and the decree appealed from should therefore for under the 17th section of the Act of 14 May, be reversed. 1889. This was embodied in the decree as The decree dismissing the bill is accordingly follows: reversed, and the perpetual injunction specially "And now, November 7, 1895, the injunction prayed for, is now granted against the Harris- heretofore granted is continued until further burg and Mechanicsburg Electric Railway Com- order of the Court. The injunction will be dispany, one of the defendants, with costs to be paid solved if said company shall, in the manner above by defendant; and, as to the other defendant, the indicated, obtain the right to build upon the bill is dismissed. turnpike road. It is ordered that the defendant pay the costs of suit." H. B. A petition was subsequently presented to the Court setting forth that it had been impossible Jan. '96, 320. May 1, 1896. to agree with the turnpike road company as to Harrisburg, Carlisle and Chambersburg the amount of damages to be paid for crossing Turnpike Road Company v. Harris- its road, and viewers were appointed and report burg and Mechanicsburg Electric was made of the amount of damages which would Railway Company. be sustained by the turnpike road company. Street railways—Constitutional law-Eminent domain—Provision for “just compensation” — Constitution, Arts. III., sec. 3; XVI., sec. 8. A motion to quash these proceedings, and exceptions filed to the report of the viewers, were overruled and the report confirmed. The damages were paid into the Court. On March 16, 1896, the railway company offerThe provision of the Act of May 14, 1889, P. L. 211, ed in evidence the record and proceedings in the that up n payment into Court of the amount of the award of viewers, the right to build and use a portion of a turn- proceedings to assess damages, and moved for pike, shall vest in the railway company is unconstitutional, the dissolution of the injunction granted Sepbeing in violation of Art. XVI., sec. 8, of the Constitution tember 3, 1895. This offer was objected to on of Pennsylvania, which prohibits the appropriation of behalf of the turnpike road company, but the obproperty without paying or securing to the owner thereof just compensation. jection was overruled and the injunction dissolved. Just compensation in this constitutional sense is the amount that may be recovered upon the trial, according The plaintiff took this appeal, and assigned as to the course of common law, of an appeal from the award error (1) the decree of November 7, 1895; (2, 3 of viewers, and it is not within the power of the Legisla- and 4) receiving the evidence of the proceedture to enable any corporation to take property without ings to assess damages, the Act under which they giving security for that amount. were had being unconstitutional; (5) dissolving the preliminary injunction. Appeal of the Harrisburg, Carlisle and Chambersburg Turnpike Road Company, plaintiff, from the decree of the Common Pleas of Cumberland County, in a suit in equity in which the Harrisburg and Mechanicsburg Electric Railway Company was defendant. John Hays, (with him E. B. Watts, E. J. McCune and W. F. Sadler), for appellant. The Act of 1889 is unconstitutional, its title is "An Act to provide for the incorporation and government of street railway companies in this The defendant was an electric railway company Commonwealth." Its 18th section confers power incorporated under the Act of May 14, 1889, and "to cross at grade . . any railroad operated by in the construction of its road it proposed to steam or otherwise, now or hereafter built;" cross the turnpike road of the plaintiff company. its 17th section confers power to lay tracks "upon A bill was filed praying that the defendant be over and along" turnpikes subject to a provision enjoined from entering upon the plaintiff's right in sec. 14, for the appointment of viewers to ascerof way at the point intended, and from construct-tain damages, and upon the appeal taken, “it shall ing or attempting to construct a street railway be competent to pay into Court the amount of upon or across the same or any part thereof in said award, upon which payment the right to use any manner. said track shall vest, and said sum shall await A preliminary injunction was granted on the the final judgment on said appeal.” 3d day of September, 1895, which, on hearing, The title gives no notice to steam railroads was continued until final hearing. This took and turnpikes that their rights are to be affected. place on November 7, 1895, and while the Court The Act is therefore, as to them, a violation of directed the injunction to continue until further Art. III, sec. 3 of the Constitution. order, it stated that it would be dismissed if the railway company would obtain the right to enter upon and occupy the turnpike road, as provided | Dorsey's Appeal, 72 Pa. 192. Payne v. School Dist., 168 Id. 386, Philadelphia v. Market Co., 161 Id. 522. Security for the payment of the just compensation to which the property owner is entitled must therefore be security for the amount that may be recovered, upon the trial of the appeal from the appraisement, before a jury. This is a plain The Act also affends