WEEKLY NOTES OF CASES. conveyances became vested in the plaintiffs. In the year 1828, the Commonwealth undertook the construction of the Pennsylvania Canal, and in adopting its route through Huntingdon, took the ends of eight lots, now belonging to the VOL. XLIII.] FRIDAY, DEC. 23, 1898. [No. 11. plaintiffs, at the river side, for the bed, bank and Supreme Court. Jan. '98, 136. towing path of the canal. In 1857, the Pennsylvania Railroad Company purchased the canal from the State, and afterwards conveyed it to the Pennsylvania Canal Company, which last Supreme Court. April 20, 1898. named company reconveyed it to the railroad Smucker, Executor etc., and Cunning-company in 1889. The other facts of this case ham v. Pennsylvania Railroad Com- Evidence-Ancient documents-Conclusiveness of Public documents, duly filed in the proper office, are admissible in evidence, on a question of boundary, and they are conclusive as to the matters therein set forth. are sufficiently shown by the opinion of the Superior Court, WICKHAM, J. The plaintiffs claimed that their lots in the borough of Huntingdon ran to the river, and that as the location and construction of the canal left a strip between the bed of the canal and the river, which was not appropriated by the Commonwealth, this strip belonged, inter alia, to their lots, and with any subsequent accretions belonged to the owners of the land. The defendant, on the other hand, claimed that the Commonwealth appropriated for the canal, from the southern ends of the lots, all that belonged to them from the north side of the In an action involving the question of the taking canal to the river, and, therefore, that the strip of land by the State for the purpose of a canal, and between the canal bed and the river belonged to the boundaries of the land so taken, a map over the railroad company. In support of this contensixty years old and found in the files in the proper tion the defendant offered in evidence a map, office of public works, was offered in evidence. This When such documents are muniments of title and of great antiquity, it is not necessary to prove that they were prepared at the exact time that the boundary was set off. map showed the boundaries and the payments of cer- duly filed in the department of public works at tain compensations for land taken were marked upon Harrisburg. This map was without date, but it it, but appeared to have been made some two years appeared to have been made some time in 1832. after the construction of the canal was undertaken: The defendant also offered in evidence certain Held, that the map was a public document of great antiquity, marking the boundaries of a great public improvement: Held, also, that its authenticity could not be questioned; and that being admissible in evidence, it was conclusive as to the facts set forth in it. releases from the owners of this property and payments made to them during the construction of the canal. The Court below held that the plaintiffs had not established their title, and directed a verdict for the defendant; whereupon Appeal of the Pennsylvania Railroad Company, the plaintiffs appealed, assigning for error, inter defendant, from the judgment of the Superior alia, this action of the Court. Court of Pennsylvania, reversing the judgment Upon appeal the Superior Court reversed the of the Court of Common Pleas for Huntingdon judgment, the opinion of the Court, delivered by County, in an action of trespass brought by J. WICKHAM, J., containing, inter alia, the followE. Smucker, executor of Frank Hefright, de-ing: ceased, and Ann Esther Cunningham, against "The subject matter of the present controversy the Pennsylvania Company to recover damages is a strip of land extending along the Juniata for injuries to certain tracts of land in Hunting-river, between Fourth and Fifth streets, in the don county, claimed to belong to said plaintiffs. borough of Huntingdon, the same consisting of Upon the trial, before BELL, P. J., the follow-the southern ends of lots Nos. 109, 110, III, 112, ing facts appeared: On November 21, 1787. the 113, 114, 115 and 116, in the aforesaid plan. This Commonwealth granted by patent to the Rev. strip is only a few yards wide, lies mostly, perWilliam Smith, D. D., late provost of the Col-haps altogether, between high and low water lege of Philadelphia, under a warrant and survey mark of the stream, and was unimproved, unenof George Croghan, a tract of land, which had closed and uncultivated when the defendant took for its southern boundary the river Juniata, and possession thereof. in 1795 Dr. Smith laid out the town of Hunting- "[Between the years 1828 and 1830 the Penndon on that part of the land adjoining the river. sylvania Canal was constructed by the State over Certain lots thus laid out, by subsequent mesne and through the lots the numbers whereof have just been given, and compensation was duly made nothing more in the case, their successors in title, to the owners for the taking and injury.] The whoever they may be, would hold co-extenPennsylvania Railroad Company in 1857 suc-sively.] It devolved on the plaintiffs to show