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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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allegation contained in the tenth exception. Of contracts made by
the company with the exceptarits or the Northern Liberties and
Penn Township Railroad Company, we judicially know nothing ;
and we cannot test the constitutionality of the statute by an allega-
tion of matters which cannot legitimately appear in the proceedings
or in our paper books. From the copies furnished, they appear to
be contracts for privileges purchased in other streets; and the law
does not disturb them. If they bound the company originally, they
bind it still, and the parties may still have an action for any breach
of the company's engagements. None of these matters, however,
are subjects of revision by us ; and I turn to those which properly
belong to us, premising that most of them may be dispatched in a
few words.

The first exception that the jury of view was not appointed
pursuant to an authorized application by the company seems not
to be founded in fact. They were appointed on the motion of the
company's solicitor ; and were it not so, the manner of the appoint-
ment is a matter to which the exceptants cannot make objection
since the company's ratification of the appointment by claiming
under it, is equivalent to a precedent authority.

The second is, that the road was located by the jury instead of,
the company. In the act it is said that the company shall locate,
and that the court may approve on a jury's report; but how the
inhabitants could be prejudiced by allowing the act of location to
be performed by the jury instead of the company's officers, has not
been shown. It is not to be credited that the jury would be less
disinterested and regardful of " the public business, trade, and pri-
vate property" of the inhabitants, than the company itself would
be. It was the privilege of the company to make the location by
its officers ; and in surrendering it to the jury it renounced a benefit


[Philadelphia & Trenton Railroad Co.J

''provided for it, which a common-law maxim too trite to be r*^q
repeated, authorized it to do. Even were that not 80, the '
jury might be considered as its agent, having made the location by
its direction, as evidenced by its subsequent ratification of the act.
The question before the court, however, regarded not the paternity
of the location but the propriety of it. Not only the court, but
the jury were to be satisfied of the propriety of the latter ; and it
is not probable that the jury would have been as well satisfied with
the propriety of any other, as with their own. The exception at
best depends on a literal interpretation ; and it is not to be favored.

The third is, that the jury were not sworn by the authority of
the court, or in the terms prescribed by the law. What terms?
The act itself prescribed none: nor did it direct the jurors to be
sworn at all. And yet it is stated in the report that they were
aworn or affirmed according to law ; and as nothing in the record
contradicts it, we are to take it as it is stated. It was provided that
the jury should be appointed "as directed" and here the sentence
was left incomplete by the omission of something intended to have
been subjoined ; but what that was, cannot be conjectured. In the
case of Adelphi Street, 2 Whart. 176, a proceeding to vacate a
street, was held to be within the purview of a preceding section to
vacate a particular alley, which was directed to be in the usual
manner ; and this on the ground that there were general princi-
ples of practice in laying out and vacating streets, to which the
legislature must have referred. That practice, however, has no
relation to the proceeding before us which is sui generis. That it
was not intended to be regulated by the road law, is clear from the
fact that no petition for a view was required ; nor was there to be
an order to view, because the jury were to act on being applied to,
and consequently without a particular mandate. As then no oath
was prescribed, it is not necessary that the jurors should have been
sworn at all ; and this disposes also of the eighth exception that the
court had not allowed, in conformity to the general road law, two
full terms betwixt the appointment of the jury and the confirma-
tion of their report.

The remaining exception is more important, because it calls in
question, for specific reasons, the validity of the statute which is
the foundation of the proceeding, and which is said to be unconsti-
tutional because it impairs the obligation of contracts ; by violating
the chartered rights of the districts of Spring Garden and the
Northern Liberties ; by violating the contract under which the right
of passage is assured to the inhabitants of this particular street ;
by taking the property of the street without compensation to the
districts or individual proprietors ; and by monopolizing the street
in derogation of the public and private uses to which it had been

43 SUPREME COURT [Dec. Term,

[Philadelphia & Trenton Railroad Co.]

