from liability by committing the per-mitted by the lessee company and by an formance of these duties to another. independent contractor. "2. The rule that, in actions for negligence, municipal corporations may in certain cases cast the responsibility upon an independent contractor whose negligence caused the injury, has never been extended to corporations for profit." Improvement Co. v. Rhoads, 116 Pa., The turnpike could not assign its franchises. P. & C. R. R. Co. v. B. & B. R. R. Co. 81* Pa., 104. B. & B. R. R. Co. v. Wood et. al., 8 Phila., 94. Evidence was offered to show that the defendant had secured larger culverts to carry off the water, thereby showing that the former culverts, in use at the time of the flooding of the plaintiffs' crops, were too small for that purpose. The court overruled this offer. We think our offer was sustained in Chestnut Hill & Spring House Turnpike Co. v. Piper, 77 Pa., 432. WV. U. Hensel, for appellee. Under the terms of the lease of the defendant's turnpike to the Conestoga Traction Co. made in conformity with the Act of May 14, 1889 the maintenance of the turnpike was under the exclusive control of the Traction Co. It has been expressly held that there can be no recovery against a company that has leased its road to a Traction Company. l'inkerton v. Traction Co., 193 Pa., 229. But the whole question has been considered by this Court in passing on the liability for a trespass along this identical turnpike, alleged to have been com In Minnich v. Lancaster and Lititz Electric Railway Co., 203 Pa., 632, the defendant which had leased the turnpike and contracted to maintain it was sued as a joint possessor with a traction company to which it sublet, and a construction company which contracted to build the road, in which operation plaintiffs' land was injured. On the first trial, the Court below held that there could be no recovery against the railway company because the trespass was committed by its lessor and the construction company, which had exclusive control of the operation and construction of the road and its maintenance. July 21, 1915. Opinion by HEAD, J. The plaintiffs' declaration sounds in tort. The injury complained of was damage to a tobacco crop on the lands of the plaintiffs which was partially destroyed by water in the summer of 1911. The responsible cause of the injury is alleged to have been a failure on the part of the defendant turnpike company to provide pipes or culverts of sufficient size to promptly carry off the water, from the land of the plaintiffs, across or under the roadbed. It appears from the evidence that the plaintiffs' land lies below the surface of the turnpike, even as it was before the construction of the street railway hereafter to be referred to. The tract of land so situate further appears to have been naturally subjected to the surplus rainfall of a water-shed water-shed comprising about four hundred acres. The nature of the obligation on the part of the turnpike company, if any such obligation existed, to provide a vent for such surplus water does not appear, but the record indicates that the case was tried as if some such obligation at one time existed. The Lancaster & Lititz Electric Railway Company was a corporation organized under the general Street Railway Act of 14 May, 1889. Section 17 of that Act declares, "Any passenger railway company incorporated under this act shall have power to ** ascertain and By various proceedings, not necessary to be here detailed, the property rights and franchises of the Lancaster & Lititz Electric Railway Company became vested in the Conestoga Traction Company as long ago as the year 1900, and that company from that time to the present has been exercising the rights and discharging the obligations which had their origin in the agreement of 1894 already referred to. At different dates prior to the injury here complained of, the railway company had provided first a twelve-inch pipe and later an additional eighteen inch pipe at or about the point necessary to relieve the land of the plaintiffs from surplus flood water. As already stated, the plaintiffs allege that these pipes were insufficient in size, and further that they were suffered to become clogged and obstructed. To recover the damages sustained they brought this action, not against the traction company, which define such route as they may deem expedient, over, upon and along any turnpike **** **, and thereupon * * * * to lay down, construct and establish a track or tracks for its use in the transaction of its business * * * * : Provided, That before such passenger railway company shall enter upon and use any such turnpike in the laying of tracks and the use of the same, it shall make compensation to the owner or owners thereof for such occupation and use in the mode provided in section 14 hereof." The section last named clearly authorizes the turnpike company and the street railway company to agree, if possible, on the compensation to be paid by the railway company, and only in case of a failure to so agree is the court of common pleas authorized to appoint viewers to fix and determine the compensation. The undisputed evidence in the case before us is that the railway company, in the exercise of its statutory right, fixed its route along and upon the turn-owned and operated the street railway pike of the present defendant company. Thereafter the two companies, in the further exercise of the right and power conferred upon each of them by the statute, undertook to agree and did agree upon the nature of the compensation to be paid by the street railway company. That agreement was reduced to writing in August, 1894 and constitutes what is called the lease in the present case. The railway company duly entered upon the turnpike and constructed its tracks thereon, and either that company or its lawful successor has since been operating the same. As a part of the compensation to be paid by the railway company, it undertook to keep in proper repair the entire roadway of the turnpike company and to assume the responsibilities of the latter in relation thereto. The testimony discloses that in the years gone by a number of surface water breaks had been constructed along the highway to gather and discharge the water flowing thereon, but that some years before the injury here complained of some automobile association had succeeded in "compelling" the removal of these water breaks. The nature of that compulsion the record does not disclose. along the turnpike, and which under the agreement or lease referred