ceeded the State in the ownership of the canal title to the premises in dispute, or some part property. In 1867 it conveyed all its rights there- thereof, in order to recover in whole or in part. in to the Pennsylvania Canal Company. The This they sought to do by offering conveyances canal company reconveyed to the railroad com- for the ends of the lots lying south of what they pany in 1889. allege to be the canal appropriation. As to most "In 1891, the railroad company, claiming that of the strip, their paper title seemed, prima facie, the State in constructing the canal had appro- good, unless the State in making the canal appriated the disputed land, and that, therefore, it propriated the land out of low water mark. The was part of the canal property, decided to use it Court below was of the opinion that the State left in connection with its adjoining lands for rail-no part of the strip, south of the canal, unapproroad purposes. To this end the company took priated; that the lots as laid out by Smith expossession of the strip, made fills, built embank-tended only to the bank of the river; and further, ments and laid tracks thereon. At the time the held that, even if the plaintiffs had shown an unplaintiffs' action was brought on August 8, 1891, doubted title, they could not sustain an action of the land was occupied by the defendant and im- trespass because they were not in actual occuprovements were still going on. [Naturally the pancy when the company entered on the land. first question presenting itself for solution is, For these reasons a verdict was directed for the whether Smith, under his patent from the Com- defendant. monwealth, took merely to the bank of the river, "As to the second ground for so ruling, we or to ordinary low water mark. The stream, it have already sufficiently expressed an opinion. is proper to say, was made navigable by Act of The first reason was for the jury to pass on, March, 1771. In view of the decision in Wood there being more than a scintilla of evidence that v. Appal, 63 Pa. 210, and the many earlier Penn- the State left some land, above low water mark, sylvania cases therein cited and discussed by Mr. unappropriated, and that as late as 1871, the ends Justice AGNEW, we cannot hesitate in holding, as of lots No. 110 and 111, or both, were occupied was there held, that the grant extended to ordi- by a building held by persons claiming under and nary low water mark, subject only to the rights through the parties, who owned at the time the of the public as to navigation, fishing, etc.] The canal was constructed. There was also other evidescription in Wood v. Appal, so far as we are dence proper to submit to the jury on this joint. concerned with it, is so similar to the one under In adopting the view he did regarding this matconsideration here that we reproduce it: 'Be- ter, the learned trial Judge was no doubt strongly ginning at corner hickory, at Pittsburgh Manor, influenced by certain words and figures, appearstanding on the bank of the Ohio river; thence ing on a draft of that part of the canal lying withby said Manor, south 14 deg. west . in the limits of the borough, which draft was and north 37 deg. east 60 perches to a corner iron-is on file in the proper office in Harrisburg. [It wood tree standing on the bank of said Ohio appears, however, from the defendant's own river; thence up the river 233 perches to the first statement, made when the draft was admitted in mentioned hickory, the place of beginning.' See evidence against the plaintiffs' objection, that it also Palmer v. Farrell, 129 Pa. 162. was not drawn until December 29, 1832, and both "[The next question for consideration is, whe-sides agree, as will be seen by reference to their ther Smith intended that the southern boundaries respective histories of the case, that the approof the lots above mentioned or any of them, priation, by the State, must have been made beshould run to the ordinary low water mark line. tween 1828 and 1830.] It is also shown, by reApplying the law as settled by the above deci- leases offered in evidence by the defendant, that sions to the description and plot of the town, we as to several of the lots at least, the damages for are satisfied that such was his intention, and that the taking had been agreed on, and paid to the each and all the lots extended to low water mark. owners as early as 1829 and 1830. The description carries the town lines on the "In Pennsylvania Canal Co. v. Dunkel, 101 Pa. south to that point, and the plot shows no street 103, decided in 1882, it was held that a draft ator strip of land reserved for the founder, or the tached to the report of the viewers appointed to public, along the stream. assess damages, together with all the explanatory "We are therefore constrained to hold, as a memoranda thereon, was admissible to show the matter of law, on the uncontradicted evidence be- location of the canal, because it was part of the fore us, that the grantees of these lots took title record of the proceedings, and as Mr. Justice to ordinary low water mark, and that, were there TRUNKEY says: 'It was made after