a method of voluntary arbitration is provided by would be inflamed, instead of being allayed, and the Acts of 1705 and 1836, wherein the report or suits multiplied, instead of being diminished, by award shall have the effect of a jury's verdict. In such a construction of the law. . . . After an other States similar enactments are in force. agreement to refer, a disclosure and hearing beIn England, notwithstanding the rule purports fore the referees, and an opinion expressed or to be an order of Court, whereby the matters in intimated by them, upon the merits, a discontinudispute are referred to the final determination of ance cannot be regarded as a matter of right and the arbitrators, yet the authority of the arbitra- would only be permitted upon very cogent reators is regarded as derived from the submission sons, such, perhaps, as would invalidate the of the parties and not under the order of Court. award itself." So firmly is this held that no reference of a cause It follows from what has been said, that a subpending shall operate to stay the proceeding in mission, such as that now before us, is irrevocaCourt, unless it be expressed in the rule that the ble. It may be added that our Brother MITCHparties have agreed that all proceedings in the ELL, when presiding in the Common Pleas of action shall be stayed in the meantime. And Philadelphia, considered a similar question and when an award is duly made under a reference, came to the conclusion that a submission when by rule of Court, and is returned to the Court, made a rule of Court is irrevocable: Grimm v. no judgment is rendered thereon, as upon a mat- Sarmiento, 18 Philada. 307. ter ascertained through the agency of the Court. There is no force in the suggestion that the Anciently the successful party was left to his ac- agreement above quoted was not filed until after tion to enforce performance of the award, and the attempted revocation of the submission. even now, although the Court may grant an at- Where the latter is in a pending action, it is tachment for contempt, because of the non-per-treated as under a rule of Court, and it is unnecformance of the award, it is a matter of pure dis- essary to so stipulate in the agreement: Mancretion to grant such attachment or not, and in hattan Life Insurance Co. v. McLaughlin, 80 Pa. many cases it is accordingly refused. It thus 55, and cases there cited. So also an application, appears that the English practice is materially to set aside a reference, treats it as a rule of different from ours. While with us the consent Court: White's Appeal, 108 Pa. 474. of the parties is essential to the making of the We are satisfied that the Court below erred in order, when once made the order exists proprio making absolute the rule of June 28, 1897, and vigore, and when the subject matter of the case hence the first specification of error must be susis referred by the Court, the tribunal thus con- tained. The second specification is overruled. stituted takes cognizance of the matter referred The decree, striking off the agreement of subunder the authority of the Court. For the time mission, award of arbitrators and judgment enbeing, the controversy is withdrawn from the tered thereon, is reversed and set aside, and rule Court, and this necessarily operates as a stay of to show cause discharged at the costs of the deproceedings therein. And when the award is fendant; and it is further ordered that said agreereturned, unless it can be impeached for just ment, award and judgment be and the same are cause, judgment thereon follows of course, as a hereby fully reinstated, with like force and effect judgment of the Court follows upon any other as if said rule had been discharged by the Court matter legally ascertained by it or through the below. agency of its officers: Williams v. Craig, 1 Dal. 314; Tyson v. Robinson, 3 Ired. 333. In Ferris v. Munn, 22 N. J. Law, 164, the Court speaking of our American practice said: "The proceedings and report of the referees are in the Superior Court. H. B. May 9, 1898. Superior Court. Replevin. place of the act and verdict of a jury, and may be April, '98, 73. confirmed or set aside by the Court, but one of the parties might as well undertake to rescind the venire or revoke the proceedings of a jury as Lien for wages—Act March 7, 1873, P. L. 219— the rule of reference or the proceedings of the. referees." The evil consequences of a contrary practice, are well outlined by the Court in Pollock v. Hall, supra, wherein it is said: "When both parties have agreed to resort to that tribunal, it would be inconsistent with the general nature of an agreement to permit one of them alone to withdraw from its jurisdiction. Feuds The second section of the Act of March 7, 1873, P. L. 219, relating to Butler county, cannot operate to include in a lien for wages of employees of a contractor engaged by a lessee of an oil well to develop that purpose. and test the