Steckel vs. Falkenstein,

pleted his scheme of partition showing purparts and their valuations, he should give notice thereof so as to afford an opportunity to the parties interested to file exceptions. If no exceptions are filed, or if filed, when disposed of by the master, he must file his report in Court. The report will then be confirmed nisi and notice thereof given by the Prothonotary as in other proceedings in Equity. When the Court has passed finally upon the report of the master and entered its decree, either party may appeal. The rule upon the parties to appear and bid over or choose or refuse the purparts at the valuation or show cause why same should not be sold emanates from the Court and is not granted by the master. The order for sale, if such order be necessary, is made by the Court.

In brief, all proceedings before a master, subsequent to the preparation of his report showing his scheme of partition and valuation of purparts, are. after such report is filed, under the immediate direction of the Court, and the several steps necessary to complete the proceedings, such as the rule to choose, the order for sale, when necessary, and the calculation of owelty by the master, are taken pursuant to orders of Court.

ORDER OF COURT.

And now, to wit, March 16th, 1915, this matter came on for hearing on exceptions to Master's report and on Master's petition and answer thereto, and was argued by counsel, and upon consideration thereof it is ordered that all proceedings subsequent to the valuation by the Master, of the several purparts, be and they are hereby vacated and set aside, and the cause is recommitted to the master, who is directed to proceed in the performance of the duties devolving upon him in accordance with this opinion.

Crider et al. vs. Crider et al.

Counsel Agreement to verdict--Consent of client-Opening of judgment.

Where a verdict is agreed to and entered by consent of counsel, it will not be set aside at the instance of the defendant where it appears that the defendant had been informed by her counsel that a settlement on the basis of the verdict was the best that could be secured and to which she apparently agreed, and when it further appears that no more advantageous result could be obtained for the defendant if the case should be submitted to a jury.

Rule to open judgment. No. 3 July Term, 1871. C. P. Allegheny County.

John E. Winner and John N. English, for plaintiffs.

Geo. O. Calder, Walter S. Lobingier and Geo. J. Campbell, for defendants.

MACFARLANE, J., January 12, 1915.-On May 20, 1914, this case was on the daily trial list, a jury was sworn and directed by the court to render a verdict in accordance with the agreement of the parties and the verdict was for the plaintiffs for the undivided ten-elevenths of the land described in the writ. The agreement for so taking the verdict was, "The above verdict agreed to, John E. Winner, John N. English, Attorneys for Plaintiffs; R. B. Petty & Sons, Attorneys for Defendants."

On November 30, 1914, Ella B. Crider presented a petition in which she alleges that she is the defendant and owner of the fee simple title of the real estate described in the writ, William H. Crider having died January 12, 1914, and before his death having made a conveyance to her through a third person. That she was not notified that the case was set for trial and had no opportunity to defend it or to produce witnesses in court, that she did not agree to any verdict or authorize any person, particularly R. B. Petty & Sons, to consent to the verdict and charges collusion and fraud for the purpose of

Crider et al. vs. Crider et al.

ousting her from her title. She also avers that Petty & Sons were not attorneys or authorized to appear as attorneys for all of the defendants against whom the verdict was taken.

She states that her husband was an heir and devisee of Henry Crider and was with her in open, notorious, hostile possession of the real estate from the death of Henry Crider on January 6, 1851, until the death of her husband.

This action was brought April 21, 1871, against William H. Crider, the plaintiffs claiming in their abstract that Henry Crider, their ancestor, died seized of the premises intestate. The defendants' abstract claims title under the will of Henry Crider in Will Book 7, page 82, and also sets up the statute of limitations. The will of Henry Crider does not devise the property to William H. Crider and it is a plain case of intestacy as to this real estate. The action was brought within twenty-one years of the date of the death of Henry Crider, so that there could not be a claim of title by adverse possession. On June 17, 1908, John F. Edmundson, Esquire, attorney for the defendants, placed the case on the issue docket. On March 22, 1913, E. R. Edmundson, Esquire, entered his appearance for the defendant.

