Clay Co. v. York Clay Co., 241 Pa., 305.

[blocks in formation]

coal had a right to remove it, though responsible for damage to the surface, and that of a trespasser without any interest in the premises, whose act was a mere tort. In such a case, the right and duty of a court of equity to interfere by injunction to prevent such wrongs, was clearly recognized. The cases sustaining the right to such relief were cited, notably Walters v. McElroy, 151 Pa. 549, where Mr. Justice Heydrick said (p. 557): "As to the principle invoked, that a chancellor will refuse to enjoin when greater injury will result from granting than from refusing an injunction, it is enough to observe that it has no appli

« 上一頁繼續 »