oil, a portable steam engine leased for Appeal of James M. Thompson, defendant, from the judgment of the Common Pleas of volves the construction of the local Act of March Butler County, entered in an action of replevin, 7, 1873, P. L. 219, and especially the second secwherein Sherman & Johnston were plaintiffs. tion. This section is as follows: "That all perThe evidence at the trial, before GREER, P. J., sons doing work for, on or about the erection, disclosed the following facts: George L. Ump- construction or repair of any engine, engine sted, lessee of certain oil and gas properties in house, tanks, derrick, building, machinery, wood Marion township, Butler county, obtained of or iron improvement, erected, constructed or reSherman & Johnston an engine for the purpose paired upon any leasehold estate as aforesaid, or of drilling wells. The contract for drilling was for boring, drilling or mining on said lease or let to one Albert. The engine was leased to lot for the development or improvement of the Umpsted. The price of the engine was $150, of same, whether such labor is or may be done by which, if they returned it, they were to obtain the day, month or year, or by contract for the credit of $125. Before the work had gone very tenant or tenants, lessee or lessees of such lot or far Albert, the contractor, transferred his con- lease of parcel of land, or for their use and benetract to the defendant. Employés of Albert fit; shall have a lien upon the personal property continued with Thompson and, not being paid, and fixtures on said lot or lease of ground, and under the provisions of the Act of March 7, 1873, upon such lot or leasehold itself for the price and P. L. 219, filed liens for their wages. The engine value of such work and labor: Provided, That was sold in execution. Plaintiffs brought re- such lien shall extend as to said labor leasehold plevin to recover it. Verdict for plaintiffs and judgment thereon. Defendant thereupon appealed. N. Black, (A. Russell with him), for appellant. J. M. Galbreath, (McJunkin with him), for appellees. only to the interest of the tenant or tenants, lessee or lessees therein, and nothing herein shall be so construed as to prevent laborers and mechanics from enjoying the privileges hereby granted as against the lessees or tenants of the like estates for any other purpose than that of the development of oil." July 29, 1898. SMITH, J. This action of re- It may be conceded that the subject of the statplevin was brought to recover a portable steam ute is within the legislative power; we do not engine used in the work of developing and test- deem it necessary to discuss that question. It is ing certain territory for oil and gas, while held undoubtedly true that the Legislature had no under a demise for that purpose. Under a special constitutional power to take or through the opAct relating to Butler county, certain workmen eration of a lien to appropriate one man's propwho had been employed in the work filed me- erty to the payment of another's debts. We chanics' liens for their wages against the lease- think, however, the Act may be construed in hold and the personal property thereon, including harmony with this principle. Our first duty is the engine in question, and obtained judgments. to ascertain the legislative meaning through the Executions were issued on these, upon which the established rules of construction, and if it contrasheriff sold the engine. The purchaser subse- venes no constitutional mandate to apply our inquently transferred his title to the appellant. terpretation to the case at issue. We must disThe plaintiffs were not made parties to those cover the legislative intention from the light proceedings, but notice of their claim was duly which the Act itself furnishes, if that can be done: given at the sheriff's sale. Dame's Appeal, 62 Pa. 417. The contention of Two questions arose at the trial; first, whether the appellant is that, under the section quoted, the plaintiffs had parted with the engine under a the personal property on the premises used in lease or under a contract of sale; second, wheth- the work of development, is subject to a lien, aler under the Act a mechanics' lien attached to though owned by a stranger who has no interest the property in dispute regardless of the actual whatever in the project; that as the proceeding ownership. The evidence as to the lease or sale is in rem the lien binds the property and the rested entirely in parol. The Court submitted execution follows the judgment, into which the this question to the jury, who found a verdict in lien has been merged. favor of the plaintiffs. This finding that the To this broad proposition we cannot assent. agreement was a lease and not a sale, either ab- It is not to be presumed that the Legislature solute or conditional, was fully warranted by intended to subject property to seizure and sale the evidence. The second question was reserved for