The defendant having died a rule was taken on March 25, 1914, on his heirs to show cause why they should not be substituted as defendants and on March 31, 1914, Ella B. Crider, the petitioner, accepted service. She contends that she did not know the nature of the paper and most of the testimony was directed to this. She did sign it and her claim that she was not told what it was is preposterous, but it is "much ado about nothing" because she immediately consulted William F. Petty, Esquire, of the firm of R. B. Petty & Sons, and employed him. She admits over and over that Mr. Petty was employed and there is no question that he examined the record and acted as her counsel. The charge that there was fraud and collusion is absolutely unsupported.

On April 18, 1914, Mr. Petty presented Mrs. Crider's petition and obtained a rule on the plaintiffs to show cause why a judgment of non pros. should not be entered. An answer was filed and the rule discharged. This action was taken by him after he had advised Mrs. Crider that she had no claim under the will and that the most she could expect would be one-tenth or one-eleventh of the property. On April 8th he wrote her and she received the letter and knew its contents. In this he told her plainly that Henry Crider died intestate as to these twenty acres and that the defendant would take the share of Matilda Crider and he also advised her that unless she could locate the deed to herself her interest would not amount to very much.

She was informed by Mr. Petty that her only hope was in the rule for non pros. and that having failed she had best consent to a verdict so as to clear up the title. She did so consent.

Her petition and her testimony showed either great forgetfulness or a disregard of consistency in her statements. It is full of contradictions and unreliable and against the plain probabilities of the case.

We have no hesitation in finding that the verdict was properly taken by authority.

The only reason assigned for opening and setting aside the verdict and judgment is so that the case may be tried by a jury. There is no attempt made to show that it would result in any different way. Even if she found the deed to herself so that she would be the sole defendant, she could not show title by possession for the action was brought within twenty-one years. It is a fundamental rule that judgments will not be opened where there is not a valid defense and this applies to this verdict.

January 12, 1915, rule discharged.

Baltimore & Ohio Railroad Company vs. Black.

Railroads Use of water-Prescription.

Where a railroad company, for more than twenty-one years, has used continuously, exclusively, and without interruption, all the water of a stream that would flow through a 4-inch pipe line, for the supply of the company's locomotives with water, a conclusive presumption of a right in the company to so use the water of the stream has arisen..

And where, thereafter, by the oral permission, and with the assistance and encouragement, of the then owner of the land over which the stream flows and across which the 4-inch pipe line has been maintained, the 4-inch line is taken up by the railroad company and replaced at great expense with a 6-inch line running to a point further up the stream, following which large expenditure of money are made by the railroad company in the construction of new water tanks and pen-stocks, an irrevocable parol license for the use of the water through the larger pipe line inures.

Subsequent purchasers of the land, with actual knowledge of the use being made of the water by the railroad company, and with evidence on the ground of the existence of the pipe line, take the land cum onere, and will be restrained by injunction from tearing up the pipe line or in any manner interfering with the accustomed use of the water by the railroad company.

Bill in equity for an injunction. No. 22 Equity Docket, 1910. C. P. Somerset County.

Koontz & Ogle, for plaintiff.

Francis J. Kooser, Ernest O. Kooser and E. E. Kiernan, for defendants.

VAN SWEARINGEN, J., specially presiding, July 21, 1914.-This case is before the court on a motion to continue and make permanent a preliminary injunction heretofore awarded, restraining the defendants from tearing up a pipe line across a tract of land in Summit township, Somerset county, owned by the defendants, by means of which pipe line the plaintiff company conveys water from a stream on said land to certain water tanks on a railroad right of way of the plaintiff, for the supply of plaintiff's locomotives. The case heretofore has been before three different judges. The bill was addressed to the Hon. Francis J. Kooser, then president judge of Somerset county, before whom also a part of the testimony was taken, but whose term of office has expired, and who now is the leading counsel for the defendants. The remainder of the testimony was taken before the Hon. Allison O. Smith, president judge of Clearfield county, specially presiding, to whom the matter was submitted for decision, but whose term of office expired without an opinion or decree having been filed. The case then came before the Hon. William H. Ruppel, now president judge of Somerset county, who, on account of having been professionally connected with the case before going on the bench, has stated his disqualification to preside. We have been asked, therefore, to take the papers and dispose of the matter. From the pleadings and evidence on file, we find the facts, in so far as material to a determination of the issues involved, to be as follows:

1. The plaintiff, the Baltimore & Ohio Railroad Company, a corporation chartered under the laws of Maryland, is the lessee and operator of the Pittsburgh & Connellsville Railroad, extending from Pittsburgh to Cumberland, and running through Somerset county, Pennsylvania.