to had charge of the entire turnpike road; but against the turnpike company which, since 1894. has exercised no control as to the manner in which the railway company should perform its obligation to keep the roadbed in repair and discharge such responsibilities incidental thereto as might otherwise rest upon the turnpike company. This state of facts having been made to appear by the uncontradicted evidence, the learned trial judge directed a verdict in favor of the turnpike company and the plaintiff's appeal. The contention urged upon us by the able counsel for the appellants may be briefly stated in the following quotation from the case of Improvement Company v. Rhoads, 116 Pa., 377: "When certain powers and privileges have been specially conferred by the public upon an individual or corporation for private emolument, in consideration of which certain duties affecting the public health or the safety of public travel have been expressly assumed, the individual in receipt of the emoluments cannot be relieved of liability by committing the performance of these duties to another.' Conceding, as we grades and in such manner as would best serve its own purposes; and an agreement between the two companies that it should take care of and be responsible for any injuries resulting from the construction and operation of its road could hardly be questioned. This being the result of the provisions of the Act of Assembly, it is not easy to see that the public right and convenience would not be better subserved by having the control of the entire roadway and the responsibility for its condition vested solely in one of the parties than concurrently in both. Such a condition would result in divided responsibility and lead to much. uncertainty and confusion. If, however, it should become necessary to determine whether or not, in making the agreement aforesaid, the turnpike company had attempted an act in violation of its charter obligations, we do not think such question could be properly raised or determined in this collateral action of trespass. must, the soundness of the general pro- | the right to construct its tracks at such position stated, it does not establish the liability of the defendant in the present case. As we have already indicated, the plaintiffs' evidence does not disclose that, by reason of the grant of a turnpike franchise, the defendant company became saddled with the obligation to supply a vent to relieve the land of the plaintiffs of the surplus water that fell or flowed upon it by reason of its natural location. But assuming there was such obligation, the facts here existing carry the present case outside the lines of the general principle referred to for this reason: In the case cited, as the language we have quoted shows, the court was dealing with a situation where the corporation, by its own voluntary act and without any legal right, undertook, by its own contract, to relieve itself of obligations imposed upon it by law. To apply that doctrine to the present case would be to exclude wholly from our consideration the situation resulting from the Act of 1889. The street railway company was lawfully incorporated and was given the statutory right to locate and construct its tracks upon the turnpike of the defendant company without the consent and against the will of that company. In making its location it was authorized by the legislative will to construct its lines for its own advant-on the bed of the turnpike and that such age. Having fixed its location upon the turnpike of the defendant company, the law then authorized both parties to agree if possible on the compensation that should follow such location of the railway and its subsequent use. But the appellant urges that although this be true, the turnpike company could not, as a part of such compensation, impose upon the railway company the obligation to take care of any more of the turnpike road than the portion covered by its own tracks, and that the attempt to do so was an act ultra vires. The answer to this argument is twofold. It is not by any means clear, from the evidence before us, that the turnpike company did exceed its powers or step outside the limits contemplated by the Act of 1889 in making the agreement referred to. It is plain enough that the railway company would have The evidence demonstrating that the acts complained of were the acts of the traction company and not of the turnpike company, can the latter be held responsible for damages in this action of trespass? We have endeavored to show that the railway company was lawfully located location resulted from the exercise of its own statutory rights and was in no sense the voluntary act of the defendant company. It is also true that the turnpike company was authorized by the same statute to enter into an agreement fixing the nature and extent of the compensation to be paid by the railway company for its occupation and use of the highway. Such compensation as the railway company might lawfully give, the turnpike company ought to be, by force of the statute, authorized to receive. In Pinkerton v. Traction Co., 193 Pa., 233. Mr. Justice Mitchell said: "Nor is there any weight in the objection that the passenger railway had no power to lease its road. The power to take a lease is expressly given to the motor companies and the corresponding power in the passenger railway companies as owners to give a lease is necessarily implied. With 66 the out it the grant in the act would be nugatory." Later on in the same opinion the learned Justice says: The last point made by appellant is that even if the Pennsylvania Traction Company was incorporated the lease to it by the Columbia and Donegal Railway did not exonerate the latter from liability. But such a proposition is contrary to all the established rules of law in regard to lessor or lessee. The latter steps into the place of the former, is substituted for him, and assumes all subsequent liabilities incurred in the operation of the property leased." If then the railway company was authorized by law to enter upon and take over the control of a considerable portion of the defendant company's highway; if it was required by the statute conferring the right to agree if possible with the turnpike company upon compensation to be rendered for such occupation and use, it ought to necessarily follow that the turnpike company, on its part, was fully authorized by the same statute to exact and receive compensation, of the nature and to the extent that would as far as possible remunerate it and at the same time conserve the rights of the public in the unoccupied portion of the highway. So in Minnich. 