Schenkel vs. Schenkel.

the question of the validity of that assignment, and, as I said before, if the plaintiff wanted that question determined so as to effect the distribution of the fund in the hands of the guardian as determined by the Orphans' Court, she must go into that Court to have that question determined.

And now, November ...., 1914, this cause came on to be heard on demurrer to plaintiff's bill, and upon consideration thereof, the demurrer is sustained.

In re Bonus on Capital of Purchased Corporations.

Corporations--Capital Stock-Bonus-Act of March 11, 1911, P. L. 145, Section 16.

A corporation should not be required to pay a bonus on increased capital stock representing the franchises and properties of other corporations purchased by it, and upon which a bonus had already been paid. The 16th section of the Act of March 11, 1911, P. L. 145, provides a method for such settlement and adjustment. OFFICE OF THE ATTORNEY GENERAL,

I have your favor of the sixth instant with reference to the settlement of bonus on capital stock of the Conewago Gas Company. From your letter I understand the facts to be as follows:

The Conewago Gas Company was incorporated with a capital stock of $5,000.00 on which it paid bonus. In the month of January, 1913, it increased its capital stock to $300,000.00 and on January 30, 1913, paid $983.34 bonus on the increase.

During the same month the company bought the franchises and properties of three other gas companies which had paid bonus on a total capitalization of $85,000.00, and notice of these acquirements was filed in the office of the Secretary of the Commonwealth on January 24, 1913. On December 29, 1913, or one month less than a year after bonus amounting to $983.34 had been paid on the increased capital stock, the Conewago Gas Company filed in your office a petition asking, in effect, for a re-settlement of the bonus so as to allow credit to the amount to $283.34 for bonus paid on the three other gas companies, the properties and franchises of which It had acquired as above mentioned.

On June 24, 1914, a credit settlement was made, and on the books of the Department of the State Treasurer it appears that the company has a credit balance of $283.33.

The Conewago Gas Company has asked that this credit balance $283.33 on its bonus account be applied on its capital stock tax account. You inquire, first, whether the settlement of June 24, 1914, was lawful, having been made after one year from the date of payment of bonus on the increase; second, whether such re-settlement was properly made and the Gas Company is entitled to have the balance thus to its credit applied on its capital stock tax account.

The Act of April 17, 1876, P. L. 30, Section 5 (p. 33), amending the general corporation Act of 1874, provides:

*

* "It shall be lawful for any corporation in the same manner to sell, assign, dispose of and convey to any corporation created under or

In re Bonus on Capital of Purchased Corporations.

accepting the provisions of this Act, its franchises and all its property, real, personal and mixed, and thereafter such corporation shall cease to exist and the said property and franchises not inconsistent with this Act shall thereafter be vested in the corporation so purchasing as aforesaid."

This Act was construed by the President Judge of the Court of Common Pleas of Dauphin County in the case of Commonwealth vs. Consolidated Telephone Companies, 41 Pa. C. C., 17, and Commonwealth vs. Matheson Automobile Company, 41 Pa. C. C., 20, to relieve the purchasing company of paying bonus so much of the increase of capital stock as had already been paid to the Commonwealth by the corporations whose franchises and properties were purchased by such increase. These cases were not appealed by the Commonwealth, and until reversed should be followed by the Department.

I am, therefore, of the opinion that the Conewago Gas Company should not have been required to pay bonus on $85,000 of increase representing the capital of the franchises and properties of the gas companies purchased by it on which bonus had already been paid.

The Act of March 31, 1811, P. L. 145, Section 16, provides as follows: "That the Auditor General and State Treasurer at the request of each other, or of the party, shall revise any settlements made by them except such as have been appealed from, or which by any other proceedings have been taken out of their offices, if such request be made within twelve months of the date of settlement; but after that time no settlement on which a final discharge has been granted shall be opened, but the same shall be quieted and finally closed."

While the credit settlement was not made until June 24, 1914, the request for the same was made on December 29, 1913, or one month less than twelve months after the payment of the bonus on increase on January 30, 1913. The Act of 1811 does not require that the settlements shall be revised within twelve months, but that the request for such revision be made within twelve months. The request in this case was within the time fixed by the Act of 1811 and it was, therefore, entirely lawful for you and the State Treasurer to make the settlement asked for.

I am of the opinion that the credit settlement as appearing on the books of your Department and the State Treasury, is in accordance with the law laid down by the President Judge of the Court of Common Pleas of Dauphin County. This being so, it will be entirely proper for you to aliow a transfer of the credit balance of $283.33 appearing on its bonus account to be applied on its capital stock tax account, as requested.