2. On July 29, 1853, prior to the construction of the Pittsburgh & Connellsville Railroad, Solomon Yoder, who then was the owner of the tract of land now owned by the defendants, in Summit township, Somerset county, executed a deed to the Pittsburgh & Connellsville Railroad Company, granting to said company a right of way over said land for the construction of a railroad, which deed also contained the following clause: "Together with the right of way over said tract of land belonging to me sufficient to enable said company to conduct and carry water by aqueduct and pipes and the right to make proper drains."

Baltimore & Ohio Railroad Company vs. Black.

3. In the year 1871, during the ownership and occupancy of said land by the said Solomon Yoder, the plaintiff constructed a 4-inch cast iron gravity pipe line from a point on a stream of water on said land, about 1,000 feet from said railroad right of way, down through said land to a point known as Yoder station, on said right of way, about 500 feet from where the stream in its natural course crossed said right of way, where the plaintiff constructed a 35,000-gallon water tank, which received the water carried through said pipe line from said stream, from which to supply the plaintiff's locomotives with water, for which purpose and through which pipe line the plaintiff continued to use said water for a period of about 27 years, or until the year 1898. 4. Upon the death of Solomon Yoder in the latter part of the year 1871, the title to said tract of land, by proceedings in partition, vested in Jacob Yoder, who, on April 19, 1886, conveyed the same to Hiram P. Walker, by whom, on April 1, 1896, it was conveyed to Jared Walker.

5. In 1898, during the ownership and occupancy of said land by Jared Walker, and with his oral permission, the plaintiff removed said 4-inch pipe line and substituted in lieu thereof, at a cost of about $1,400, a 6-inch pipe line, extending to a point about 400 feet further up said stream, where a new intake dam was constructed to turn the water into the pipe line. The said Jared Walker aided and assisted the plaintiff in removing the old line and in the work of laying the new one, and furnished boarding to plaintiff's employees while said work was being carried on. Following the completion of the new pipe line the plaintiff erected on its railroad right of way two new water tanks, each of 50,000 gallons capacity, at a cost of about $1,400 each, and two water pen-stocks, each at a cost of about $500, which new tanks since have been supplied with water from said stream through said new pipe line, for the use of the locomotives of the plaintiff.

6. On December 31, 1901, Jared Walker conveyed said land to Frank B. Black, one of the defendants, who, on March 7, 1903, conveyed the same to his wife, Flora S. Black, the other defendant, on both of which dates there was evidence on the ground of the existence of said pipe line and intake dam, and on each of said dates the defendants had actual knowledge of the use being made of the water by the plaintiff.

7. On October 3, 1910, the said Frank B. Black wrote to C. L. French, superintendent of the plaintiff company, as follows: "I have consulted Mrs. Black and have come to the conclusion that I shall tear out your dam on the stream of water that crosses her property near Garrett, and that supplies your water tank there, unless you voluntarily remove the obstruction to the stream on or before the 10th day of this month."

8. At the time the bill in this case was filed, on November 21, 1910, the plaintiff company had been using in its locomotives the water from said stream in the manner stated for a period of nearly 40 years. During the whole of that period, first through the 4-inch line and later by means of the 6-inch line, and as to all the water of the stream that would flow through these lines, respectively, the plaintiff's use of the water was continuous, uninterrupted and exclusive.