Art. XVI., sec. 8 of the constitutional requirement and the Legislature Constitution, in that it assumes to allow property can neither dispense with it in whole or in part. to be taken on payment into Court of the amount The provision of the Act of 1889, now complained of the award of viewers and without paying or of, authorizes the corporation, when an appeal securing just compensation, and the land owner has been taken from the award of viewers by the and the railroad company have each the right to property owner, to pay into Court the amount of demand the ascertainment of such compensation the unsatisfactory award, and thereupon to take by a jury in the course of common law. Pusey's Appeal, 83 Pa. 67. Millvale Borough v. Poxon, 123 Id. 497. Until determined by a jury the amount of the damages is not known, and a jury is not bound by a bond given to secure them. Michael v. Crescent Pipe Line Co., 159 Pa. 99. A. G. Miller and J. W. Wetzel, for appellee. The Act of 1889 does not violate Art. III., sec. 3. It is a general Act relating to railways and every section relates to that general subject. Pa. R. R. Co. v. Montgomery County Pass. Ry. Co., 167 Pa. 62. Payne v. School District, 168 Id. 389. possession of, or proceed to injure or destroy, The Act does not offend against Art. XVI., well happen that when a judgment was finally sec. 8. entered on the verdict in favor of the property Lockhart v. Craig St. Ry. Co., 139 Pa. 419. owner ascertaining the amount of compensation D. W. L. & R. R. Co. v. Ry. Co,, 11 Pa. C. C. 165. due him, the corporation would be found to be insolvent, the line of railway with all its apOctober 5, 1896. WILLIAMS, J. There is no purtenances encumbered to its full value or transroom for doubt that the general purpose and char-ferred to a purchaser, and the plaintiff left withacter of the Act of May 14, 1889, entitled, “An Act out security or any responsible party to whom to to provide for the incorporation and government look, for the larger part of his "just compensaof street railway companies in this Common- tion" for the injury sustained by him. This is wealth" are within the constitutional powers of the a result that the constitutional provision was inLegislature. There may be particular provisions tended to guard against, and would effectually that are not. This appeal challenges the con- prevent if it was fully enforced. The Act of 1889 stitutionality of a provision found in the 17th sec- is unconstitutional in so far as it undertakes to tion, and raises a question not heretofore con- confer an absolute right on the corporation to insided. The 8th section of the XVIth Article of jure the property of the plaintiff by its crossing, the Constitution was intended to protect private without payment or security for the payment, of property against the exercise of the right of emi-a just compensation as it may be finally ascernent domain in a harsh or hasty manner. It tained upon the disposition of the appeal. provides that "just compensation" shall be made The decree was erroneous and must be reto the owner for all property taken, injured or versed, but it is not necessary that the injunction destroyed by any corporation, "which compen- shall be restored if the defendant will promptly sation shall be paid or secured before the taking, give the security that should have been given beinjury or destruction shall be permitted." The fore making the crossing. machinery by which "just compensation" may The decree is reversed and the record remitted be ascertained has been provided by law, and it with direction that the injunction be restored unincludes an appraisal made by viewers appointed less the defendant corporation, shall, within ten by the proper Court, an appeal by either party days after notice of this order give security to be therefrom, and an ascertainment of the amount approved by the Court below for the payment to of the "just compensation" by a jury upon a trial the plaintiff of such sum as may be found due after the forms of the common law. upon the disposition of the appeal from the award 1 of the appraisers now pending, as the damage deducted from the said balance due James S. sustained by, or the compensation due to the Smith. plaintiff by reason of the crossing of its turnpike road by the railway of the defendant at grade. Injunction not to issue if such security be given. Costs to be paid by the defendant. July, '95, 195. H. B. "To this finding of the auditor both parties filed exceptions. For the Andrew Smith Estate it is contended that any balance alleged to be due James S. Smith was more than twenty years overdue, and therefore is presumed to have been paid. The statement of the auditor, in his report, that the said 'balance has been admitted to be April 20, 1896. unpaid' is a sufficient answer to this contention. Moreover this invoking of the presumption of payment by the Andrew Smith Estate does not sound very equitable, when in the next breath they say that they availed themselves of this old agreement with James S. Smith, whereby they were to pay him fourteen hundred dollars, to procure the legal title to the same land which they had sold for twelve thousand dollars. Smith's Estate. Payment