the debts of those who are strangers to its by the Court as a question of law, and was dis- title and who have acquired no right to pledge posed of by entering judgment on the verdict it therefor. There is nothing in the Act or in its for the plaintiffs. title indicating an intention to affect the rights The principal question for our consideration in- of persons not interested in or connected with the subject matter of the statute. It was evi- of the territory, without regard to its ownership, dently the legislative purpose, as indicated by the this could have been readily and aptly stated. second section, to subject leaseholds and the Under the proviso, the scope of the Act is reproperty thereon of lessees, tenants and persons stricted in its operation to lessees and tenants having an interest in the operations, to the claims of leasehold estates and to persons conducting of persons employed in the work, when such op- the work for their use and benefit. The refererations are conducted under a demise of the ence to "the development of oil," might suggest premises; because leaseholds and personal chat- that this was the main subject of the statute, but tels were not within the purview of the general there is nothing in its provisions further than mechanics' lien laws, nor theretofore made sub- this, to warrant that view. Read in connection ject to lien by Acts of Assembly. with the proviso the Act applies to certain leaseThe contention of the appellant, briefly stated, hold estates and to personal property and fixis that the statute gives a lien upon all the per- tures thereon of the lessees and tenants, and, possonal property and fixtures on the leasehold and sibly of contractors and persons beneficially inupon the leasehold itself for the price or value of terested in the operations; as to the latter, it is the labor; that this creates two distinct liens, now unnecessary to decide. It does not, in terms one on all the personal property and fixtures used or by necessary implication, extend to the propin the work of development, and the other on the erty of strangers whether on or off the premises. leasehold; that by the proviso the lien on the The obvious purpose of the Act was to extend leasehold is limited to the interest of the lessees the protection of the mechanics' lien law to peror tenants therein, while that against the person- sons employed in the development of the leasealty and fixtures is unrestricted, and covers all hold estates therein described, and to afford them property on the premises and used in the busi- the right to file a lien against the leasehold and ness. In this proviso, which consists of a single the property and fixtures thereon of the lessees sentence, it is also stated that nothing therein and tenants, and, possibly to the like property shall be so construed as to prevent laborers and mechanics from enjoying the privileges granted "as against the lessees or tenants of the like estates for any other purpose than that of the development of oil." Evidently this refers to the There was no evidence in the case to show a property and the rights of lessees and tenants conditional sale of the engine; if the contention and of persons operating for their use. The of the defendant were true the alleged condition broad construction contended for would subject did not apply to the sale, but to the right to rethe tools of one employé to the lien of a co- turn the property thereafter at a certain price. employé. Clearly it does not include the proper- The testimony of the witnesses for the defendant ty of persons who are not tenants or lessees, and was equivocal as to whether the transaction was who are not engaged in the business of boring, a sale with the right to return the engine, or a drilling or mining on the leasehold. An inten- lease; but nothing was testified to by any witness tion to appropriate one man's property for the which tended to show a conditional sale. This debt of another should at least be clearly ex- question was fairly submitted to the jury in the pressed. It is not to be presumed or inferred light of the evidence, and their finding, which acfrom doubtful language. Nor is it to be assumed cords with the clear weight of the evidence, may that the Legislature intended to make so impor- be accepted as conclusive on the point. It is untant a qualification of the law of bailments by the necessary to consider the specifications in detail; inexplicit and indefinite language relied upon. what has been said substantially answers them If it was intended by this Act to extend the lien all, they are overruled, and the judgment is afto all personal property on the premises or to all firmed. property thereon and used in the development of those who are interested in the enterprise. This construction gives consistent effect to the entire Act, without conflicting with any part of the proviso. W. D. N. WEEKLY NOTES OF CASES. VOL. XLIII.] FRIDAY, DEC. 2, 1898. Supreme Court. Jan. '97, 353. [No. 8. Supreme Court. Grade crossings-Acts of June 19, 1871, P. L. The Acts of June 19, 1871, P. L. 1361, and May 14, 1889, P. L. 211, must be considered together and the duty still remains upon the Court to prevent grade crossings wherever it is reasonably practicable to From the end of the eastern approach a trestle would be constructed with a grade of about eight per cent., carrying the track to an elevation of 20 feet above the railroad, which would be crossed by a steel bridge, and then descending at a grade of 64 per cent. until the track of the Struthers' Iron Works crossing Water street is crossed at an elevation of 14 feet, where the grade becomes eight per cent. again to the western approach. This structure would be located on the southern side of Water street, east of the crossing and for some distance west, occupying 16 feet of the 39 feet available for public travel and the construction is such that the public could not travel beneath it. "A curve is made on the east trestle from the centre of the street to the south; and on the west side from the crossing northward to regain the centre of the street. This would leave 23 feet of street for public travel on foot and in vehicles east of the crossing, and seventeen feet on each side The jurisdiction to prevent grade crossings given of the trestle on the west. It would not be pracby the Act of June 19, 1871, sec. 2, is not in any way ticable for wagons to pass under the trestle, the restricted by the Act of 1889, permitting street rail-braces appearing to obstruct all passage. But if ways to cross railroads at grade. this were changed and avoided, the sidewalk avoid them. The reasonable practicability intended by the Act would necessarily occupy six or eight feet of the of 1871 is physical practicability. space, and the bents being sixteen feet apart it An overhead crossing could have been made by would still be impracticable. The roadway on erecting at a cost of $4000 a trestle sixteen feet wide the south side of Water street, west of the crossin a forty feet wide street, the whole structure being some 700 feet in length along the street, the struc-ing, would therefore be impracticable for general ture would have been unsightly and the damages use. which might have to be paid to private owners were unascertained: Held, the overhead crossing was reasonable, practicable and the attempt to make a crossing at grade should have been enjoined: Perry Co. R. R. v. R. R., 150 Pa. 193; Penna. R. R. Co. v. Electric Ry. Co., 152 Id. 116; Scranton & Pittston Traction Co. v. D. & H. Canal Co., 180 Id. 636. "Another plan is suggested rather than proved by the evidence, namely, a trestle constructed wholly on the sloping bank of the river on the east side and close to the south line of the street on the west. Such a crossing could be constructed, but its cost would be very great; it would be very dangerous to operate electric cars upon it, Appeal of the Pennsylvania Railroad Com- and it would cause very great injury to property pany, plaintiff, from the decree of the Common on the west of the crossing. Pleas of Warren County, refusing an injunction "The crossing shown in the plan could be conprohibiting the Warren Street Railway Company structed of wood for about $4000. Its life would from crossing the plaintiff's track at grade. be about ten years. This was a bill filed to prevent the defendant, an "The crossing of the plaintiff's tracks at grade electric street railway company, from laying its involves no damage or injury to the plaintiff tracks to cross at grade the railroad of the plain- apart from the danger of collision. The danger tiff on Water street in the borough of Warren. from collision would be obviated by the overhead Upon hearing the Court, NOYES, P. J., after crossing, but it would involve considerable danreciting the condition of the street, its use and ger to passengers traveling by electric cars, and the practice of the railroad company as to trains, the failure of the current while a car was on a found the facts as follows: grade concurring with a failure of the brake or "The only means of avoiding a grade crossing such a condition of the track as prevented the shown by the evidence is an overhead crossing brake from holding the car would, by reason of The plans for such the proximity to the river, make a serious acci constructed in Water street. a crossing are shown by exhibits. It consists of dent almost inevitable. a solid approach about fifty feet long at each "The erection of such a structure as here proend and rising from the grade of the street posed in the principal street of such a town as to six feet in height, where the trestle begins. Warren would be a very serious inconvenience and danger to the public, to say nothing of its passenger railways, but the Court did say that monstrous unsightliness. It would occupy 700 there are important differences