applied. This, perhaps, is the substance of all these multifarious

What is the dominion of the public over such a street ? In Eng-
*4dT l an d, * a highway is the property of the king as parens
J patrice, or universal trustee ; in Pennsylvania, it is the pro-
perty of the people, not of a particular district, but of the whole
state ; who, constituting as they do the legitimate sovereign, may
dispose of it by their representatives, and at their pleasure. High-
ways, therefore, being universally the property of the state, are
subject to its absolute direction and control. An exclusive right
of ferriage across a navigable stream, which is a public highway, is
grantable only by it ; and the navigation of the stream may be
impeded or broken up by it at its pleasure. In the construction of her
system of improvements, Pennsylvania has acted on this principle.
Her dams across her principal rivers to feed her canals, have injured
if they have not destroyed the descending navigation by the natu-
ral channels ; and this without a suspicion of want of constitutional
power. The right of passage by land or by water, is a franchise
which she holds in trust for all her citizens, but over which she
holds despotic sway, the remedy for an abuse of it being a change
of rulers and a consequent change of the law. No person, natural
or corporate, has an exclusive interest in the trust, unless she has
granted it to him. Her right extends even to the soil, being an
equivalent for the six per cent, thrown into every public grant as
compensation for what may be reclaimed for roads ; and she has
acted on the basis of it ; for though damages for special injuries to
improvements have been allowed by the general road laws, nothing
has been given for the use of the ground. This principle was
broadly asserted in the Commonwealth v. Fisher, 1 P. & W. 466.

Such being a highway as a subject of legislative authority, in
what respect is a street in an incorporated town to be distinguished
from it? A municipal corporation is a separate community; and
hence a notion that it stands in relation to its streets as the state
stands in relation to the highways of its territory. That would
make it sovereign within its precincts a consequence not to be
pretended. The owner of a town plot lays out his streets as he
sees fit, or the owner of ground in an incorporated town, dedicates
it to public use as a street ; but it follows not that the dominion of
the state is not instantly attached to it. The general road law
extends to every incorporated town from which it is not excluded
by provision of the charter; and the statute book is full of special
acts for opening, widening, altering, or vacating streets and alleys
in Philadelphia and our other cities. Were it riot for the univer-
sality of the public sovereignty, the public lines of communication,
by railroads and canals, might be cut by the authority of every
petty borough through which they pass ; a doctrine to which Perm-


[Philadelphia & Trenton Railroad Co.]

sylvania cannot submit, and which it would be dangerous to urge.
It would be strange, therefore, were the streets of an incorporated
town, not public highways, subject perhaps to corporate regulation
for purposes of grading, curbing and paving; but subject also to
the paramount *authority of the legislature in the regulation r*4c
of their use by carriages, railcars, or means of locomotion
yet to be invented, and this without distinction between the inha-
bitants and their fellow- citizens elsewhere. The doctrine was car-
ried to its extent in Rung v. Shoenberger, 2 Watts 23, in which it
was affirmed that, though a city has a qualified property in its
public squares, it holds them as a trustee for the public for whose
use the ground was originally left open ; and that the enjoyment
of them is equally free to all the inhabitants of the commonwealth,
subject to regulations not inconsistent with the grant. In Barter v.
Commonwealth, 3 P. & W. 259, it was inadvertently said that the
title to the soil of a street is in the corporation, whose right to improve
it for purposes which conduce to the public enjoyment of it, is exclu-
sive and paramount to the right of an inhabitant. The point was
only incidentally involved, and consequently not very particularly
considered ; but the question of title, involving as it has done, no
more than the bounds of the grant, has lain between the grantor
and the grantee, or those deriving title from them. In no case has
title been claimed by the corporation. In the Union Burial Ground
Company v. Robinson, 5 Whart. 18, in which the point was elabo-
rately argued, the contest was betwixt the grantor and a purchaser
from the grantee ; and though the cause was eventually decided on
another ground, the court inclined to think, on the authority of
many decisions, that the title to the street, even if it had been
opened, would have remained in the grantor ; and such appears to
be the principle of Kirkham v. Sharp, 1 Whart. 323. The legal
title to the ground, therefore, remains in him who owned it before
the street was laid out ; but even that is an immaterial consider-
ation ; for an adverse right of soil could not impair the public right
of way over it, or prevent the legislature from modifying, abridging,
or enlarging its use, whether the title were in the corporation or
a stranger. I take it then that the regulation of a street is given
to a corporation only for corporate purposes, and subject to the
paramount authority of the state in respect to its general and more
extended uses ; and that there would have been no invasion of
chartered rights in this instance, even did either of these districts
stand in a relation to the public, which would impart to its charter
the qualities of a compact.