Presumption of from lapse of time- A title resting on the statute of limitations is a marketable title only where it clearly appears that the entry of the real owner is barred. "The auditor finds as a fact-inferentially at least-that the amount paid by the Andrew Smith Estate to obtain the Chestnut legal title was the correct balance due and was justly owing to the J., owning an equitable title to land, the legal title to which was in C., to secure certain sums agreed to sell to A., and give a clear title. Many years after A's heirs obtained the legal title under a decree, which required them to pay the sums due C. J. claimed a balance of Chestnut heirs. No proof to the contrary was the purchase money as due him by this contract with A. shown. At most there was but a general allegaAt the time of the decree C. had been out of possession tion by counsel for James S. Smith, at the argufor fifty years: Held, that the amount paid to C. might be deducted ment, that all the purchase money for the legal from the balance due J. MITCHELL, J., dissented. title had been previously paid but it is but fair to presume that, if any proof of such fact had been in existence it would have been produced before the auditor, and would there have been set up as an insuperable bar to the claim of the Andrew Smith Estate for a deduction for money expended in perfecting title, as said expenditure Appeal of James S. Smith, from the decree was made without notice to James S. Smith. of the Orphans' Court of Clearfield County, dis- "But the general allegation of counsel for missing exceptions to the report of an auditor James S. Smith as to prior payment may be set appointed to distribute the proceeds of a sale of off against, and balanced by a counter allegation land of Andrew Smith, deceased. Where the contention that presumption of payment arises from the lapse of time ignores the decree of the Court and the finding of an auditor, the latter are, prima facie at least, sufficient to rebut the presumption, and to cast upon the person alleging payment the burden of showing it. The facts of the case appear by the opinion of the Court, BELL, P. J., upon exceptions to the report of the auditor, as follows: -likewise without proof-made by counsel for the Andrew Smith Estate that James S. Smith had quit-claimed his title to some third party. "Counsel for James S. Smith, however, con"The fund for distribution was the proceeds of tended that the action of the auditor, in deductthe sale of the land of Andrew Smith, deceased. ing from the balance due James S. Smith the Said land originally had been owned by the amount expended in perfecting the title by obChestnut heirs, who, by writing, agreed to taining the Chestnut legal title, was erroneous: sell the same to certain parties who assigned "First, because there had been no actual evictheir equitable titles to James S. Smith. On tion. January 25, 1865, James S. Smith, by writing, "Second, because the title to the land was good agreed to sell the land to Andrew Smith and to without so obtaining the legal title from the execute and deliver to him 'a good and sufficient Chestnut heirs. deed clear of all encumbrance.' "On the first point Patton v. McFarlane, 3 P. "Before the auditor, said James S. Smith claim- & W. 419, and kindred cases, were cited as estabed a balance of purchase money as due him under lishing the doctrine that to support an action said agreement. The auditor awarded him said upon a covenant of warranty an actual eviction balance, less an amount paid by the estate of An- must be shown, and it was argued that no one drew Smith to obtain the legal title from the ever disturbed Andrew Smith, or his estate, in the Chestnut heirs, together with twenty-five dollars possession of this land. This argument would be counsel fees. Certain costs of the audit were also conclusive were this an action on a covenant in a deed where the purchase money had been paid, equitable vendees was not an adverse possession, but this proceeding is in effect rather an action and the Act cited by counsel has no application for specific performance, or a suit to collect pur- to this case. chase money. This being so the rule of Patton "But, at best, this claim of the bar of forty v. McFarland does not apply, as in Pennsylvania years is a doubtful claim-open to serious legal a marked distinction is drawn between the case controversy and dispute; at best the title founded of a suit on a covenant of warranty contained in on it would be a doubtful title-a title open to a deed, and a proceeding to collect unpaid pur- legal question. And Andrew Smith was not chase money. In the latter instance it is always bound to accept a doubtful title. James S. Smith, allowable to set up partial failure of consideration in effect, is in Court tendering his title and by reason of encumbrances, or partial failure of asking that the balance of purchase money be title, and to deduct from unpaid purchase money paid him; the title so tendered must be a marketcompensation for such failure: SHARSWOOD, J., in able title: Nicol v. Carr, 35 Pa. 381; Herzberg v Knepper v. Kurtz, 58 Pa. 484. The same doctrine Irwin, 92 Pa. 48. is laid down in Stephens v. Black, 77 Pa. 142, 