Canevin, Trustee, vs. City of Pittsburgh. Municipal Improvement- Sewer-Award of l'iewers Benefits - Appeal On a petition to show cause why an appeal from an award of a Board of Viewers should not be stricken from the record, it appeared that in plaintiff's petition for appeal, it was not averred that his property, or any part of it, had been taken, injured or destroyed in the construction of a public sewer constructed wholly within the lines of the highways, nor was it averred that he had been assessed benefits for the property taken, injured or destroyed. Rule absolute without prejudice. Exceptions to viewers' award. No. 267 October Term, 1915. C. P. Allegheny County. J. C. R. Johnston, for plaintiff. Charles A. O'Brien, City Solicitor, and H. M. Irons, Assistant City Solicitor, for defendant. FORD, J., September 30, 1915.-This is a petition to show cause why an appeal from an award by a Board of Viewers should not be stricken from the record. Upon petition filed by the City of Pittsburgh, Viewers were appointed to ascertain the cost and expenses, and assess the benefits arising from the construction of a public sewer on Colorado Street, commencing at the crown of Colorado Street, thence extending northwardly along Colorado Street to the present sewer on Superior Avenue, and thence extending southwardly to Colorado Street and Colorado Alley to the present sewer on Island Avenue. The sewer was constructed wholly within the lines of the highways, and the benefits assessed by the Viewers were to pay the cost and expenses of the improvement only. The appellant does not contend that any of the abutting property was taken, injured or destroyed, but contends that the proceedings are invalid in that the Viewers were not appointed to determine the damages as well as the cost and expenses for property taken, injured or destroyed. Where an assessment is only for the cost and expenses of an improvement there is no right to appeal. Brackney vs. Crafton Borough, 31 Sup. Ct., 414. The owner affected, if his property be not subject to assessment or a wrong rule has been adopted in imposing the charge, or for any reason the appointment of Viewers be invalid or their duties limited, may move to quash or he may be heard on exceptions. Counsel at argument informed us that appellants had filed exceptions. In plaintiff's petition for appeal in this case, it is not averred that his property or any part thereof has been taken, injured or destroyed, nor is it averred that he has been assessed benefits for property taken, injured or destroyed. We are therefore of opinion that the motion should be granted, and the question of the validity of the proceedings not being determined, the granting of the motion should be without prejudice. ORDER. Now, September 30, 1915, rule absolute and it is ordered that the appeal be stricken from the record, without prejudice to the rights of appellant to raise the same question, to wit, the jurisdiction in any other proceeding. In re Hunting on Forest Reserves. Game Forestry Reserves-Adjacent Owners or Lessees-Right to Hunt. The Commissioner of Forestry has no authority to permit owners or lessees of land immediately adjacent to and connected with State Forest Reserves to hunt upon the latter; nor is anyone exempt from a hunter's license, except a bona fide owner or lessee of cultivated lands, who resides thereon; nor can he grant exemption from any of the provisions of the game laws. OFFICE OF THE ATTORNEY GENERAL, Dr. Joseph Kalbfus, Sir: Secretary of the Game Commission, Harrisburg, Penna. September 29, 1915. I have your favor of September 10, 1915, directed to the Attorney General, asking: First. Whether the Commissioner of Forestry has a right, under Section 5 of the Act of April 17, 1913, P. L. 85, to permit the owners or lessees of land immediately adjacent to and connected with the State Forest Reserves to hunt upon the latter. Second. Whether Forestry Rangers and other employes of the Forestry Department have the right to hunt upon Forestry lands without securing a license, under the Act of April 17, 1913. The powers and duties of the Commissioner of Forestry are conferred by Section 3 of the Act of February 25, 1901, P. L. 11, as stated by Honorable John P. Elkin, Attorney General, in opinion dated October 15, 1901, 10 Dist. Rep., 676. This Act confers upon the Forest Reservation Commission very general powers in reference to the management and control of lands purchased by the State for forestry purposes. However, in this opinion, while concluding that the Commission has the right to grant temporary permission to use the water on the reserves he states: "I doubt whether it would be within the power of the Commission to grant any permanent water rights to persons or corporations." There is no question but that the Commissioner of Forestry and the Forest Reservation Commission do not have the powers of an owner or lessee over the State Forest Reserves, but that they are rather officers in control, and in control only, to the extent expressly designated by statute or necessarily implied therefrom. The Section of the Act of 1901, above quoted, states that the Commissioner of Forestry "shall have immediate control and management, under the direction of the Forest Reservation Commission, of all forest lands already acquired, or which may hereafter be acquired by the Commonwealth, but the power so conferred upon said Commissioner of Forestry