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the plaintiff.

If it appeared, that the creditors were all paid, there would be
more colour for the plaintiffs right, by virtue of his resulting inte-
rest, to pursue the assets in the hands of those who were accounta-
ble for them. But no evidence whatever has been given to show
this. There may yet be creditors unpaid: and if there are, the funds
ought to be distributed amongst them, and the plaintiff has no claim
till they are satisfied.

The result of the whole case seems to be, that it is the assignees
only who can collect the funds of the assignor, and are authorized
to sue for them; and to them the plaintiff must look for the recovery
of any surplus due to him on account of what they did receive, or
might or ought to have received under the assignment.

Judgment affirmed.






Harvey against Thomas.

The act of the 5th May 1832, authorizing the construction of lateral railroads
to connect private property with the public improvements, is not unconstitu-
tional.

A, being the owner of a coal mine, proceeded, under the act of 5th May 1832,
to ascertain the amount of damage which 15 would sustain by reason of the loca-
tion of a railroad across his land; and the matter was proceeded in, so that a
verdict was rendered for the amount of damage in favour of B. A then entered
upon the land of B, and made the road, before a judgment was entered on the
verdict: Held, that though the proceedings thus had by A did not furnish a justi-
fication of the trespass, yet they protected him from vindictive damages.

The docket entry, upon proof of the loss of the other part of the record, is
competent evidence: and parol proof may be given of the contents of that part
of the record which is lost.



64 SUPREME COURT [Sunbury

[Harrey v. Thomas.]

The act of the 5th May 1832, does not contemplate that the petitioner for a
road to the public works, should own land at the point of connection; he may
use hiaroad there consistently with the interests of the owners of the land.

ERROR to the common pleas of Luzerne county.

Jameson Harvey against Freeman Thomas. Trespass quare
claiisumfregit, brought to August term 1839. On the 5th May
1832, an act of assembly was passed, authorizing the location and
construction of lateral railroads connecting with the public im-
provements, and prescribed the mode of obtaining the same; in
pursuance thereof, the defendant, Freeman Thomas, petitioned the
court of common pleas for the appointment of viewers to ascertain
the amount of damage Jameson Harvey would sustain by reason
of the railroad which he proposed to make through his land. The
viewers reported that he should pay 100 dollars damages; from this
report Harvey appealed; and it was afterwards, to wit, 15th April
1835, tried by jury, who found 65 dollars damages. On the same
day a rule to show cause why a new trial should not be granted
was entered. On the 28th May 1835, rule discharged.

Nothing further was done until the 3d August 1839, when a
rule was entered to show cause why judgment should not be en-
tered on the verdict as of 2Sth May 1835. 14th November 1839,
rule discharged, and the court directed judgment to be entered as
of 3d August 1839, when the jury fee was paid; and at the same
time, the plaintiff, Freeman Thomas, obtained a rule to bring the

65 dollars, the amount awarded by the jury, into court and there
paid the same; it having been previously tendered to the defend-
ant, Harvey.

On the trial of this cause, it appeared that all the record of the
foregoing proceeding was lost, except the docket entry, and the de-
fendant offered to prove, by parol, the contents of the lost papers,
to which the plaintiff objected, and the court overruled the objec-
tions and sealed a bill of exceptions.

The plaintiff asked the court to instruct the jury upon these
points:

1. There being no judgment on the verdict in the proceeding of
Thomas v. Harvey, it was no justification of the trespass com-
plained of in this suit.

2. That defendant is a trespasser unless his road is made pre-
cisely upon the ground laid down in his petition and specification.

3. That defendant had no right to occupy any part of the plain-
tiff's land, at the terminus of the road, for loading boats.

4. That the act of 5th May 1832, is unconstitutional. And at
all events it was not intended to apply to any case but that where
the petitioner for the road had the right of landing, or owned the
land at the terminus of the road.

And the defendant asked the court to instruct the jury, that the

.:.. .;'. i *!;* IT;.- A ::''.; '. ^



July 1840.] OF PENNSYLVANIA. 65

[Harvey v. Thomas.]

proceedings and assessments of damages given in evidence are con-
clusive upon the plaintiff, and he cannot recover in this suit.