What then is the interest of an individual inhabitant as a subject
of compensation under the constitutional injunction that private
property be not taken by a corporation for public use without it?
Even agreeing that his ground extends to the middle of the street,

46 SUPREME COURT [Dec. Term,

[Philadelphia & Trenton Railroad Co.]

the public have a right of way over it. Neither the part used for
the street, nor the part occupied by himself, is taken away from
him ; and as it was dedicated to public use without restriction, he
is not within the benefit of the constitutional prohibition, which
extends not to matters of mere annoyance. The injury of which
he can complain, is not direct but consequential. It consists either
* 4f .-i in an obstruction *of his right of passage, which is personal ;
or in a depreciation of his property by decreasing the
enjoyment of it : but no part of it is taken from him and ac-
quired by the company. The prohibition, even when it pre-
cluded a seizure of private property immediately by the state,
was not largely interpreted, nor was there reason that it should
be, as ample compensation was obtained from her sense of jus-
tice without it. The sufferers were overpaid, and this sort of
aggression was always courted as a favor. But though she usually
compensated consequential damage, it was of favor, not of right.
Nor did she always make such compensation. In one well known
instance, she destroyed a ferry by cutting off access to the shore,
without provision for the sufferer ; and in the Commonwealth v. Rich-
ter, IP. & W. 467, damages were unavailingly claimed from her
for flooding a spring by a dam. The clause in the amended consti-
tution which narrows the former prohibition to a taking of private
property for a public use by a corporation, is to receive the same
construction; the word "taking" being interpreted to mean, taking
the property altogether; not a consequential injury to it which is
no taking at all. For compensation of the latter, the citizen must
depend on the forecast and justice of the legislature. 1

On the subject of the next specification, it seems scarcely neces-
sary to say that monopolies are not prohibited by the constitution :
and that to abolish them, would destroy many of our most useful
institutions. Every grant of privilege ?o far as it goes, is exclu-
sive ; and every exclusive privilege is a monopoly. Not only is
every railroad, turnpike, or canal such, but every bank, college,
hospital, asylum, or church, is a monopoly ; and the ten thousand

1 See 2 Wright 286 ; 11 Id. 30, 434 ; 1 P. F. Smith 90.

|| The constitution of 1874, art. 1, \ 10, provides, " * * * Nor shall private
property be taken or applied to public use, without authority of law, and
without just compensation being first made or secured:" and by art. 16, \ 8,
"municipal and other corporations and individuals invested with the privi-
lege of taking private property for public use. shall make just compensation
for property taken, injured or destroyed by the construction or enlargement
of their works, highways or improvements, which compensation shall be paid
or secured before such taking, injury or destruction * * *."

By art. 3, \ 1. " The General Assembly shall not pass any local or special
law * * granting to any corporation, association or individual, any special
or exclusive privilege or immunity, or to any corporation, association or in-
dividual the right to lay down a railroad track * * *." By art. 17, 1, " any
association or corporation organized for the purpose, shall have the right to
construct and operate a railroad between any points within this state * * *."||


[Philadelphia & Trentou Railroad Co.]

beneficial societies incorporated by the executive on the certificates
of their legality, by the attorney-general and judges of the Supreme
Court, are all monopolies. Nor does it seem more necessary to
remark, on the subject of the concluding specifications, of exception
to the confirmation of the report by the associate judges of the ses-
sions alone, that the approval was an act of the court; and that
they were competent to hold it. Proceedings affirmed.

Cited by counsel, 6 W. & S. 275 ; 1 Barr 313. 337 ; 5 Id. 148 ; 7 Id. 357 ;
8 Id. 447 ; 2 Jones 319; 2 Harris 242; 9 Id. 15, 197 ; 12 Id. 209 ; 1 Casey
130,230; 2 Id. 239; 9 Id. 62, 78; 1 Grant 419; 5 Wright 154; 6 Id.
226; 2 P. F. Smith 510: 4 Id. 105, 355; 8 Id. 121, 323; 11 Id. 238, 256.
|| 10 Id. 448 ; 17 Id. 310 ; 22 Id. 85 ; 25 Id. 99 ; 32 Id. 360 : 2 Norris 85 ; s.
c. 4 W. N. C. 47 ; 13 Norris 204 ; s. c. 9 W. N. C. 60 ; 14 Norris 143 ; 5
W. N. C. 185; 1 Id. 152, 236; 3 Out. 169; s. c. 10 W. N. C. 560; 12 Id.
384 ; 5 Id. 509; 4 Norris 524. ||

Cited by the auditor, 6 Casey 440.