the beginning of the canal and before its completion. It must November 21, 1787, the Commonwealth granted have been known to the parties interested. It is to William Smith, a tract of land, which had for consistent with the place where the canal was its southern boundary, the river; in 1795, Smith constructed.' In the present case, so far as we laid out the town of Huntingdon on that part can see, the draft was ex parte, was not used in, of the land adjoining the river. That his plan, and did not pertain to, either an amicable or ad- from its description, included all the land to the verse proceeding between the State and the land river, is too plain for discussion; no land was owners, was made after the canal was finished, intended to be left unappropriated on the bank, without the knowledge or consent of the owners, and none was left. In the year 1828, the Comand long subsequent to the settlement had with a monwealth undertook the construction of the number of the owners of distinct parts of the Pennsylvania Canal, and in adopting its route locus in quo. through Huntingdon, took the ends of eight lots "If it be contended that the draft was admissi- at the river side for the bed, berm bank and towble, as part of an official book or register, its ing path of the canal; in 1857, the Pennsylvania competency, unless offered in support of an act- Railroad purchased the canal from the State, and ual possession, and to explain the extent of the afterwards conveyed it to the Pennsylvania Canal possession and claim, which was not and could Company, which last-named company re-conveynot be the purpose of the offer here, is denied ed it to the railroad company in 1889. Unquesby the just rule laid down in 1 Greenleaf on Evi- tionably, this put in the railroad company the dence, 13th ed., section 485, as follows: 'It is entire right of the Commonwealth, which, it is deemed essential to the official character of these settled by numerous decisions, was not a mere books that the entries in them be made promptly, right of way, but a fee in the land appropriated. or at least without such long delay as to impair In this case, if the Commonwealth, when it lotheir credibility.' [It will hardly be contended cated and constructed the canal, took from the that even the State, notwithstanding its great southern ends of the eight lots, all that belonged powers, can make title for itself, at the expense to them from the north side of the canal to the of the rights of its citizens, by maps or drafts river, then defendant, when it constructed, in prepared in secret, years after the event to which 1891, a new embankment for its roadbed, was on they relate, the entering of which, in the official its own land. What was the extent of the approrecords, persons to be affected knew nothing of, priation by the Commonwealth for canal purand, if they did might be powerless to prevent."] poses in 1828, or the years immediately following? A judgment venire facias de novo having been At the trial in the Common Pleas, that Court was entered, the defendant took this appeal to the of opinion, from the apparent conclusiveness of Supreme Court, assigning for error this action an old map filed in the department of public of the Court, and the portions of the opinion works at Harrisburg that plaintiffs had not made given above in brackets. out such case as required the submission of the John D. Dorris, (William Dorris with him), for evidence to the jury, and directed a verdict for appellant, cited Com'th v. Alburger, 1 Wharton, 469. Penna. Canal Co. v. Dunkel, 101 Id. 103. The purchaser of the State canals only acquired title to so much as was actually taken and permanently occupied by the State for canal pur defendant. On appeal to the Superior Court, that Court reversed the judgment, holding that there was more than a scintilla of evidence that the State had left a strip of land unappropriated, and that the jury should pass upon it. The controlling question in the case with the Superior Court, was, what effect should the map have in determining the title to the land? The able Judge of that Court who delivers the opinion, concedes in effect, that the old map does show an appropriation by the State, of all the land between the river and the canal, but as it shows on its face no date, and from the admission of defendant, it must have been made about the year 1832, two years after the assumed completion of the canal, it was not conclusive in favor of deOctober 17, 1898. DEAN, J. The controversy fendant's right; that the State could not frame a is as to a strip of land, only a few feet wide, be- paper or draft two years after the event and use tween the main line of the Pennsylvania Rail-it as evidence of the extent of the appropriation. road and the Juniata river, where the railroad We think this a departure from the settled law runs through the borough of Huntingdon. On of evidence in this State in reference to such poses. Railroad Co. v. Sharp, 26 P. L. J. 129. documents. The map was over sixty years old; pensation, is not a writing between individuals; it was found in the files in the proper office at it