Waldschmidt vs. Borough of Glenfield.

Roads Improvement-Change of location--Original view.

In 1873 a Township road was authorized and laid out within the limits set forth in the report of the Viewers, but not directly on the line shown in the report. In 1898 the land having been taken into a Borough, the Borough improved the road and an adjoining property owner brought trespass against the Borough for damages, alleging that in improving the street the Borough altered and changed the line of the road and encroached upon and appropriated a strip of his property. The testimony as to there being any change in the road was conflicting, and the Jury was instructed that if the road was not within the limits of the road as originally established, the Borough had the right to move the fence back and appropriate sufficient property to widen the street to the width given in the original Viewers report. Held, that a verdict for the plaintiff should be sustained.

Trespass. No. 603 November Term, 1908. C. P. Allegheny County.

C. A. Waldschmidt, for plaintiff.

F. W. Miller, for defendant.

FORD, J., October 23, 1914.—This is an action of trespass for the alleged taking and injury of plaintiff's property by reason of grading, paving and improving of Kilbuck Street in the Borough of Glenfield.

The verdict of the jury was for the plaintiff and the defendant moves the court for judgment non obstante veredicto.

It appears from the evidence:

That the plaintiff is the owner of a tract of land fronting about 528 feet on the east side of Kilbuck Street in the Borough of Glenfield, formerly a part of Kilbuck Township.

At No. 7 December Sessions, 1872, a petition was presented to the Court of Quarter Sessions for a public road in the Township of Kilbuck. Viewers were appointed and subsequently the viewers filed their report recommending a road for public use as prayed for. To the report there was attached a plot or draft of the road. The viewers' report having been confirmed absolutely, an order to open issued on June 7, 1873, and in pursuance thereto the road was opened on the ground. The road as opened by the supervisors was not made to conform to the lines as shown in the plan attached to the report of the viewers, but in certain respects varied therefrom.

The road as thus opened was used by the public until the fall of 1908. Prior to the incorporation of the borough the highway was known as the Kilbuck Road, thereafter as Kilbuck Street. The date of incorporation does not appear in the evidence, but it is admitted that the borough was incorporated prior to 1905.

In September, 1908, the borough graded, paved and improved Kilbuck Street.

The plaintiff alleged that in improving the street the borough altered and changed the lines of the highway and thereby encroached upon and appropriated a strip of his property, varying in width from four or four and one-half feet at the north end to about eleven feet at the south end.

The borough denied that the lines of the street had been changed or altered and alleged that the middle line of the street as improved is identical with the middle line of the road as opened and used by the public.

In support of this motion the borough contends that the evidence in relation to the alleged change and alteration in the lines of the street was not sufficient to justify submission of the question to the jury.

The controverted questions were as to the width and boundary lines of the road as opened in 1873 and thereafter until 1908 used by the public, and whether or not the opened and traveled road was within the view of 1872.

It was not disputed that the road was opened to approximately, perhaps fully, thirty-three feet. The plaintiff contended that the lines of the traveled road were indicated by fences erected and maintained on either side and

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Waldschmidt vs. Borough of Glenfield.

that in improving the highway the borough changed and altered the road along his property so as to extend the highway beyond its former limits and thereby encroached upon his land.

The testimony respecting the boundary lines of the road was conflicting. Upon behalf of the plaintiff, Daniel Waldschmidt testified that fences had been maintained on each side of the road for a number of years; that the distance between the fences was about thirty-three feet, and that the borough had removed the fences on plaintiff's frontage and "moved the street" in on plaintiff's property for a distance of from four to ten feet.

Henry Waldschmidt testified that in 1873 he assisted his father, Joseph Waldschmidt, then the township supervisor, in opening the road; that shortly after the road was opened his father erected a fence along the property in question. We quote from his testimony:

He built the fence Until "Q. What did your father do along there? A. there, he had it built. Q. How long did the fence stay there? A. the borough removed it. Part of the posts were removed, of course, but some of the posts that were put in there are there yet and the borough removed it."

George C. Jack testified that on the western side of the road at the Mertz property there was a barbed wire fence and on the Shafer property a board fence; that the western line of the street as improved does not extend as far west as the fences on the Mertz and Shafer properties; and that between the western line of the new street and the old fence line there is a difference of from four or four and one-half to seven feet.

Mr. Albert Panzier and other witnesses testified as to the fences erected along the traveled highway.

A. G. Shaw, an engineer called by the plaintiff, testified that he made two surveys of the street, the one in 1895, the other in May, 1914; that in 1895 he found "the traveled road in front of the Waldschmidt property wholly within the view of 1872"; that in 1914 he found that the center line of the new street was not the same as the center line of the street as traveled and used prior to the improvement and that the borough had extended the street over plaintiff's property. The plan made in 1895 shows the fence on the Waldschmidt property as distant sixteen feet and two inches from the middle line of the traveled road. There was a material difference in the measurements as shown on the plans made by Mr. Shaw and admitted in evidence. The credibility of the witness and the evidentiary value of his testimony and of his plans was for the jury.