Cited by the court below, 4 Harris 192 ; 9 Id. 166 ; 9 Casey 427.

Cited by the court, 2 W. & S. 79 ; 6 Id 113 ; 8 Id. 87 ; 6 Harris 189 ; 3
Casey 104, 354 ; 9 Id. 181 ; 12 Id. 104 ; 1 Wright 479 ; 11 Id. 321, 332 ; 13
Id. 440 ; 2 P. F. Smith 93, 125 ; 5 Id. 344 ; 6 Id. 332.

|| As to a certiorari bringing up for review nothing but the record : In re
Kensington Tpk. Co., 1 Out. 269 ; s. c. 10 W. N. C. 180. As to power of
state to improve, without compensation for injury, land over which a public
use exists, Philadelphia v. Scott, 31 Smith 86, s. c. 2 W. N. C. 716 : and
power of legislature to authorize the building of a railroad on a public
street or road, Danville R. R. Co. v. Commonwealth, 23 Smith 38 ; Struthere
v. Dunkirk R. R. Co., 6 Norris 285, s. c. 6 W. N. C. 162. Distinguished in
Philips v. Dunkirk R.R. Co., 28 Smith 181, s. c. 1 W. N. C. 635 ; as to what
is not a grant to take a public road for a railroad without compensation for
change of use, see also Pittsburgh v. Bruce, 12 W. N. C. 554. Unless act
of incorporation provided for payment of consequential damages they were
not recoverable from Railroad, &c., Co., which in pursuing its charter author-
ity caused them: West Branch v. Mulliner, 18 Smith 357, and see Spangler's
Appeal, 14 Id. 387 ; Woodward v. Webb, 15 Id. 254; Borough v. United P.
Church, 15 Norris. 335 ; and equity would not enjoin a corporation author-
ized by law to take water because it thereby consequentially damaged the
plaintiff's land, Spangler's Appeal, supra. In Duncan v. Penna R. R., 13
Norris 435, a property holder on a public street in Philadelphia, proposed
to be occupied by the Penna. R. R., was refused an injunction, to prevent the
work, but qucere, as to its liability for consequential damages (under Const.
1874). Of course, the legislature could by its charter subject a corporation
to such damages, and where the charter provided, inter alia, '' if * * * an
injury should be done to private property." * * * The court might
appoint viewers, &c. ; and water was taken by the corporation (by power
conferred by charter), thereby diminishing trie flow of water through a
mill-race one and a half miles distant, //-/'/ that its owner had an incorporeal
property in the water of the stream and could recover compensation : Lyco-
ming o. Moyer. 3 Out. 615, s. c. 11 W. N. C. 445. Neither was a municipality
lawfully exercising the power of the stnte in improving highway liable for
consequential damages . Allentown v. Kramer, 23 Smith 409. But was lia-
ble for negligence in making such improvement: Ibid. As to what is not
mere consequential damage, Shenandoali Co's. Appeal. 2 W. N. C. 482. A rail-
road may by its construction so obstruct a highway, it lawfully crosses, as to
create a nuisance. Northern Ry. o. Commonwealth, 9 W. N. C. 129 ? see also
Pittsburgh, &c., Ry. c. Commonwealth, 12 Id. 280 ; as to want of power of


[Philadelphia & Trenton Railroad Co.]

councils to authorize individual " bay-windows" overhanging highways in
Philadelphia, Reitner's Appeal, Ibid. 381.

Cited by READ, J., dissenting, Hammett v. Philadelphia, 15 Smith 167. |(

See also 5 W barton 482.

*47~] *[PHILADELPHIA, JANUARY 2, 1841.]

Horback against Keeside.

The defendant who was a contractor for carrying the mail, became indebted
to the plaintiff and others, who were sub-contractors,; and drew a bill on the
post-master general, payable to his order, for a certain sum, to be charged
to his account ; which bill he endorsed, and handed it to A., one of the sub-
contractors, and told him that it was good ; that he received the drafts as his
pay, and gave them as such. The bill was endorsed by the plaintiff, and by
A. ; and was discounted, and the proceeds received by A., who paid part to
the sub-contractors who were present, and retained the balance for payment
of the others. The defendant was also one of the sub-contractors. Payment
of the bill was refused at the department, and the plaintiff was compelled
to pay it. Held that he might recover in indebitatus assumpsit for money
paid, &c., for the defendant ; and that A. was a competent witness for him.