Jessup, president, instructed the jury, that inasmuch as the de-
fendant had not proceeded to have a judgment entered upon his
verdict, and the money tendered before this suit was brought, the
proceedings were not a justification to him; but that the record of
them, as they stood, was evidence in mitigation of damages, and in
this point of view it was permitted to go to the jury. The second
point the court answered in the affirmative, and submitted the fact
to the jury. In answer to the third point, the court said, that it
was not necessary to the enjoyment of the road by the defendant,
that he should be either the owner of the soil or of the right of
landing or loading his boats on the navigable waters at the termi-
nation of the road: his right would be to reach the navigation, and
that being a public highway, he would, when there, only be re-
sponsible for any injury he might do to the property or right of
others. The court also instructed the jury, that the act of the 5th
May 1832, is constitutional and binding: and directed them to find
for the plaintiff the amount of actual damage which he had sus-
tained by the erection of the road; but not for any consequential
damage arising from injury to his landing, &c.

Verdict and judgment for 25 dollars damages, and costs.

Campbell and Sutler, for plaintiff in error, cited Str. Purd.
146; 11 Serg. Sf Rawle 319; 1 Saund. 298; 6 Bac. rfb. 609; Co.
Lit, 303; 3 Whart. 484; 1 Penn. Rep. 394; 1 Bald. 222; 1
Yeates 167; 9 Serg. fy Rawle 22; 3 Watts 219; 1 Whart. 137; 2
Whart. 539.

Wright and Woodward, for defendant in error, cited 1 Penn.
Rep. 464; 12 Cons. Deb. 211; 6 Binn. 509; 3 Yeates 153; 2 Dall.
304.

The opinion of the Court was delivered by

GIBSON, C. J. It is proper, in limine, to say, that as no part of
the evidence has come up with the record except what is contained
in the bills of exceptions, we know not whether tender was made
before or after judgment, or whether the point propounded in the
first prayer arose in the cause at all. If it did not result from the
evidence, the judge might omit to charge on it; and as error is not
to be intended, we would have been bound, had he not noticed it,
to suppose that it had not a legitimate place in the cause. But he
did notice it, and gave the direction prayed for, with a very proper
qualification, that though the proceeding in the common pleas did
not furnish a justification of the trespass, it at least took away all
pretext for vindicatory damages. And the same may be said of
the second prayer, which was answered affirmatively, by directing
that if judgment had been entered on the verdict, if tender had



66 SUPREME COURT [Sunbury

[Harvey v. Thomas.]

been made in pursuance of it, and if the road had been constructed
according to the requisitions of the act, there would have been a
full and perfect defence; for from this, the jury must have inferred
that there could be no defence without the concurrence of all of
them. Besides, any omission on this head could do the plaintiff no
harm, for the jury actually found for him; and every thing beyond
that had relation to the quantum of the damages. On that ground
alone, an error, if there were one, would be immaterial.

The third prayer was properly rejected. Nothing in the statute
or in reason, requires a petitioner to be the owner of the land at the
entrance of the route into the public thoroughfare. It was not con-
templated that he should have a depot at the junction; and there
is neither reason nor enactment for the plaintiffs principle. The
road might, therefore, be lawfully laid on the ground which it oc-
cupies; and as to intrusion, there is no evidence legitimately before
us, nor is there any thing even in that which has been put upon
our paper books irregularly, to show that the defendant had occu-
pied any part of the plaintiff's ground on the pool, or prevented
him from using it as he pleased. The railroad was carried into the
stream on a platform; whence the coals were discharged by a
shute into boats lying parallel with the shore. What the interven-
ing space was, it is not material to inquire: the plaintiff's right of
exclusive possession extended not one inch beyond low water
mark, and if there was a trespass at all, it was committed on the
public. An unreasonable occupancy of the pool, might have sub-
jected the defendant to a prosecution for a nuisance; but as to the
plaintiff's right in it, the case stands on the principle of Shrunk v.
The Schuylkill Navigation Company, 14 Serg. 4* Ratvle 71. The
defendant might occupy any part of the stream without being
answerable to the plaintiff or any one else, for preventing boats
from coming to lie at the landing.

