(113 A.) PHILIP HAIBACH CONTRACTING CO. v. HORNUNG. ing of the trial court against defendant's claim of adverse possession for 21 years was unsupported by evidence. (Supreme Court of Pennsylvania. April 18, 3. Appeal and error 1921.) on PER CURIAM. Plaintiff appeals from the dismissal of its rule for judgment for want of a sufficient affidavit of defense. We have frequently held and recently repeated that, unless we can say the action of the court in refusing judgment rules of this character is clearly erroneous and free from doubt, its order will not be disturbed. Brown et al v. Unger et al., 112 Atl. 531 (not yet [officially] reported). Testing the pleadings in this case by that rule, we are not convinced the action of the court below should be disturbed. The judgment is affirmed. McILVAINE v. POWERS et ux. 1011(1)-Findings by trial court involving credibility of witnesses given effect of verdict. The findings of fact by a judge which involve the credibility of witnesses will be given the effect of a verdict on appeal, and not disturbed where there is testimony to support them. Appeal from Court of Common Pleas, Philadelphia County; Charles B. McMichael, Judge. Suit in equity by Harry McIlvaine against WALLING, Owen J. Roberts, of Philadelphia, for appellee. SIMPSON, J. Plaintiff filed a bill in equity averring he was the owner in fee of the bed of an alley, which defendants, his next door neighbors, wrongfully claimed they had the right to use, and, in the exercise of this alleged right, had broken down the fence between it and their property, had ejected plaintiff from the alley when he protested against their use of it, and proposed to continue its use unless enjoined from so doing. Defendants admitted the facts and claimed a right to use the alley. A decree was entered in favor of plaintiff, and defendants prosecute this appeal. Among the findings of fact by the trial judge, sustained by the court below, are the following: The houses on the two properties were erected at the same time, and the common ownership thereof continued until April 23, 1868, when they were conveyed to different persons, one of whom was plaintiff's predecessor in title, and the other defendants'. The alley is entirely upon plaintiff's property. It is not referred to in any of the deeds (Supreme Court of Pennsylvania. April 18, in the chain of title of either party, though 1921.) 1. Appeal and error 589-Limit of claim in statement of question is binding on appellants. The limitation placed by appellants upon themselves in the statement of the question involved on appeal is binding upon them. * * in all of them is the general grant of "alleys"; there being another in the rear of and used by both properties. "Prior to the year 1877 there is no evidence as to either permission to use or objection to the same. Between the years 1877 and 1904 there is no evidence of express permission, but the use of the alley by the tenants of [defendants' property] was permissive, and at any rate it was not adverse, and hostile." "From In a suit to enjoin the use by defendants of that time on express permission an alley upon plaintiff's premises which had was given to the tenants of [defendants' propbeen originally owned by the same owner as defendant's adjoining premises, evidence of the erty] to use the alley," so far as it was used use of the alley by defendants and their pred-by them, though at times they were wholly ecessors in title held not to show that the find- excluded therefrom by plaintiff and his pred 2. Easements 36(3)-Evidence held to show finding against adverse possession of alley upon plaintiff's premises was proper. * * * For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ecessors in title fastening the gate leading into plaintiff's property, and it continued into defendants' property. “That there had not been any open, notorious, and adverse use of the aforesaid covered alley, or any denial of any rights therein of the plaintiff or his predecessors in title by the defendants or their predecessors in title and their tenants, for any period of 21 consecutive years prior to the filing of the bill in this case," and "at no time was the use adverse or hostile and it was not continuous." [1] Some of these findings are assigned as error; but, in the statement of the question involved, appellants limit themselves to the claim that their predecessors in title had "the free and uninterrupted use of [the] alley for 27 years," from 1877 to 1904, and since this limitation is binding upon them here (Philadelphia v. Ray, 266 Pa. 345, 109 Atl. 689; New York & Penna Co. v. New York Central R. R. Co., 267 Pa. 64, 110 Atl. 286), it is not necessary to consider separately the thirty-one assignments of error. [2] Restricting ourselves, therefore, to the period between 1877 and 1904, we find but three witnesses testified regarding the use of the alley during that period. One of them said that from 1877, when he was 12 years old, he used the alley during 6 or 7 years to visit his playmates in each property, and that the alley gates opening therefrom were never closed. He does not say how often he used the alley, or whether by permission or otherwise; and since neither he nor his parents owned or lived in either house, his testimony is of little value in solving the question at issue. Another, who