As shown by our findings of fact, the plaintiff, in 1898, at the time the 4-inch pipe line was replaced with the 6-inch line, had been using continuously, exclusively and without interruption, for more than 21 years, all of the water of this stream that would flow through a 4-inch line. Therefore a conclusive presumption of a right in the plaintiff to so use the water of the stream had arisen prior to that time. "It is well settled that if there has been an uninterrupted, exclusive enjoyment, above 21 years, of water, in any particular way, this affords a conclusive presumption of right in the party so enjoying it, and this is equal to a right by prescription." Strickler vs. Todd, 10 S. & R., 63; Messinger's Appeal, 109 Pa., 285; Irving vs. Media Borough, 10 Pa. Superior Ct., 132. The oral permission given to the plaintiff by Jared Walker, in 1898, to take up the 4-inch line and replace it with a 6-inch line

Baltimore & Ohio Railroad Company vs. Black,

running to a point further up the stream, not to mention Walker's aid, assistance and encouragement in the enterprise, constituted a parol license, which, when followed by the expenditures of the plaintiff in laying a new line and constructing its new tanks and pen-stocks, became irrevocable. "While a mere license without consideration is determinable at the pleasure of the licensor, that is not the rule in Pennsylvania where the enjoyment of the license must necessarily be, and is, preceded by the expenditure of money. In such cases the license becomes an agreement on a valuable consideration and is irrevocable." Harris vs. Brown, 202 Pa., 16; LaFevre vs. LaFevre, 4 S. & R., 241; Rerick vs. Kern, 14 S. & R., 267; Swartz vs. Swartz, 4 Pa., 353; Ebner vs. Stichter, 19 Pa., 19; Pierce vs. Clelan, 133 Pa., 189; Willis vs. Erie City Passenger Railway Company, 188 Pa., 66; Livingood vs. Stauffer, 31 Pa. Superior Ct., 501. "A party by whose encouragement expenditures have been made to such an extent as to be incapable of reimbursement except by enjoyment, will be enjoined from disturbing the possession; he is estopped because he would wrong the party by withdrawing his consent." Big Mountain Improvement Company's Appeal, 54 Pa., 361. "This is so, although the encouraging party acted in ignorance of his rights." Schuey vs. Schaeffer, 130 Pa., 22. The same is true in ejectment, where one who by positive acts has induced another to purchase land of which he himself is the true owner, even though he acted in good faith and in ignorance of his own rights. Putman vs. Tyler, 117 Pa., 570. A parol license, when executed, is binding upon all subsequent purchasers of the lands affected, and is irrevocable by the licensor or those claiming title to the lands under him. McKellip vs. McIlhenny, 4 Watts, 317; Thompson vs. McElarney, 82 Pa., 174. It has been held that "where a person uses water from a spring on the land of another under a parol license, and it appears that after the license was given to him he laid pipes to his own land, built a house thereon, and used the water for eighteen years, the successor in title to the owner of the spring with knowledge of the license, has no right to deprive the licensee of the use of the water," in connection with which it was said that "a license may be converted into what is in effect an easement, not upon the principle that the right passes by the parol agreement, but that whenever one party has in part executed it by payment of money, taking possession and making valuable improvements, the conscience of the other is bound to carry it into execution, and equity will compel him to do it." Moore vs. Neubert, 21 Pa. Superior Ct., 144. It has been held also that "when a license is granted to take and occupy land and a creek running on such land, which has been accepted in good faith, money laid out and expended to erect a water tank and reservoir, and pipes laid to conduct water to the tank, and occupied for a long period of time for the purpose intended by the grantor, an injunction will be granted to prevent the revocation of such license by force." Delaware, Lackawanna & Western Railroad Company vs. McNeal, 4 Luz. Leg. Reg., 47. "It is well settled that where a continuous and apparent easement or servitude is imposed upon land, a purchaser of the servient property in the absence of an express reservation or agreement on the subject takes the property subject to the easement or servitude." Friend vs. Oil Well Supply Company, 179 Pa., 290. See also Eshleman vs. Parkersburg Iron Company, 235 Pa., 439. When the defendants purchased the land in the present case they took it cum onere. We therefore reach the following conclusions of law:

1. The plaintiff has acquired the legal right to use the water of the stream crossing the lands of the defendants in the manner in which plaintiff has used said water heretofore, and the defendants are estopped from in any manner interfering with said use of said water by the plaintiff.

2. The plaintiff is entitled to the injunction prayed for in the bill. And now, July 21, 1914, it is ordered, adjudged and decreed, nisi, that a permanent injunction be and the same now is awarded, enjoining and restraining the defendants, their servants, agents and employees, from tearing