The most material point in the cause, is that which involves the
constitutionality of the statute on which the defendant's right is
founded; but it is one about which little need be said. If there is
an appearance of solidity in any part of the argument, it is that the
legislature have not power to authorize an application of another's
property to a private purpose even on compensation made, because
there is no express constitutional affirmance of such a power. But
who can point out an express constitutional disaffirmance of it?
The clause by which it is declared that no man's property shall be
taken, or applied to public use, without the consent of his represen-
tatives, and without just compensation made, is a disabling, not an
enabling one; and the right would have existed in full force with-
out it. Whether the power was only partially restrained for a rea-
son similar to that which induced an ancient lawgiver to annex no
penalty to parricide, or whether it was thought there would be no
temptation to the act of taking the property of an individual for
another's use, it seems clear that there is nothing in the constitution



July 1840.] OF PENNSYLVANIA. 67

f Harvey v. Thomas ]

to prevent it; and the practice of the legislature has been in accord-
ance with the principle, of which the application of another's
ground to the purpose of a private way, is a pregnant proof. It is
true that the title of the owner is not divested by it; but in the
language of the constitution, the ground is neverthless "applied" to
private use. It is also true, that it has usually, perhaps always,
been so applied on compensation made; but this has been done
from a sense of justice, and not of constitutional obligation. But
as in the case of the statute for compromising the dispute with the
Connecticut claimants, under which the property of one man was
taken from him and given to another, for the sake of peace, the
end to be attained by this lateral railroad law, is the public pros-
perity. Pennsylvania has an incalculable interest in her coal
mines; nor will it be alleged that the incorporation of railroad com-
panies, for the development of her resources, in this or any other
particular, would not be a measure of public utility; and it surely
will not be imagined that a privilege constitutionally given to an
artificial person, would be less constitutionally given to a natural
one.

The competency of the docket entry, the other part of the record
being lost, is incontestable. A part of a record may always be in-
troduced on proof that nothing which can be had remains behind;
and the proof of contents, to supply the place of the part lost, was
as clearly competent.

Judgment affirmed.



Lewis against Bradford,



The record of a deed, as contained upon the record book, brought into court
in the county to which it belongs, is legal evidence, as well as a certified copy
of it.

The fact of a tenant in possession and claiming title to land, surrendering that
possession and taking a lease from his adversary, will not be conclusive of his
right.

A power to sell land cannot be established by parol evidence, though a power
to lease for a term not exceeding three years may.

Quasre? Whether in an action of ejectment, it is competent for the defendant
to prove that he had made valuable improvements upon the land in controversy,
while in his possession, with the knowledge of the plaintiff, who made no objec-
tion.

One who is about to purchase land, is bound to regard information given to
him by one who was the agent of the vendor for renting the land, respecting the
title; for having received notice of a probable defect of title from such a source,
he would not be a bona fide purchaser without notice.



68 SUPREME COURT [Sunbury

[Lewis v. Bradford.]

ERROR to the common pleas of Bradford county.

This was an action of ejectment by Timothy H. Lewis against
William T. Bradford, for a tract of land in Monroe township, con-
taining 325 acres. The plaintiff, to maintain the issue on his part,
gave in evidence as follows:

That in 1791 the land in controversy was occupied as a sugar-
bush by one Jacob Bowman and one Stephen Strickland that they
continued so to occupy it for three years. In February 1794 one
Jacob Gibson moved on with his family, built a house, made sugar
and began to clear land that spring; cleared and planted about 5
acres with corn. Bowman, for some consideration, relinquished his
claim to Gibson; Gibson lived there a little over three years, and
in the spring of 1797, sold to William T. Mears; about a month
after he purchased, Mears sold to one Dogherty, who moved on the
land; at this time about 15 acres cleared a log house Dogherty
lived on it forsixor seven years and cleared a good deal he had from
30 to 40 acres cleared; built a saw-mill, a new log house, a shed,
log barn and hovels; he sold to Jacob Bowman for 600 dollars: the
clearing was in two pieces about 8 acres cleared up the Schrader
branch, as much as 20 rods of woods between them the clearing
extended up the Schrader branch, from the forks 60 or 70 rods, and
as much as 80 rods up the main branch Dogherty continued to
live on the land for some time after he sold to Bowman Bowman
occupied the said mill.