THIS case came before the court upon a motion for a new trial.

The action was assumpsit, brought by Abraham Horback to the
use of Knox, Boggs & Co., against James Reeside. The declaration
contained the common money counts.

On the trial before Rogers, J., at a Court of Nisi Prius, held in
Philadelphia on the 22d of Nov. 1839, the plaintiff's counsel opened
that the action was brought to recover money paid by the plaintiff
for the use of the defendant.

It appeared that the defendant, who was a contractor for car-
rying the mail, had drawn a bill upon the Post-Master General for
$5000, which had been endorsed by the plaintiff and others, and
which, after having been discounted for the plaintiff, had been
refused payment at the department; and the plaintiff had been
compelled to take it up.

The bill was in the following words:

$5000. Washington, 18th April 1835.


On the 1st day of January, 1836, pay to ray order five thousand
*481 *dollars, f r value received, and charge the same to my
account for transporting the U. S. mail, and oblige

Your friend, JAMES REESIDE.

To Hon. W. T. Barry, Post-Master General."

" Accepted, provided the drawer shall perform his contract.

R. C. MASON, Treasurer."

Endorsed " James Reeside,

Abram. Horback,
D. R. McNair.


[llorback v. Reeeide.]

The counsel for the plaintiff offered in evidence the deposition
of Downing R. McNair, taken at Pittsburgh, which was objected
to by the counsel for defendant; but admitted by the judge.

The witness testified as follows :

"Abraham Horback and others were sub-contractors for carrying
the mail under James Reeside from Bedford to Pittsburgh, Penn-
sylvania. James Reeside became indebted to Abraham Horback
and others nearly five thousand dollars. The interest of the sub-
contractors extended from Pittsburgh to Wheeling, Virginia. This
amount was due for carrying the mail, as ascertained by settle-
ment, for two previous quarters to 1st January, 1836, between
Reeside and Abraham Horback and others, sub-contractors, for
which a draft was given to me, at Washington city, by James Ree-
side, sometime in October, 1835, for $5000, drawn by James Ree-
side on Hon. Wm. T. Barry, then post-master general, and accepted
by R. Mason, treasurer, payable on the first of January, 1836,
which draft was handed to Abraham Horback ; and Horback paid
the deponent four thousand nine hundred and seven dollars and
fifty cents on the twenty-first of October, 1835. The discount of
ninety-two dollars and fifty cents was taken off the draft, which
left the balance aforesaid in my hands, to be applied to the pay-
ment of Abraham Horback and others, agreeably to their respec-
tive claims. I applied this money to the payment of a portion, and
the others held me accountable. There was a small balance of the
draft beyond the amount to be paid to the sub-contractors, which
was paid by me to said James Reeside. I was a partner in the
sub-contract at this time from Bedford to Wheeling. I don't recol-
lect in whose favor the draft was drawn. It was endorsed James
Reeside when handed to the deponent." Cross-examined. " Mr.
Horback was in Washington city at the time, but was not present
when the draft was given. The draft was given on account of the
various sub-contractors, of whom deponent was one, and Abraham
Horback another. Deponent was not originally interested, but
became so subsequently by *purchase, and at the time this r*A<\
draft was given was one of the sub-contractors. The other "-
sub- contractors were Noah Mendell, John Graham, Robert Graham,
John W. Weaver, Jacob Milton, James Burns, James Vaugh. The
sub-contractors carried the mail from Bedford to Pittsburgh. We
were called the Western Company. I should say they had the line
for carrying the mail from James Reeside from Bedford to Whee-
ling. James Reeside and the Good Intent Company had the bal-
ance of the line east. Deponent does not know any of the members
of the Western Company having interest in any of the lines east of
Bedford. When Mr. Reeside handed the draft to me he said it
was good, and that he had the drafts on the department, and that
he considered them good as money. He received them as his pay,


49 SUPREME COURT [Dec. Term,

[Horback v. Reeside.]

and he could give them as such. I don't recollect that he said he
would give us that or nothing. He said that we could get it dis-
counted at some banks, I forget which. My name was upon the
draft. I don't recollect whether it was put upon it before Mr.
Horback's or not. Mr. Horback took the draft to get it discounted,
and brought the proceeds to me after it was discounted. The pro-
ceeds of the draft were applied to the sub-contractors, being distri-
buted among those that were present ; and others I held myself

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 5 of 75)