7. Electric Railway Co., 203 Pa., 637, the plaintiff sought to join in one action of tort a railway company, originally authorized to construct a certain line of railway, a traction company which had succeeded to the rights of the railway company, and a construction company which had undertaken, for the traction company, the actual building of the line. of railway. The acts complained of by the plaintiff had been done either by the traction company or its contractor, the construction company. Nothing had been done by the lessor railway company. Mr. Justice Fell, in his opinion, said: "The learned judge was of opinion, and we think rightly, that nothing had been shown to make the railway company responsible. It had lawfully procured and lawfully leased its franchises, and it was not liable for the failure of its lessee to obtain the consent of the plaintiff to the location of the road in front of his farms." Commonwealth v. Hunsecker et al., Supervisors of Upper Leacock Township. Nuisance - Obstruction of highwayLiability of supervisors to indictment for-Electric wires. Township supervisors are not liable to indictment for permitting an adjoining landowner to set up poles and stretch thereon uninsulated electric wires between the fence and drain along a public road where they did not interfere with public travel. The placing of such poles was illegal without the consent of all adjacent land owners, submitted to the jury. and was at best a qualified nuisance to be Rule for new trial and motion in arrest of judgment. Indictment No. 19 of April Term 1915, for nuisance. Q. S. of Lancaster County. M. G. Schaeffer, for defendants and rule. John E. Malone and J. M. Groff, Dist. Att'y., contra. July 3, 1915. Opinion by LANDIS, P. J. In this case, by agreement of counsel, the jury found the following undisputed facts: In the month of November, 1914, one, John Ware, placed in a public road, in Upper Leacock Township, eight or more poles, upon which he stretched, from pole to pole, wires made of galvanized iron or steel, which were uninsulated, for the purpose of carrying electric current. These poles were located in the or remove it by his own act, so as he commit no breach of the peace in doing it, nor occasion, in the case of a private nuisance, any unnecessary damage." See, also, Rung v. Shoneberg, 2 Watts, road between the fence bounding the | And the party aggrieved by either a pubroad and the ditch or drain of the road, lic or private nuisance may also abate and did not interfere with public travel. The defendants consented to have Ware erect poles from Ware's mill to the New Holland turnpike, but did not consent to have poles erected from the New Holland turnpike south and along the prop-23; Fields v. Stokley, 99 Pa., 306. It is erties of Howard A. Johns and Willis also said, in City of Allegheny v. ZimGeist, the persons who made the com- merman, 95 Pa., 287, that “any unreasonplaint. The supervisors had nothing to able obstruction of a highway is a public do with the erection of the poles, as this nuisance, for which an indictment will was done, as has been stated, entirely by lie," but that "it is not, however, every John Ware. The carrying of electric obstruction on a highway that constitutes current over the wires is dangerous. a nuisance per se. When it is not, and For the purpose of having the matter whether a particular use is an unreasonproperly presented as a legal propositionable use and a nuisance, is a question of before the Court, the jury were in structed to find a verdict of guilty, and this was accordingly done. The defendants moved in arrest of judgment, and have also obtained a rule to show cause why a new trial should not be granted. Under the sixth section of the Act of June 13, 1836, P. L., 551, it is provided that "public roads or highways, laid out, approved and entered on record *** shall, as soon as may be practicable, be effectually opened and constantly kept in repair, and all public roads or highways, made or to be made, shall at all seasons be kept clear of all impediments to easy and convenient passing and traveling at the expense of the respective townships, as the law shall direct." For any wilful or wanton failure to discharge these duties, the supervisors are personally liable, and the township is responsible in damages to those who suffer injury from their neglect. "Every actual encroachment upon a highway, by the erection of a fence or building thereon, or any other permanent or habitual obstruction thereof, may fairly be said to be a nuisance, even though it does not operate as an actual obstruction of public travel; it is an encroachment upon a public right, and, as such, is clearly a purpresture and a nuisance" Commonwealth v. McNaugher, 131 Pa., 55. It is said, in Rhea v. Forsyth, 37 Pa., 503, that “the remedies at law for nuisances are very ample. Those that are public may be removed by indictment, and such as are private may be redressed by an action on the case. fact to be submitted to a jury." In Plymouth v. Graver. 125 Pa., 24, Mr. Justice Clark said: "The degree of care which is required of road supervisors has no exact legal standard; the law does not impose any absolute liability for every insufficiency of a road, or for every impediment to easy and convenient travel; they are required to do what is practicable to be done, and to preserve a reasonable condition of safety, with reference to the kind of road, its peculiar location, its adjacency to places of peril, and the amount and kind of travel it accommodates. It may be said, generally, that they are bound for reasonable and ordinary care, according to the circumstances. Where no danger may be anticipated, or the peril is but slight, a less degree of vigilance will suffice than where the danger is manifest. * object of a public road is to afford an easy, convenient and reasonably safe means of passage for persons traveling thereon, with horses, wagons, etc., and the duty of the supervisor is, as far as practicable, to do what is reasonably necessary to secure that object." It is, therefore, held, in City of Allegheny v. Zimmerman, supra, that "the right to partially obstruct a street is not limited. to a case of strict necessity; it may be extended to purposes of convenience or ornament, provided it does not unreasonably interfere with public travel;” and in Commonwealth v. Beaver Borough, 171 Pa., 542, that, "in the absence of municipal regulation, lot owners may, for the |