was a daughter of a former owner of plaintiff's property, and moved thereon about 1879, when she was 2 years old, and left when she was 21, says she never saw nor heard of the gate into defendants' property being nailed up; that she went "quite often" from her father's yard to that now owned by defendants, and we "never had any question with any of our neighbors. We were always friendly." But she could not tell how old she was when she first remembered the gate, could not say if it was there in 1884, or whether it was opened at that time simply as a friendly act for their then neighbors. Nor does she tell of any user by defendants or their predecessors in title or by any one other than herself, and she, as a daughter of the owner of the alley, had a right to use it. The third was the mother of the last witness. She says the gate into defendants' property was already there in 1877 when she and her family moved there during the succeeding 30 years; that it was never locked, and was used by the occupants of defendants' property during that period, without any disturbance regarding it; that its use was not discussed; that when they sold to plaintiff she told him that “if anybody should be disagreeable and a nuisance, Mr. Ulmer says you could fasten the gate up if you wanted to, but we never had any trouble"; that this was her understanding of the right existing in the owner of plaintiff's property, but they never had occasion to object to the use; she remembered on one occasion being asked by an occupant of defendants' property to be allowed to use it, and gave permission to him and also, at other times, to other tenants; the others, however, did not ask permission, but she told them the "alleyway was for the use of both parties * as long as there was no trouble." She does not say how often it was used, and it is evident from her testimony, which was somewhat confused and contradictory, probably because of her advanced years, that there was ample from which the court could find that such use as was made by defendants' predecessors in title, or their tenants, was permissive and not adverse; and in any event it does not compel the conclusion that defendants had successfully sustained the burden of proof of showing open, notorious, adverse, and continuous possession for 21 years consecutively by any one connected with defendants' property, especially when taken in connection with the other findings above referred to, and the fact that the trial judge had the benefit of seeing the last-mentioned witness, and could, therefore, best judge what credence, if any, should be given to her varying statements. [3] It is clear, therefore, we could not reverse the court below on this vital point without doing violence to our oft-expressed rule that "The findings of fact by a judge, which involves the credibility of witnesses and the weight to be given their testimony, will be given the effect of a verdict of a jury, and they will not be disturbed where there is testimony to support them." Cruzan v. Cruzan, 243 Pa. 165, 89 Atl. 876; Shimer v. Aldine Trust Co.. 264 Pa. 444, 107 Atl. 782; Gongaware's Estate, 265 Pa. 512, 515, 109 Atl. 276. -and this we are not willing to do. The decree of the court below is affirmed, and the appeal is dismissed, at the cost of appellants. (113 A.) are classified with them, and, this being in the SHAFFER v. PUBLIC SERVICE COMMIS- nature of a pronouncement of public policy SION et al. by the Legislature along lines of expediency, the courts are bound thereby, at least so long (Supreme Court of Pennsylvania. April 18, as the legislative attitude continues." 1921.) Telegraphs and telephones 22-Telephone company should surrender telegraph rights before applying for permission to merge. Subsequently, the act of 1919 was passed, which departs from the previously existing legislative policy and puts telephone comA telephone company, incorporated under panies in a separate class, giving the right the act for chartering telegraph companies, to such companies, previously chartered as which desires to take advantage of Act July 22, telegraph companies, to accept the benefits of 1919 (P. L. 1123), providing for the incorpora- the act. After the passage of this legislation of telephone companies and to secure from tion, the Cochranton Company once more apthe Public Service Commission permission to plied to the Public Service Commission for merge with a competing telephone company, approval of the before-mentioned merger, should, before applying to the Public Service which it obtained upon showing an acceptCommission for the certificate of public impor-ance of the act. The matter then again came tance, obtain from the court of common pleas a decree authorizing it to surrender its rights as telegraph company as provided by Act April 9, 1856 (P. L. 293). on appeal to the Superior Court. (Shaffer v. Public Service Commission, 74 Pa. Super. Ct. 597), which tribunal sustained the validity of the act of 1919, and held that, since the Appeal from Superior Court; William H. Cochranton Company had duly accepted the Keller, Judge. Supplemental opinion. Judgment of the Atl. 877. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ. John A. Northam, of Meadville, for appel lant. Frank J. Thomas, of Meadville, for appel lees. PER CURIAM. This is an application by the Cochranton Telephone Company for the approval of a surrender of its charter rights as a telegraph company, so that it may take advantage effectively of the act of July 22, 1919 (P. L. 1123), in the matter of the purchase by it of a competing line. act, it thereby lost, "by necessary inference, the rights, privileges, and immunities" previously enjoyed by it as a telegraph company "as well as the disabilities which were inseparably annexed" to it as such a corporation; but, when the case reached us (268 Pa. 456, 458, 111 Atl. 877), while aflirming the decision of the Superior Court, we did so "upon condition that the Cochranton Telephone Company proceed forthwith to surrender [formally] all of its charter rights as a telegraph company" and file a "proper certificate" to that effect in this court. Thereupon the corporation filed a certificate, in the form of an affidavit, averring a set of resolutions which recite, inter alia, its surrender of charter rights as a telegraph company. On consideration we entered an order to this effect: "It not appearing that the Cochranton Telephone Company has obtained a decree, as provided by the act of April 9, 1858 (P. L. 293). authorizing it to surrender its rights as a telegraph company, it is adjudged that the within certificate is insufficient." The matter first came before the courts in Cochranton Telephone Co. v. Public Service Commission, 70 Pa. Super. Ct. 212, where an order of the Commission refusing to permit the proposed merger was approved. An ap- The Cochranton Company has now filed an peal was taken to this court, and in Cochran-affidavit with us averring that it had duly ton Telephone Co. v. Public Service Commis- proceeded, under the act of 1856, in the court sion, 263 Pa. 506, 107 Atl. 23, we held, as shown by the syllabus to the report of the case: of common pleas of Crawford county, and secured a decree showing a surrender and extinguishment of all its charter rights as a telegraph company; a copy of the formal order of the court to that effect being attached as an exhibit. (1) That "the Pennsylvania statutes and constitutional provisions relative to the consolidation of telegraph companies are applicable to telephone companies, and therefore a We have set forth the foregoing proceedmerger of telephone companies owning compet- ings in full, so that the steps necessary to be ing lines violates article 6, § 12, of the Consti- taken by telephone companies which desire tution, providing that 'no telegraph company to gain the full benefit of the act of 1919 shall consolidate with or hold a controlling interest in the stock or bonds of any other tel- may be placed on record; but we suggest that egraph company owning a competing line'"; in future cases like the one at bar the proand (2) that "telephone companies in Pennsyl- ceedings in the common pleas to surrender vania, existing only under statutes providing telegraph company rights should be taken for the incorporation of telegraph companies, before the certificate of public convenience is For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes granted, and, when such surrender is permitted, due proof thereof should be made to the Public Service Commission; or, if in any case it is deemed more expedient, the order granting the certificate of public convenience may be made conditional on a decree being obtained under the act of 1856 and proof filed with the Commission. Joseph P. Gaffney, of Philadelphia, for appellant. E. Clinton Rhoads, of Philadelphia, for appellees. SCHAFFER, J. The facts essential to a proper understanding of this case are these: Plaintiffs held a judgment against John M. And now, April 18, 1921, it is adjudged White, whose wife died seized of an undividthat the condition attached to our affirmance ed interest in certain real estate, leaving of the judgment of the Superior Court ap- him and two minor children surviving. He proving the order of the Public Service Com-and other parties in interest joined in an mission, granting a certificate of public convenience to the Cochranton Telephone Company, allowing it to acquire the property, rights, franchises, etc., of the Merchants' and Farmers' Telephone Company, has been properly complied with, and the judgment in question is affirmed absolutely. RAMBAUT et al. v. WHITE (BAUER, (Supreme Court of Pennsylvania. April 18, 1921.) agreement to. convey the property, subject to the approval of the orphans' court, and subsequently the orphans' court authorized the guardian of the minors to join in the sale. White signed a paper attached to the petition for authority to sell, in which he stipulated that he, without consideration, would join in the execution of the deed to the purchaser. With matters in this shape, and before the deed was executed, plaintiffs issued a foreign attachment on their judgment and White's interest as tenant by the curtesy in the real estate was attached. The question for solution is whether White, at the Curtesy 12(6)-Attachment held to reach time of the issuance of the writ, had any incurtesy interest in land. Where judgment debtor, who was tenant by the curtesy in real estate, agreed to convey the property, and the orphans' court authorized the guardian of minor children to join in the sale, and judgment debtor signed a paper attached to the petition for authority to sell, in which