is a public document, showing the boundaries Harrisburg, in a book entitled "Plan Book No. of a great public improvement; the public itself, 23 of Public Works," in the very custody and acting through its representative, the State govplace it should have been. We do not think, ernment, projected the improvement, and defined that to give effect to such a map, thus guarded, the boundaries of the land it appropriated. In as evidence, it was necessary that defendant doing this, it was confined within no prescribed should go further and show that it was framed limits; its right to take, was limited, only, by and filed at the exact time the State entered upon what it deemed necessary to the purpose; the the land of which the map purports to be the subject, the land owner, could make no effectual boundary. The undisputed evidence is that set-objection to the demand of the sovereign, as to tlements were made, with lot owners, in Hunting-the quantity or lines of the land. Hence, it was don, while the work was going on and for some not a paper between the parties as to boundary, years afterwards. Just when this work was fully but a signification by the Commonwealth, of the completed, does not clearly appear from the evi- quantity taken by boundary, leaving only open to dence. The learned Judge assumes as a fact objection, on part of the land owner, the amount that the map was made in 1832, and that the of compensation, and this would in no way affect canal had been completed before that time; but the boundary. The State, therefore, in the exeras late as March 21, 1831, the Legislature (see cise of its right of eminent domain, could, and P. L. page 195), passed an Act, directing the canal was bound to, make title for itself, and by its own commissioners to prosecute without delay the map indicate the bounds of the land. This map, work from Huntingdon to Hollidaysburg. Taken having been made about the time of the approaltogether, the evidence shows that the map was priation, and deposited in the proper place, its made, either while the work was progressing or authenticity could not thereafter be questioned. about the date of its completion, and was intend- Its admissibility is fully as well sustained on the ed to show the boundaries of the State's appro- facts, as that of the document in Commonwealth priation at that point. In Commonwealth v. v. Alburger, supra, where the map was a mere Alburger, I Wharton, 469, a copy of a plan of the copy made in London by Thomas Holmes, surcity of Philadelphia, purporting to have been veyor for William Penn, and which defines the made in 1683, and on file in the surveyor gen- boundaries of Franklin Square, in Philadelphia. eral's office, was offered to show boundaries and It was admitted, because of its antiquity, and beadmitted against objection. This Court said, it cause it was an official paper, found in the proper was undoubtedly evidence, being a copy of an place. The paper before us, is not a copy enofficial paper on file in the proper place and of graved in London, but the original, made by the great antiquity. In Huffman v. McCrea, 56 Pa. Commonwealth's officers; although no date is 95, tried in 1867, an old draft was offered and upon the paper itself, its contents, and the other admitted in evidence, which the witness who evidence, show, it was made about the time the identified it, said, he had first seen in 1836, and canal was completed: Holmes's map showed what that it then looked old; it was admitted, and this were the boundaries of Franklin Square, set apart Court held the ruling to be correct, because, on by the proprietor for public purposes, this map a question of boundary, it was an ancient docu- shows the boundaries of the land taken by the Commonwealth for a public improvement, and This, then, was an ancient document, bearing was, therefore, admissible for that purpose. Betwo distinct characters, one, inter partes, the ing admitted, it is conclusive in favor or defendCommonwealth and the lot owners concerning ant, for it shows no land was left between the compensation, the other, that of a public docu- river and the canal unappropriated. ment. The learned Judge of the Superior Court, in his reasoning, seems to treat it only as the first, for he says, "It will hardly be contended, that even the State, notwithstanding its great powers, can make title for itself at the expense of the rights of citizens, by maps or drafts prepared in secret, years after the event to which they relate." We are not prepared to say, that viewing the paper as a mere contract, between individuals, this would not be correct, though there are cases which hold such a document even then admissible. But this, except as to com ment. The judgment of the Superior Court is reversed, and that of the Common Pleas affirmed. S. H. T. Jan. '98, 21. Supreme Court. February 17, 1898. Becker v. Lebanon and Myerstown Ry. Co. and his family as a farm and homestead. The dwelling is fourteen feet from the southern line of the turnpike, and is separated from the highway by a fence. The plaintiff asserts that the Equity- Injunction-Act June 19, 1871-Inter-line