shall not extend to the enforcement of the laws relating to public health or the protection of fish and game." In looking at the power thus conferred we find an expressed reservation in which there is taken away from the Commissioner of Forestry the enforcement of the laws pertaining to public health and those pertaining to fish and game. While the meaning of the word "enforcement" would naturally be considered as that of enforcing the laws, the reading of the whole section gives it a broader significance. The enforcement of laws would be a duty which the Commissioner of Forestry would share equally with any private citizen, in so far as the institution of any prosecution under them is concerned. The proviso, however, is directed to a limitation upon his powers so that it would appear that in conferring powers upon In re Hunting on Forest Reserves. him there is a limitation as to any power which has to do with either the public health or fish and game. If this is a proper construction of this portion of the section mentioned, he has not the power to grant exemption from any of the provisions of the Game laws such as an owner, mentioned in the 5th Section of the Act of 1915, would have, and it is to such a construction as this that the direct meaning of the Section of the Act of 1901 quoted would conduce. In further support of this position, I would refer you to Section 5 of the Act of 1913, in which is set forth the limitations upon which the right to hunt without a license is based. In the first place no person is exempt from such license, except the bona fide owner or lessee of cultivated lands, who resides thereon. The right to hunt on such lands is a necessary incident to the protection of the cultivated portions of such lands from game which might damage them and it is but reasonable and proper that such owner or lessee could go upon lands immediately adjacent where the game sought by him lived or sought refuge after feeding upon or destroying his crops. While State Forest Reserves are, of course, connected with privately owned land, yet the extent of the former does not make all portions of them immediately adjacent. The ownership or control of a tract of land is not the only element necessary in permitting the owner or lessee of land connected therewith to hunt upon it. It means not only being con nected therewith but "immediately adjacent." While the expression "immediately adjacent" is somewhat relative and indefinite, yet it would be obvious that land owner by a single individual and say several miles in width, would not all be "immediately adjacent" to the land of some person abutting upon one side of it. The Commissioner of Forestry, if possessed of any rights to grant permission to an abutting owner to hunt upon the State Forest Reserves, could give permission for that portion only of the State Forest Reservation "immediately adjacent" to such person's property and in applying this term to the conditions as presented in your letter, it is doubtful whether land as far away as a half mile from such privately owned land would be considered immediately adjacent. However, following the construction of the first sentence of Section 3 of the Act of February 25, 1901, as outlined above, the reservation contained in it takes away from the Commissioner of Forestry the power to grant any immunity or privilege connected with the game laws of this State and that, therefore, he could not permit any person to hunt upon the State Forest Reservation without a license. Answering your second inquiry, would state that the Act of April 17, 1913, P. L. 85, in Sections 1 and 2, makes the Act applicable to "any person" and under the express phraseology of this Act, the necessity of procuring a license applies to every person, except such as are expressly excepted in the Act. Section 5 of this Act excepts from its provisions any owner or lessee of cultivated land or any member of his family, who resides on such land. No exemption is made for any employe of such owner or lessee and in the absence of any such exemption, the Forest Rangers and other employes of the Forestry Department have no more right to hunt without a license than would the officers of the Game Commission, which are admittedly not exempt. Very truly yours, HORACE W. DAVIS, Deputy Attorney General. Rieseck vs. Rieseck. Trust Resulting-Parol Evidence-Suggestions by the Court-Exceptions. Exceptions were filed to the ruling on evidence, the findings of fact and conclusions of law in a case involving title to real estate. Held: That complainant had not established either an express or a resulting trust by the parol evidence offered, and exceptions dismissed. Exceptions. County. No. 757 July Term, 1914. Docket "A." C. P. Allegheny Joseph B. Weddell, for plaintiff. James Houston Johnston, for defendant. FORD, J., October 11, 1915.