he stipulated that he would join in the execution of the deed to the purchaser, he still retained his curtesy interest, which was subject to attachment, no actual release of his interest having been effected, and only a small part of the consideration money having been paid, and no deed having been delivered to the intending purchaser. Appeal from Court of Common Pleas, Philadelphia County; Charles B. McMichael, Judge. terest in the property which could be attached. Appellant contends that, since the writ did not issue until after White had joined in the agreement of sale and signed the petition to the orphans' court, he, by agreeing to surrender his curtesy without consideration, in effect released his estate to his children, and so completely divested himself of all interest as to leave nothing which the attachment could reach; but with this we cannot agree. No actual release of his interest was executed, and, at the time the attachment was levied, only a very small part of the consideration money had been paid, and no deed had been delivered. Under the circumstances here appearing, White's interest in the land still remained in him, and therefore was as Action by Thomas D. Rambaut and anoth- much bound by the attachment as it would er against John M. White, in which Fred-have been had he not executed the agreement erick W. Bauer, guardian of the estate of Mary White and Susan White, minors, intervened. From judgment for plaintiff, the intervening defendant appeals. Affirmed. of sale or joined in the orphans' court pro- Argued before MOSCHZISKER, C. J., For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (113 A.) BOROUGH OF TOWANDA v. MINGOS et al. (Supreme Court of Pennsylvania. April 18, 1921.) Indemnity 13(2)-Borough held entitled to recover from abutting owners amount of judgment paid for injuries to pedestrian on sidewalk. A borough was entitled to recover from abutting owners the amount of a judgment recovered from the borough by a pedestrian injured on a walk, where the injury occurred by reason of defective plank used by the abutting owners in constructing a temporary walk on request of the burgess, who desired that barriers placed be taken away, the use of the defective plank thereafter in constructing the walk being the proximate cause, and not the removal of the barrier, defendant's defense being that the negligence of the borough was as great as, or greater than, that of the abutting owners. Appeal from Court of Common Pleas, Bradford County; William Maxwell, Judge. Action by the Borough of Towanda against John S. Mingos and another. Judgment for plaintiff, and defendants appeal. Affirmed. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ. Joseph W. Beaman, of Towanda, for appel lants. J. Roy Lilley, of Towanda, for appellee. PER CURIAM. Towanda borough, plaintiff, having paid a judgment obtained against it by Jessie D. Brennan, in an action of trespass for injuries received by her from a fall on a sidewalk, brought this suit to recover over against Mingos and Van Horn, owners of the abutting land. The walk where the accident occurred was constructed over a depression in the ground, and supported by trestling; during certain building operations on defendants' property, in the summer of 1914, they erected barriers to keep the public off; this condition continued until about Friday, September 4, 1914; on the evening of that day, F. J. Kingley, burgess of the borough, went to the premises, and found both Mingos and Van Horn there; he told one of them that, the following Monday, Labor Day, it was proposed to have a celebration on the street in front of their property, and he wanted, or would like to have, the walk "fixed up," temporarily, for use by the public; the sidewalk in question had to be replaced, so defendants decided to lay it in such manner as to furnish a form which could subsequently be employed in the construction of a concrete pavement; they accordingly lowered the supports, relaying the walk about five inches below its previous level, and on Labor Day it was in public use; on the evening of that day, September 7, 1914, while Mrs. Brennan was passing over the place of the accident, a plank broke beneath her, and one foot and leg went through the aperture; she was thrown violently, sustaining the injuries for which she afterwards recovered against the borough, and for the payment of which the latter was allowed to recoup itself in the present action. The trial judge instructed the jury that plaintiff was entitled to a verdict, which was rendered accordingly, and this appeal is by defendants from a judgment thereon. Appellants contend that, if negligence existed, the borough actively participated therein by requesting defendants to "fix up" and open the walk to the public for an occasion when it would be subjected to special strain; that without this request it would have remained barricaded, and the public would have been excluded until the concrete pavement was laid; second, if there were defective supporting planks, a commissioner had actual knowledge thereof, and the burgess had "looked the premises over," therefore, the negligence of the borough was, under the circumstances, as great as, or greater than, that of the property owners. The court below was right in holding "de- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |