the land owner as to compensation (page | it crosses your petitioner's land, for his 104) and the Supreme Court in closing its opinion, says: "Indeed, upon so imperfect a petition, a view ought not to have been awarded.”

See also In re Application of P. W. & B. R. R. to file bond, 7 Phila., 461 (1870).

3. The appointment of viewers in the case at bar would have been futile, inasmuch as the court would have set aside any finding of damages by the jury.

4. The proceeding amounted, in substance, to an effort to recover double damages.

The matter of the cutting of the farm in two taken into consideration when the original damages were allowed and the existing crossing was considered by them.

K. C. & E. Ry. v. Kreglo, 32 Kansas, 608.

Chalcroft v. Railroad, 136 Ill., 89.
July 20, 1910. HEAD, J.

The appellant owns and lives on a farm in Lancaster County through which the Railroad Company, the appellee, located and constructed one of its branch lines. As the line was constructed it passed through his land chiefly above or below the natural grade and thus cut it into two portions. The necessary land for the right of way was appropriated by the company under its right of eminent domain, and the damages therefor were in due time ascertained by the usual methods and have been paid.

benefit or use. That they have placed across their track on the east side of the plaintiff's land a kind of crossing, put up, as petitioner believes, for the accommodation of the contractor of the said railroad, and is not located in any proper place, nor is it any benefit to your petitioner's premises, and is not maintained nor kept in good repair by said railroad company." The petition then prayed for the appointment of viewers to assess the damages sustained by the petitioner by reason of the neglect and refusal of the railway to make or to properly maintain a causeway in the manner provided by the act of assembly. The court below in the first place granted a rule to show cause why the viewers should not be appointed as prayed for. The defendant company filed an answer in which it traversed the allegations of fact in the petition alleging that it had constructed one crossing or causeway for the use of the plaintiff and was maintaining it in proper repair. The company then proceeded to take the depositions of witnesses against the protest of plaintiff's counsel who filed the following objection thereto: "I object to the taking of depositions on this rule. for the reason that the matters referred to in the petition and answer are matters for the jury of viewers to dispose of." The depositions were nevertheless taken, and the court, after argument, undertook to determine that the allegations of fact in the petition were not true, and that as a consequence the petitioner had not shown that he was a person aggrieved within the meaning of the statute, and discharged the rule. From this order the petitioner appeals.

The 11th section of the Act of 19th of February, 1849, P. L. 79, provides that when the company and the landowner are unable to agree upon the damages done to the land of such owner,

Some time later the appellant began this proceeding by filing his petition in the court of common pleas, in which, after describing the manner in which his property had been divided, he further averred as follows, "and the said Pennsylvania Railroad Company had neglected and refused to make a causeway or bridge over said road for the use of himself and the occupants of his land to cross or pass over the same with wagons, the court of common pleas of the carts and implements of husbandry as proper county, on application thereto by occasion may require, and has also ne- petition either by said company or owner, glected to maintain and keep in good re- shall appoint seven discreet and disinpair any such causeway. That no cross-terested freeholders, &c." Provision is ing or causeway has been made at any then made for the view, report, &c., the place long the line of said railroad, where various steps of such proceeding being

66

so familiar that they need not here be | invested with supervisory power over quoted.

It was to provide for such and similar | in it that is sufficient to convict the cases that the act of 1849 was passed. * * * As before observed, its object was to furnish convenient access from one part of the land to the other, and we quite agree with the learned court below, that the crossing referred to was necessary to give such access, and that it ought not to have been removed." It thus appears that it is of the first importance that the actual situation, as it exists on the ground, should be clearly ascertained before it can be determined whether or not the railroad company has complied with its statutory obligation.

It is clear of course under the language of the statute that the owner is given the right to but one crossing or causeway for his entire tract. The act does not attempt to define or describe the character of the structure as that would necessarily vary according to the conditions and circumstances. One case might of necessity demand the construction of an overhead bridge, another of an archway or tunnel under the right of way, whilst in many cases the reasonable convenience of the owner can be satisfied and the obligations of the statute fulfilled by the construction of a grade crossing in a proper location.

As we have already stated, the learned counsel for the appellee has been unable to furnish any authority in support of the order appealed from, nor do we find the reasoning of the opinion of the learned judge below convincing. In Bredin v. Pittsburgh & Western Railway Co., 165 Pa., 262, the landowner filed his petition for the appointment of viewers. The railway company opposed the appointment for a number of reasons involving matters of fact, the chief among them being that the former owner of the land had made a grant of the right of way and that the rights of the petitioner were acquired after the grant, &c. The learned court below, however, appointed the viewers and the railroad company appealed. In the course of the opinion the supreme court used the following expressions: "This certiorari brings before us nothing but the record proper of the court below. There is nothing

court of error in allowing the amendment, or in appointing the viewers. Defendant company's main objections to the latter are grounded upon matters of fact which are not admitted and upon which we cannot undertake to pass at this stage of the proceedings. **** If it should ever become necessary, these and other questions of fact can be better settled by proceeding in the regular and orderly way. The viewers have full power to inquire and report, inter alia, what, if any, damages should be paid by defendant company, and to whom payable. An attempt to anticipate and settle all questions, both of law and fact, before viewers are even appointed, is at least suggestive of obstructive proceedings."