A reference to the testimony of each of the witnesses would unduly extend this opinion.

The borough as a reason for granting this motion further urges that the evidence upon the part of the plaintiff showed that in front of plaintiff's property the road as laid out and opened in pursuance of the proceeding of 1872 and traveled by the public was located substantially outside of the lines indicated by the plot or plan annexed to the report of the viewers and therefore binding instructions should have been given in favor of the defendant.

It may be conceded that if the road was not located within the limits as originally laid out by the viewers the Act of June 19, 1901, P. L. 573, does not apply: Gray vs. North Versailles Twp., 208 Pa., 72.

The jury were instructed that "if the roadbed or track of the highway along plaintiff's property was not within the limits of the road as originally established, the borough had the right to move the fence back and appropriate sufficient property to widen the street to thirty-three feet." By their Upon this verdict the jury found that the road along the Waldschmidt property was within the limits of the plan annexed to the viewers' report. question of fact the evidence was conflicting, mainly depending upon the credibility of Mr. Shaw, called by plaintiff, and Mr. McKnight, called by the borough. As indicated, Mr. Shaw testified that in making the improvement the borough had changed the location of the center line of the highway.

Waldschmidt vs. Borough of Glenfield.

Mr. McKnight testified that the "center line of the improved street is identical with the center line of the cartway that was traveled at the time the improvement was made."

A careful review and consideration of the evidence does not satisfy us that binding instructions would have been proper. The proof depended upon oral testimony and upon plans and drafts prepared by engineers after a survey on the ground and an examination of the report of the viewers. The testimony respecting the location of the road as opened and traveled and the results of the surveys was conflicting. To have given binding instructions would have denied the jury the right of deciding upon the controverted questions.

At the argument counsel for the borough advised the court that they would not press the motion for a new trial, hence counsel were not heard, nor have we considered the reasons assigned on the rule for a new trial.

Now, October 23, 1914, the motion ex parte defendant for judgment non obstante veredicto is refused and it is ordered that on payment of the verdict fee, judgment be entered on the verdict in favor of the plaintiff and against the defendant.

Divorce

Allshouse vs. Allshouse.

-Cruel and barbarous treatment.

In Divorce. No. 1743 April Term, 1914. C. P. Allegheny County.

Jacob Margolis, for libellant.

S. H. Huselton, for respondent.

BROWN, J November 11, 1914.-The libel of the husband charges (a) cruel and barbarous treatment and (b) indignities to his person. The answer of the wife denies the charges.

Measured by the weight of the testimony and the rule of conscience moving a Chancellor--the rule of clean hands—libellant has failed to establish his right to a divorce.

Whatever relevant shortcomings might be charged to the wife are at least met by like conduct on the part of the husband.

In Richards vs. Richards, 37 Pa., 225, it is said:

"Never ought divorces to be easily obtained, for marriage is the most sacred of human relations, and should never be dissolved without clear proof of imper

10us reasons

In Angier vs. Angier, 63 Pa, 462, it is said:

"Like all other causes in equity, the applicant must be rectus in curia; have a good cause. and the respondent a bad one. This must always be the case where the divorce is resisted. The party who would win in such a contest must be clear of everything which is charged as a cause of separation against the (pposite party."

Decree refused and libe! dismissed at cost of libellant.

And now, November 11, 1914, decree refused and libel dismissed at the cost of libellant.

McMasters' Estate.

Wills-Legacy-Charge upon real estate

Conversion of real estate.

Testatrix devised legacies amounting to over $7,000, and bequeathed the residue of her property to X. She directed her executor to sell her real estate and provided as follows: "I do not make any of the above legacies a charge upon my real estate, and do hereby relieve the purchaser or purchasers from looking to the proper application of the purchase money." Her personal estate amounted to a little over $100. Held:

That the legacies were payable out of the proceeds of the sale of real estate, as under the terms of the will the entire estate was made personal property and the provision as to relieving the real estate was only in relief of the purchaser and to facilitate a sale.

Decedent's Estate. No. 440 September Term, 1914. O. C. Allegheny County.

C. C. Lee, for accountant.

Morris, Walker & Allen and S. W. McGinniss, for Cecelia Fleming.

MILLER, J., November 14, 1914.-The question is, whether legacies are payable out of the proceeds of the sale of decedent's real estate?

Testatrix gave general legacies amounting to $7,650.00, after providing for a monument and the care of her cemetery lot amounting to $800.00; she bequeathed the residue to the claiming residue legatee.