In March 1812, Bowman exchanged this land with one Daniel
Gilbert, for a lot of about 30 acres of flat on Towanda creek and
some other consideration. Gilbert moved on as soon as the ex-
change was made, and lived there two years, when he sold to
James Lewis, the father of the plaintiff, for 600 dollars, who pur-
chased the property for his brother William Lewis, whose money paid
for the farm. Gilbert moved away in January 1815, a little over a
year after he sold to Lewis one Schrader lived in one room of the
house; when Gilbert moved out he was put on by Lewis. Schrader
continued there until James Lewis moved on the land, which was
soon after. James occupied the farm and mill under his brother
William, until he died, which was about a year and a half after he
moved on. Timothy H. Lewis, the plaintiff, lived with his father
at that time, and continued there, with the family, for some time
until the ensuing fall Gilbert did not clear any land while he owned
the farm. He claimed ihe " Dogherty farm," lying between the
main creek and Schrader branch. Dogherty claimed 320 or 330
acres lying there, and had his claim surveyed twice, the first time
by one Stephen Bell, and the second time by Samuel Baird, the
agent for the Asylum company William Lewis sold to the plain-
tiff, Timothy H. Lewis, who paid his uncle for the property in lum-
ber. The plaintiff continued to live on the farm and occupy it until
about five years ago. The plaintiff built a new saw-mill on the



July 1840.] OF PENNSYLVANIA. 69

[Lewis v. Bradford.]

land soon after he purchased of his uncle, and made some other
improvements on the land.

And the said plaintiff's counsel then called as a witness C. L.
Ward, who testified, that he searched, with the due and proper
officer, in the commissioners' office of Luzerne county, and could
find no assessments of Towanda township; the officer said Mr
Williston had a package of assessments and they might be among
them. They searched faithfully.

Horace Williston Esq., one of defendant's counsel, being called
upon, alleged that he had not those assessments in his possession,
and admitted there was no tax assessed in Luzerne county for
either 1808 or 1810. Eliphalet Mason being sworn, testified that
he was the assessor of Towanda township for 1809, and assessed
the land in controversy to William Dogherty, but did not recollect
the number of acres, it was the triennial assessment.

Margaret Ingraham, the daughter of said Dogherty, inter alia,
testified, that her father was called on for taxes while he lived on
the land, but for what amount or what years she could not recollect.

And the said counsel further gave in evidence as follows, to wit:
June 25, 1773. A warrant to Samuel Clark for 300 acres of land
on the south side of Towanda creek, at the junction of a run with
the creek, to include a tree marked A B, that stands in the fork
about four miles from the river in the county of Northumberland.

Sept. 20, 1773. Receipt of Edmund Physic for purchase-money
of Samuel Clark, 24 pounds 15 shillings.

Sept. 24, 1803. Survey by T. Sambourne, deputy surveyor, of
325 acres and allowance, in the fork of Towanda creek, about five
miles from the N. E. branch of Susquehanna, &c., with a note
thereon that it interfered with a survey made for Amy Hooner.
Endorsed "No. 65," accepted 3d April, 1804.

Sept. 20, 1773. Deed poll from Samuel Clark to Samuel Pleas-
ants.

Febr'y. 17, 1775. Assignment, Samuel Pleasants to John M.
Nesbitt.

March 16, 1775. Assignment John M. Nesbitt to Charles Stew-
art. The plaintiff's counsel then called Samuel A. Collins, who
testified, that he married a granddaughter of said Charles Stewart,
that he died in 1800 leaving four children.

1. Mrs Martha Wilson, a widow, now living.

2. Mrs. Coltman then widow, afterwards married to one Strana-
han, since dead, leaving one son Ferand Stranahan. now living.

3. Mrs Mary Wilson, since dead leaving six children; it is said
they live in New Jersey I am not acquainted with them.

4. Samuel R. Stewart, since dead, leaving two sons, Charles
and Robert, now living.

And the said counsel then gave in evidence, as follows:

Jan. 25, 1824. Deed, Ferand Stranahan and wife to Martha
Wilson.

x. o



70 SUPREME COURT [Sunbury

[Lewis v. Bradford.]

Oct. 15, 1822. Deed, Charles S. Stewart to said Martha Wilson.

The said counsel then offered to prove by said William A. Col-
lins, that said Martha Wilson has, for a number of years back,
transacted the business of the estate of said Charles Stewart, by
selling lands, receiving the pay therefor, and doing all and every
act relating thereto, necessary and proper to be done, and that all
others, interested in said estate have uniformly acquiesced in and
confirmed all her said acts in the premises. Defendant's counsel
objected to all contained in the offer, except as to any transactions
relating to the lands now in dispute in this case, which objections
the court sustained, rejected the evidence, and at the request of
plaintiff's counsel, sealed a bill of exceptions.

The plaintiff's counsel then further gave in evidence as follows:

July 6, 1822. Letter of attorney from Martha Wilson to Jona-
than Stewart to sell lands, &c.