of his land embraces twenty-five feet of the pretation of word "shall" in Act. An injunction is of grace and not of right, and will not be awarded where the benefit to the com road, and for the purposes of this case it will be assumed that he owns the fee to that point, subject to the turnpike company's right of way. The plainant is entirely disproportionate to the injury land is rural but lies in a thickly settled region. to the respondent. "2. In February, 1892, the defendant company Delay in an application for injunction is a serious was incorporated under the street railway Act objection, and where, in the meantime, the defen- of May 14, 1889, P. L. 211. Its projected line of dant has materially changed his position, and es-road is described in its articles of association as pecially where such change has been to the benefit of the community, it will be error to allow an in- beginning at Eighth and Walnut streets in the junction; the injury, if any, can be compensated city of Lebanon, thence over certain streets in in damages. The Act of June 19, 1871, P. L. 1361, the language of which is: "It shall be the duty of the Court to examine, inquire and ascertain whether such corporation does in fact possess the right or franchise the city until the township of North Lebanon is reached at Lehman street, thence through the township along Lehman street (at this point, an unpaved township road) to the intersection of to do the act from which such alleged injury to that street or road with the Berks and Dauphin private rights, or to the rights and franchises of turnpike at Avon, thence along the turnpike to other corporations, results; and if such rights or Railroad street in the village of Myerstown, enfranchises have not been conferred upon such corpo- tering the townships of South Lebanon and rations such courts, if exercising equitable power, Jackson on the way, and thence along Railroad shall by injunction, at suit of the private parties or other corporations, restrain such injurious acts," street to the Philadelphia and Reading Railroad. was intended to reinforce and make clear the power No part of the road has been built, however, exof courts to inquire into the rights and franchises cept the section beginning at the village of Avon of corporations in suits by private individuals, and The word "shall" when used by the Legislature with reference to a court, is usually a grant of authority and means "may," and even if it be intended to be mandatory it must be subject to the necessary limitation that a proper case has been made out for the exercise of the power. perhaps in some degree to extend the class of cases and ending at Railroad street in the village of in which such inquiry is open to suitors without Myerstown in the township of Jackson. So far the intervention of the Commonwealth. as appears, permission was never asked from the city councils to build within the city, nor from the supervisors of North Lebanon township for permission to build along Lehman street. The whole of the line constructed is upon the turnpike, and the damages due to the turnpike company were assessed by proceedings in Court and Appeal of John Adam Becker, plaintiff, from afterwards paid. The north rail of the track from the decree of the Common Pleas for Lebanon Avon eastwardly for about a thousand feet proCounty, in a proceeding in equity for an injunc-bably lies within the township of North Lebantion against the Lebanon and Myerstown Street on, and was laid after permission so to do had Railway Company, to restrain the laying of its been refused by one of the supervisors. In Jacktrack on the highway in front of plaintiff's land. son township the supervisors agreed to the conThis was a proceeding in equity, and was struction as far as Railroad street, but refused In South heard on bill, answer and proofs, before Mc-| permission to build on that street. PHERSON, J., who filed the following opinion and Lebanon township the supervisors consented that finding of facts: the road should be built; and after passing the thousand feet above referred to, the whole of defendant's road is in South Lebanon township un"1. Since April, 1881, the plaintiff has been, til a point is reached beyond the plaintiff's land. and is now, the owner in fee of a tract of land "3. The work of location and construction was in South Lebanon township, lying along the begun in the summer of 1893, but before the south side of the Berks and Dauphin turnpike, laborers arrived at the plaintiff's land the present a toll road that has been in existence for many bill in equity was filed. It averred that the railyears. The land fronts upon the turnpike about way, if constructed in accordance with the locasix hundred and fifty feet and contains eighteen tion, would be a source of inconvenience and acres. Upon this tract a dwelling house, a barn danger to the plaintiff and his family in passing and other outbuildings are situated, and the between the turnpike and his buildings on foot or tract and dwelling are occupied by the plaintiff with a vehicle; that he would also be deprived of "FINDING OF FACTS BY THE COURT. |