Very truly yours,

FRANCIS SHUNK BROWN,
Attorney General.

In re Diamond Street.

Municipal improvement-Streets-Grading-Right of action.

A owned property abutting on three streets and alleys in the City of Pittsburgh. On January 26, 1912, the city council passed an ordinance to lower the grade of the streets and alleys in a certain defined district, which included the property owned by A. Certain parts of these streets were improved during 1912, but the city at that time did no actual work on the streets and alleys on which A's property abutted. During 1912, however, the public service corporations in lowering their pipes and lines on all these streets so interfered with traffic that A's property was practically cut off from egress and ingress previous to the death of A on January 12, 1913, testate, leaving a widow, who was named executrix, and six children. The actual work of changing the grade of the streets on which A's property abutted was begun by the city in February of 1913, and not completed until several months later.

For this change of grade, the Viewers awarded damages to the executrix; for the reason, that the city had begun work on the general improvement covered by the city ordinance on some of the streets involved before the death of A, and for the further reason that the interference by the public service corporations, being a necessary part of this improvement, work had actually taken place on the streets on which A's property abutted, and a right of action had accrued previous to A's death, the award should be made to the estate rather than to the children in whom the fee vested. Exceptions were filed, and the only question before the court was, to whom the award of damages should be made-the executrix or the children.

Held: That as there was no actual taking of land and the damages being consequential, the right of action did not accrue until the city began actual work on the streets immediately on which A's property abutted, the damages should be awarded directly to the children. That the work done by the public service corporations did not fix the date when actual work was begun. Neither did the work done on other streets under this ordinance fix the date unless the work was actually started on the street on which the property abutted and at a point directly affecting it.

Exceptions to final report of board of viewers. No. 1807 January Term, 1914. C. P. Allegheny County.

A. E. Goss, for plaintiff.

Chas. A. O'Brien and H. M. Irons, for defendant.

CARPENTER, J., May 21, 1915.-This matter comes before us on exceptions to the final report of the Board of Viewers. The question raised is, To whom are the damages awarded for injury to the property of John F. Edmundson, deceased, payable; that is, are they payable to the executrix of his will or to his children in whom the title vested at his death. If he had a right of action prior to death, it is conceded that the damages belong to his estate, but if no right of action accrued in his lifetime, then they belong to his heirs.

It is contended on behalf of the exceptants that the damages awarded are payable to the six children of John F. Edmundson, who inherited the premises, and were the owners when the work was done which caused the damage. The Viewers, holding that the work was begun prior to Mr. Edmundson's death, awarded damages to the executrix.

In their first report the Viewers found as a fact that:

"Cherry Way, between Fourth Avenue and Diamond Street, Lemon Alley in the rear of the Edmundson property, and Diamond Street from Grant Street to Scrip Alley, were reduced to a new grade during the Summer of 1912."

By their supplemental report it is shown that this finding, whilst in accord with the facts as they then appeared, was not in accord with the facts subsequently disclosed by the testimony of Mr. Reed, a civil engineer in the employ of the City, by whom it was shown that the City did not begin the reduction of these grades between the points named until 1913. As a substitute for their original finding of fact number three, the Viewers therefore found and reported as follows:

In re Diamond Street.

"Third. The first work by the City of Pittsburgh in connection with the change of grade involving the streets in the "hump reduction" was started April 5, 1912. The reduction of the grade of Lemon Alley in the rear, and Cherry Way at the side of the Edmundson property, was begun in February and March, 1913, respectively, after the death of John F. Edmundson. The grading of Diamond Street from Grant Street to Scrip Alley was commenced about the end of January, 1913. Diamond Street east of Grant Street was reduced in 1912, prior to the death of John F. Edmundson. Immediately in front of the Edmundson property the work was done in June, 1913. Access by vehicle traffic to the Edmundson property from Grant Street and from Diamond Street east of Grant Street was cut off by the act of the city prior to the death of John F. Edmundson.”

In support of their conclusion that notwithstanding this substituted finding of fact, the damages are payable to Phebe Edmundson, Executrix, hey report that:

"The tearing up of the streets by public service corporations for the purpose of adjusting their conduits to the new grade was unquestionably a necessary incident to the completion of the City's general scheme of improvement known as the hump reduction.' Whether the work was done by the City or by the corporations would seem to make no difference, in so far as it affects the question as to when the right of action for damages accrued. However this may be, the Viewers are of the opinion that the right of action for damages to the Edmundson property accrued when the ordinary and usual access to the property from the intersecting streets was first interfered with. It is not questioned that this occurred prior to the death of John F. Edmundson. The Viewers therefore do not find it necessary to modify the conclusions of law heretofore reached that the damages in this case are payable to the Executrix."