—The complainant filed a number of exceptions to the rulings on evidence, to the Findings of Fact and Conclusions of Law. The first exception has relation to a question asked John Rieseck, Jr., whether he had not informed Mrs. Francis Schade that he paid his mother $10.00 a month rent for the house. The theory of the complainant was that he occupied the property without having paid his mother or father or his brother any rent. Counsel for the respondent was laying ground for contradiction, and the question was therefore competent. Albert S. Henle had done certain work and furnished certain materials on the property in dispute. The conversation with John Rieseck, Sr., was for the purpose of showing by whom he was employed and against whom the bills were charged. The testimony of Mr. Henle was of very little importance and in nowise aided in arriving at a final conclusion. As indicated in the opinion filed, at the hearing we were of the opinion and first ruled that the complainant, John Rieseck and his wife were incompetent to testify to matters which occurred between John Rieseck, Jr., and his mother, Emma Rieseck, during her lifetime. Subsequently the ruling was re-considered, the objection was overruled and the testimony of both witnesses was received. Counsel for the respondent suggested, and, at his instance, the Court stated: "It is understood that all testimony heretofore taken or which may be further elicited from this witness, is taken under the objection heretofore made by counsel for the respondent, to the effect that the witness is incompetent to testify, that the testimony is incompetent, and that it is incompetent by reason of the fact that it is an attempt on the part of the complainant to establish a resulting trust by parol testimony." The notation indicated that the respondent had waived no rights. Placing the suggestion on record worked no injustice to the complainant. The fourth and fifth exceptions allege that the Court erred in failing to find that the testimony supported the averment of the bill of complaint that "It was clearly understood at the time of the delivery of the said deed that Emma Rieseck took the title to the said property without consideration and that she held the same under said deed for the use, benefit and in trust for her son, John Rieseck, Jr., and the said Emma Rieseck, after the delivery of said deed to her, represented the said property to be the property of her son, John Rieseck, Jr., and that she held the title for him." In the opinion filed, we referred to the testimony of both the complainant and his wife, and stated fully the reasons influencing the conclusions we reached. Anything further we might add would be largely a repetition of what was then said. If the conveyance to the mother, Emma Rieseck, was made in pursuance with a parol agreement such as is alleged by the complainant, the trust would be an express rather than a resulting trust. We have reviewed Rieseck vs. Rieseck. the testimony and, after a careful consideration of all the facts and circumstances in evidence, we are of opinion that the complainant has not established either an express or a resulting trust; therefore, we deem it unnecessary to discuss the effect of the Act of 1856, or the Act of 1901. The exceptions are overruled and dismissed. Ross vs. Giltinan. Appeal Common Pleas-County Court-Negligence—Question for Jury. An appeal to the Common Pleas Court from the County Court will be refused where the verdict was for the defendant on the question of contributory negligence, and the question of liability of defendant was presented to the jury by adequate instructions at the trial. Appeal from County Court. No. 1945 July Term, 1915. C. P. Allegheny County. John McKelvie, for plaintiff. Dalzell, Fisher & Hawkins, for defendant. EVANS, J., September 17, 1915.-This is an application for appeal from the judgment of the County Court. The plaintiff brought suit against the defendant in the County Court alleging that he was injured by being struck by an automobile driven by the defendant, and that the collision was occasioned by the negligence of the defendant. The plaintiff was working for the Pittsburgh Railways Company on Carson Street, on the South Side of this City, and the paving stones between the inbound track of the Street Railways Company had been lifted for a space of seven or eight feet long, and there was a depression in the track of about six or seven inches. The result of this was that wagon and automobile traffic was suspended on that particular part of the street, but street cars could pass over the depression in the street. The defendant was driving on the street behind the street car, and the workmen left their places to permit the street car to pass, and the defendant following the street car in some way came in contact with the plaintiff. He was in plain view if the plaintiff had looked, and, while it is alleged that one of the workmen motioned the defendant to go around this depression, there was no evidence that the defendant saw or knew what he meant by the waiving of his arm, or that he had any knowledge of the depression in the street, following the street car as he was. These were all questions of fact for the jury. They were submitted by the Court and a verdict rendered for the defendant, both on the question of defendant's negligence and plaintiff's contributory negligence. It is true the charge of the Court did not give the definition of what would be negligence under the circumstances, but he instructed the jury that the verdict could only be sustained because of the negligence of the defendant causing the accident, and that even in the case of negligence of the defendant, plaintiff must be free from contributory negligence. I see no error in the charge of the Court. The question was one for the jury and was a pretty close question of fact, and I see no reason why another jury should pass upon the question. Motion for appeal from the judgment of the County Court is refused. |