Whilst therefore there is some paucity of authority on the exact question now before us, what we have is in harmony with the conclusion that seems to plainly flow from an examination of the language of the act of assembly itself.

The order discharging the rule for the appointment of viewers is reversed and set aside. The rule is reinstated and a procedendo awarded. The costs of this appeal to be paid by the appellee.

Common Pleas--Law.

C. P. OF LANCASTER COUNTY. Frank J. Rieker, Executor of Frank A. Rieker, Deceased, vs. Barbara Schwarz.

Evidence-Deceased party to contract— Act of May 23, 1887 and June 11, 1891.

Where the executor of a deceased plaintiff who managed his decedent's affairs in his trial testified in support of the claim, the lifetime was substituted as plaintiff and on the defendant is competent under the Act of June 11, 1891, P. L., 287, not only to contradict such testimony but also to show other agreements affecting the claim made with the exception to in his testimony. as manager for the decedent but not referred

The fact that a party appears in a repre

party.

The Act of 1891 contemplates the calling of the living witness only by the party representing the deceased, and not by the adverse The competency of the surviving party is to be determined by the condition of things at the time when he is called and he is not rendered competent by the fact that the other side subsequently calls the living witness.

sentative capacity does not excuse him from | examination in chief. After a somewhat being called as if under cross-examination by extended cross-examination upon these the other party under the Act of May 23, 1887, P. L. 158. points, counsel for defendant asked the witness whether it was not his agreement with Mrs. Schwarz that he should make the repairs on the Lafayette Hotel during the terms of the tenants which she put there at his request, and an objection being made that this was not cross-examination, the question was disallowed. We think that, strictly speaking, the ruling was proper, as the witness was not interrogated upon the subject in chief; but, be this as it may, we

March Term, 1907. No. 18.

Rule for a new trial.

Coyle & Keller and Wm. R. Brinton, do not think that this question is im

for rule.

W. U. Hensel, contra.

September 10, 1910. LANDIS, P. J.

portant at the present time, and, therefore, we will not enter further into its discussion.

After the plaintiff rested his case, Mrs. Opinion by Schwarz was called in her own behalf.

Frank A. Rieker, in his lifetime, in his lifetime, brought suit against Barbara Schwarz, to recover a balance of $1,131.83, which he alleged was due to him upon a book account. He died on August 5, 1907, and Frank J. Rieker was then substituted as managing executor of his estate. Upon the trial, Frank J. Rieker was called as a witness for the plaintiff, and he testified that he had personal knowledge of the transactions between his father and the defendant; that the defendant kept the Lafayette Hotel, and his father had a running account with her; that, on November 14, 1901, there was a partial settlement between them, whereby it was ascertained that the amount due to Frank A. Rieker was $2,101.50; that the defendant then gave a judgment for $2,000.00, thus leaving a balance of $101.50 on the open account, and he, for his father, then loaned her $500.00; that the account continued until December 12, 1904, when it amounted to $1,198.00, and Mrs. Schwarz then paid $600.00 on account. The witness said that he collected $75.00 rent, out of which he paid a small bill of $7.33, and that, therefore, an additional credit of $67.67, or thereabouts, was due to the defendant. Throughout the whole transaction, Frank J. Rieker was acting as manager and agent for his father. This is practically a summary of the witness's

The offer was made to examine her as to the transactions between her and Frank J. Rieker. We ruled that she could only contradict what Rieker had already testified to, and, therefore, excluded her testimony. Upon a more extensive examination of this question, we are constrained to think we were in

error.

The Act of June 11, 1891, section 1, P. L. 287, provides "that hereafter, in any civil proceeding before any tribunal of this Commonwealth, or conducted by virtue of its order or direction, although a party to the thing or contract in action may be dead or may have been adjudged a lunatic, and his right thereto or therein may have passed, either by his own act or by the act of the law, to a party on a record who presents his interest in the subject in controversy, nevertheless, any surviving or remaining party to such thing or contract or any other person whose interest is adverse to the said right of such deceased or lunatic party, shall be a competent witness to any relevant matter, although it may have occurred before the death of said party or the adjudication of his lunacy, if and only if such relevant matter occurred between himself and another person who may be living at the time of the trial and may be competent to testify, and who does so testify upon the trial, against such surviving or remaining party or