in circumstances feet in length and 16 feet width of the principal between the crossing of one steam railway by street in a beautiful town, leaving the public for another and a crossing of a steam railway by a part of the way but 23 feet for all vehicles, mani-street passenger railway laid along a public street festly an insufficient width. There is no evidence or road. on the subject, but from our personal knowledge This is manifestly correct. The building of a of the location, it seems to us that it would be street railway does not ordinarily increase the quite impracticable to construct a subway cross-number of persons who cross at grade, but it ing by reason of the floods in the river, and there changes the style of carriage and changes the is no way of crossing on private ground,” motive power. We are not attempting to estab A decree was made that it was not reasonably lish a new grade crossing, for that has existed practicable to avoid a grade crossing, permitting since the plaintiff company first built its road the defendant to cross plaintiff's track at grade across the public highway, but are merely changand enjoining upon the defendant certain precau- ing the means by which some people may cross. tions against accident to insure the observance of which the defendant was required to enter security. The plaintiff took this appeal, and assigned as error the finding, that it was not reasonably practicable to avoid a grade crossing, and the consequent decree. The crossing of a steam road by a street car is quite a different thing than the crossing by a long train of steam cars, and so while the same law applies the circumstances differ. October 17, 1898. GREEN, J. In all our recent utterances respecting grade crossings of railroads J. Ross Thompson, (Thompson with him), for ap- we have expressed ourselves with an increasing pellant. emphasis against their allowance, and with a most earnest purpose to "prevent" them wherever it is "reasonably practicable to avoid" them. We consider this to be our plain duty in order to conform with the express letter of the Act of 1871, and to effectuate the prudential consideraThe Act of 1871 does not contemplate beauty tions, and the manifest policy which underlie the or sightliness, but protection to the public, and legislation upon this very important subject. A no matter how unsightly an overhead crossing recurrence to a few of our later decisions will be may look, it must be put up, if a dangerous grade desirable in this connection to illustrate their apcrossing of a railroad can be avoided. plication to the facts of the present case. The inconvenience or expense to the street railway company, or partial obstruction of the street, should not weigh as against life and limb, and its dangers to the public and employés of the railroad company. The Act of 1871, relative to grade crossing, ap- In Perry Co. R. R. v. R. R., 150 Pa. 193, the plies whether a steam railroad is crossed by an- Chief Justice, delivering the opinion, said: “We other steam road or a steam road is crossed by must consider the legislation bearing upon this an electric railway. It is a police regulation look- subject as a whole, and the Acts of 1849 and 1868, ing to the safety of the public and applies with before referred to, as modified by the Act of equal force as to either. Traction Co. v. Canal Co., 180 Pa. 636. Penna. R. R. v. Electric Ry. Co., 152 Id. 116. 193. 1871. The latter Act does not put the rights of the company desiring to cross the railroad of another, on a level with the rights of that comPerry Co. R. R. Co. v. Valley R. R. Co., 150 Pa. pany, but manifestly declares them to be secondThe fact that an overhead structure on a high-statute, the one that no unnecessary injury shall ary. Two thoughts are clearly expressed in this way imposes an additional servitude upon abut- be perpetrated on the road sought to be crossed; ting property, for which the owners may recover the other, that crossings at grade shall be predamages from a street railway erecting such vented whenever they can reasonably be avoided: structure, can have no weight with the Courts in Pittsburgh & Connelsville Railroad Co. v. The determining what is "reasonably practicable as Southwest Railroad Co., 77 Pa. 173. In that case applied to grade crossings under Act of June 19, we held that the Act of 1868 did not give a rail 1871." road corporation an arbitrary right to cross another railroad, regardless of the rights of the corporation injured and the safety of the public; and that the intent of the Act of 1871 is to disWe do not contend nor did the learned Court courage grade crossings, involving danger to the below hold that the Act of June, 1871, does not public, as well as injury to the company whose apply to crossings of steam railways by street road is crossed. A decree was entered prohibit Traction Co. v. Canal Co., supra. W. E. Rice, (W. D. Hinckley with him), for appellee. |