John F. Edmundson died January 14, 1913, and, as indicated, the sole question is, To whom are the damages payable? The Viewers concluded that the tearing up of the streets by public service corporations for the purpose of adjusting their conduits to the new grade was a necessary incident to the completion of the City's general scheme of improvement known as the "hump reduction," and that whether this work (adjusting conduits, etc.) was done by the City or by the corporations makes no difference in so far as it affects the question as to when the right of action for damages accrued. They conclude, and report, that the right of action for damages to the Edmundson property accrued when the ordinary and usual access to the property from the intersecting streets was first interfered with and that as this occurred prior to the death of Mr. Edmundson the damages are payable to the Executrix.

The Supreme Court has repeatedly held that "it is the physical change and not the mere establishment of a grade on the official plans that gives a right of action, and no damages are recoverable for the establishment of the grade until the actual work is begun." Devlin vs. Philadelphia, 206 Pa., 518, and cases there cited leave no room for further discussion of this question, and are followed in Hicks vs. Williamsport, 235 Pa., 509. The supplemental report does not modify the conclusion reached by the Viewers as embodied in their first report.

The Viewers also find as facts, material to the question now before us: First. Separate ordinances re-establishing the grades of Diamond Street, Cherry Way and Lemon Alley were duly enacted.

Second. The work of cutting down said thoroughfares to conform to the grades so established was done under a single contract, pursuant to a single ordinance covering all the streets and alleys in the "hump district" duly enacted by council and approved January 26th, 1912.

It appears from the report as above stated that the work of reducing

In re Diamond Street.

the grade of Lemon Alley in the rear of Cherry Way at the side of the Edmundson property was not begun until February and March of 1913; that the work of grading Diamond Street to Scrip Alley was commenced about the end of January, 1913, and that the work immediately in front of the Edmundson property was done in June, 1913. The grade of Diamond Street cast of Grant was reduced in 1912, and access by vehicles to the Edmundson property from Grant Street was cut off by the act of the City prior to the death of Mr. Edmundson.

In view of the facts found, we are asked to determine whether the damages awarded for injury to the Edmundson property belong to his estate or are payable to his heirs.

We do not think that the fact that the public service corporations occupying the streets and alleys affected were required to lower their pipes, conduits, etc., some time in advance of the date when the work of grading was begun has any bearing upon the question. The City had the undoubted right to arrange for or require this work to be done in advance of commencing its own work.

The question to be answered is: When was the work of grading begun, so far as the Edmundson property is concerned? That is, at what point of time with reference to the death of Mr. Edmundson? Was it, in contemplation of the law, as above quoted, begun before or after his death? Can we say that the first work under a single contract for the grading of several streets and alleys, the grading of which is necessary to the carrying out of one general scheme or plan of public improvement, is, in law, “beginning work" on each and all of the streets and alleys embraced in the contract? The conclusion of the Viewers appears to be in affirmance of this proposition, while exceptant contends that the law is to the contrary. The ordinance pursuant to which Diamond Street was graded, provided for change of grade from Smithfield Street to a point east of Ross Street. If the date of commencing the work of grading Diamond Street east of Grant is the date it was in the lifetime of Mr. Edmundson. The schedule attached to and made part of the Viewers' report shows that the damages awarded for injury to the Edmundson property were for re-grading, etc., of Diamond Street from Smithfield Street to a point 252.37 feet east of Ross Street, and the streets and alleys affected thereby. For the purposes of this case we assume that the streets and alleys affected are those on which the Edmundson property abuts, viz: Diamond Street, Cherry Way and Lemon Alley.

The facts are not in controversy and the law as declared in the cases we have cited is not uncertain as to what it says; the uncertainty is as to As application under the facts.

It is settled beyond controversy that where, in the exercise of the right of eminent domain, land is appropriated, the right to damages accrues when the right of appropriation is exercised in accordance with legal requirements, though the actual physical entry and occupation may be postponed. But damages arising wholly from change of grade (no property being taken) are consequential, hence do not accrue in advance of the act that causes the injury, and this cannot be said to take place until the work that directly and immediately results in injury, is begun.

In appeal of the City of Philadelphia et al., 143 Pa., 414, Mr. Justice Mitchell says: "Damages for opening are not given till the actual operation on the ground." This is the general rule of law; that the cause of action arises only when the injury is complete; Whitaker vs. Phoenixville Boro., 141 Pa., 327; Volkman St., 124 Pa., 320; Brown vs. Philadelphia, 142 Pa., 350; though under the language of the Constitution the cause of action for some purpose, as, e. g., for consequential damages for the exercise of emi