By the twelfth paragraph of her will she directed her executor to sell and dispose of all her property giving him full power and authority to make and deliver deeds to the purchaser; she then said: "I do not make any of the above legacies a charge upon my real estate, and do hereby relieve the purchaser or purchasers from looking to the proper application of the purchase money.'

Her personal estate inventoried at $158.85; the balance now for distribution consists wholly of the proceeds of real estate and some net rents and is not sufficient to pay the legacies in full.

The direction to sell, worked an absolute conversion; the relief of the real estate from the charge therein of the legacies was wholly for the benefit of the purchaser; in no way was it intended as a discharge of the payment of legacies from the proceeds of sale.

The general intent is clear; the legacies were first to be paid, the will so says, because only after this was done did she make disposition of what was left; as nothing is left the residuary can take nothing.

It is conceded that the blending of the personal and real estate in the general residuary clause fixes the legacies as a charge, since the residue means nothing but what remains after the payment of the legacies. But it is urged that the relief from the charge on the real estate subjects the personal estate alone to the payment of the legacies; the answer is, first, that the whole estate is personal, and second, that the release of charge is relief of the purchaser and to facilitate the sale.

To give effect to this will is to find the general intent, and that clearly is that these legacies shall first be paid; such is her first general purpose; no secondary direction relating only to form of administration can be made paramount over the general purpose.

Reilly et al. vs. Kaufmann Department Stores, Inc.

Lease- Terms of-Trade fixtures- -Removal of- -Preliminary injunction by lessor Damages to lessee-Right to recover.

Plaintiff leased to B a building and the latter turned the first floor into a sales room for jewelry by putting in a wainscoting against the wall around the back part of the store room and setting up throughout the store counters and show cases. The wainscoting was made at the same time and by the same person as the show cases and corresponded in design. Attached to the wainscoting at various parts were shelves to hold objects to be displayed and below them drawers and at several places in the wainscoting there were large mirrors inserted. The wainscoting was fastened to wooden pegs driven between the bricks. B. also put in large chandeliers of brass specially designed and also put electric lights at various places in the show cases and at the side of the wall where no lights had been before. B. subsequently assigned the lease to the defendant who attempted to remove the showcases, counters, chandeliers, wainscoting and shelves, etc., the latter intending to use them with similar articles for a jewelry department of another store located at another place. The lease provided that the lessee should not "remove, destroy or damage in any way improvements made by themselves or the said part of the second part";

Held, First, That in as much as it was within the contemplation of the parties that new flooring and an elevator and similar construction were to be placed in the building by the tenant, which had been done, the word "improvement" was intended to apply to the elevator, flooring and similar construction and did not include the ordinary trade fixtures.

Second. The chandeliers were personal property and removable by the

tenant.

Third. The mahogany wainscoting and partition, if not put in for the purposes of the trade of the lessee, would not be removable fixtures. From the facts found as to the character of this wainscoting and its use and the manner of attachment, from the evidence of the intention of the parties who put it is furnished by the method of keeping their accounts and the fact that it was taken cut by the lessor as unsuitable to the trade of the incoming tenant and that it was especially adapted to the trade of the tenant who put it in, these articles were to be considered trade fixtures and therefore removable by the defendant.

The lessor had secured against the assignee of B. a preliminary injunction restraining the removal of the articles found to belong to the tenant and had then removed and sold them. Upon the finding that they were trade fixtures and removable by the defendant, the latter asked the court to assess in the injunction proceedings the value of the fixtures so taken. Held that the defendant had no right to have his damages so assessed and was relegated to a recovery in a suit on the bond accompanying the bill given at the time the preliminary injunction was granted.

Bill for restraining injunction. No. 2190 April Term, 1914. Docket B. C. P. Allegheny County.

L. P. Monahan, for plaintiffs.

Weil & Thorp, for defendant.

SHAFER, J., November 12, 1914.-The bill is for an injunction to restrain the removal by the defendants of improvements or fixtures made by them as lessees of premises belonging to the plaintiffs.

FINDINGS OF FACT.

First. In February, 1906, John C. Reilly, now deceased, whose heirs are the plaintiffs herein, leased to E. P. Roberts & Sons a five-story building, No. 233 Fifth Avenue, Pittsburgh, by a lease a copy of which is printed as Exhibit "A" of the bill. The lease contains an agreement on the part of the lessees "not to remove, destroy or damage in any way, improvements made by themselves or the said party of the second part on said premises."

Second. E. P. Roberts & Sons entered into possession of the building under the lease, using the store room on the first floor as a jewelry store and renting out the upper stories to other tenants. At the time they entered into possession of the building, or soon after it, they altered the show win