Feb. 23, 1828. Article of agreement, heirs of the late Charles
Stewart, by Jonathan Stewart, their agent to the plaintiff for the
consideration of 600 dollars.

And the said counsel for the plaintiff gave in evidence from the
assessment rolls of Bradford county, showing the land to have been
taxed in the names of Daniel Gilbert, James Lewis, William Lewis
and Timothy H. Lewis, from 1812 to 1834, inclusive.

And thereupon the defendant's counsel to maintain and prove
said issue on his part gave in evidence as follows:

July 30, 1784. Warrant to Amy Hooner for 300 acres of land
in Nittany valley, to include the north branch of Spring creek, about
three miles westward of land this day granted to Mary Hooner in
the county of Northumberland.

August 10, 1786. Survey of 306 acres and allowance on the
south side of Towanda creek in Luzerne county or Northumber-
land. Note thj land this warrant was originally intended for is
included in old surveys.

Jan. 2, 1788. This survey was returned.

Sept. 26, 1800. Patent to Stacy Potts, (except the recitals,)

Jan. 1, 1810. Deed from Stacy Potts to William Potts, George
Sherman, Joseph Potts and Stacy Potts, jun., for the consideration
of 600 dollars.

And the defendant's counsel then offered in evidence the record
book from the recorder's office of Bradford county, containing the
record of a deed dated March 18, 1837, from William Potts and
Ann his wife, Rebecca Sherman and others to the defendant, and
offered to read said deed in evidence to said jury therefrom. The
plaintiff's counsel objected to the record being read in evidence, and
the court admitted it to be read, whereupon the plaintiff excepted
to the opinion of the court; which said deed was then read in evi-
dence to the jury from said record book; and further proved, that
the return of survey so made for said Amy Hooner, would apply to
the lands in controversy.



July 1840.] OF PENNSYLVANIA. 71

[Lewis v. Bradford.]

And the said counsel for defendant, then further gave in evidence
the record of the circuit court of the United States for the district of
Pennsylvania, Richard Smith, lessee of William Potts et a/., v.
William Stiles, with notice to Daniel Gilbert in ejectment, entered
at September session 1817, or of November session 1816. Defend-
ant takes special defence for 200 acres or thereabouts, part of the
premises in question, &c ; verdict and judgment for plaintiff.

April 22, 1830. Scire facias post annum et diem against Daniel
Gilbert and tenants; returned served. April 18, 1832, judgment for
want of a plea. February 4, 1833, writ of habere facias posses-
sionem issued; returned, land delivered to plaintiff, &c.

And the counsel for defendant, then offered in evidence a deed,
dated February 20, 1833, from the plaintiff to William Potts et a/.,
granting them the privilege of maintaining the saw-mill dam, at the
end opposite the land in controversy, on other land of plaintiff, &c.,
to which evidence the plaintiff's counsel excepted, alleging the same
to be irrelevant; the execution of said deed being admitted, the
court admitted the evidence, and at the request of plaintiff sealed
a bill of exceptions.

The said deed was then read in evidence to the jury, and the de-
fendant's counsel further gave in evidence, a lease from William
Potts to Thomas Elliott, for the lands in controversy, the rent to be
paid to plaintiff as the consideration for the abovementioned con-
veyance, for the privilege of abutting said dam on lands of plaintiffs.

The counsel for defendant called as a witness one Thomas Elliott,
who, inter alia, testified, that Lewis occupied the land as a tenant
under Potts for two years, the rent for which he received or accepted
as the consideration for the deed for the dam privilege, instead of
the 200 dollars consideration, mentioned therein, by assent of said
Elliott; said Lewis agreeing to surrender peaceable possession to
Potts, on the expiration of his said term. He continued in possession
until the sale to Bradford, the defendant, when he surrendered it to
defendant. At the time possession was delivered to Potts, by the
marshal, the witness was in possession of the mill, &c., under an
agreement with Lewis.

William Keeler, being sworn, testified as follows:

Bradford called on me before he purchased. Lewis occupied the
premises till Bradford came to purchase. I had a partial care of the
property for Potts. I rented it to Lewis, verbally, for two years after
Elliott's lease expired, on the same terms. I settled with him for one
year, the other is unsettled. I settled with Potts for Lewis. Lewis
knew of Bradford's intention to purchase. My authority came



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