143; Barnes' Appeal, 46 Pa. 356, and other cases. "Indeed, it has been held that a title founded simply on possession is never a marketable title "Secondly, counsel for James S. Smith argued such as a vendee will be compelled to accept, that it was unnecessary to procure the legal title and the legal rule is so laid down in Waterman from the Chestnut heirs because there had been on Specific Performance, Sec. 412. However, more than forty years possession by Andrew this strict legal rule has been relaxed in PennSmith, James S. Smith and their predecessors in sylvania, but in Pratt v. Eby, 67 Pa. 402, SHARStitle which long continued possession was in itWOOD, J., says: 'A title depending on the bar self sufficient title, citing Act of 14 April, 1851, of the statute of limitation may be a marketable (Pur. Dig. 1211; Pepper & Lewis Dig. 2680) title which a purchaser will be compelled to acwhich makes forty years a bar to action for cept, provided it clearly appears that the entry lands. of the real owner or owners is barred: Shober v. Dutton, 6 Phila. 185.' "In the present case it would be doubtful whether the entry of the legal owner, the Chestnut heirs, was barred. Moreover in the same case of Pratt v. Eby, it is ruled that a purchaser will not be required to assume the risk of the presumption of payment arising from the lapse of twenty years being rebutted. "No judicial construction appears ever to have been placed on said Act of Assembly, but it seems to contemplate forty years of adverse possession. If this is correct there is, in the present case, no proof of such adverse possession. True it is, that in 1841 Geo. Cadwalader, attorney for James Chestnut, by writing agreed to sell to Beightol; who went into possession, and Beightol's equitable title passed to James S. Smith, who agreed to sell to Andrew Smith, and it is probable that these equitable vendees have been in possession since report I have arrived at the conclusion that it is 1841, but the legal title during all this time was in the original vendor, Chestnut, and the law presumes that these equitable vendees were holding under Chestnut and not adversely to him. "In Am. & Eng. Enc. of Law, vol. I, page 229, it is said: "After a careful consideration of the auditor's a correct adjudication except in one particular. The auditor deducted from the balance due James S. Smith for purchase money, not only the amount actually paid the Chestnut heirs to perfect the title, but also twenty-five dollars counsel fees paid. Such deduction of counsel fees was erroneous. "The attention of the auditor seem not to have Doubtless been called to the above cited case. "When a purchaser of lands, under an execu"In Fulweiler v. Baugher, 15 S. & R. 55, it is tory contract is let into possession, not having paid the purchase money, and not having received said: 'If the vendee does not give notice, but a conveyance, he holds in subordination to the appears and defends it has not been allowed him title of the vendor; and he cannot defeat a suit to recover his counsel fees paid.' in equity by the vendor to charge the lands with the payment of the purchase money, by interposing the lapse of time as a defence, without show- he was misled by the word 'expenses' occurring ing that his possession was open and notorious, in Kinley v. Crane, 34 Pa. 149, cited in his report, asserted as hostile to the right and title of the wherein it is said: vendor, and continued long enough to bar a recovery at law under the statute.' "There is no proof of any act or possession acquire by the conveyance from the plaintiff, and hostile to the Chestnut title, hence it is but fair the plain equity is that they should be allowed to presume that the possession of the various the full price paid for it, with interest and expen "If the defendants purchase this outstanding title, it becomes united to whatever interest they ses which should be deducted from the amount and no legal liquidation of the amount due, if due on the bond.' any, was ever had, nor asked. The estate through "But counsel fees are not properly embraced the administrator, simply volunteered to make under the term 'expenses' as is shown in the the payment. If any such balance ever was due, case of Hain v. Martin, 5 Watts 180, where the presumption of payment long since barred SERGEANT, J., says: its recovery." A. L. Cole, for appellant, "The fourth bill of exceptions is to the rejection of the evidence offered by the defendant of the fees paid to counsel in the ejectment brought by Hain against Martin, and the question is on October 5, 1896. MCCOLLUM, J. James S. the propriety of rejecting that evidence. No case Smith, by article of agreement, dated the 25th of has been referred to by the counsel for the plain- January 1865, sold to Andrew Smith, Jr., one tiff in error which justifies its admission. The hundred acres of land for $1400, and agreed to case of Penn v. Preston, 2 Rawle 14, cited as au- execute and deliver to the latter a good and thority for it, by no means supports the principle sufficient deed of it "clear of all encumbrances.” In Fulweiler v. Baugher, 15 S. & R. 45, an action In 1841 James Chestnut and Esther Reed owned was brought by the vendor of land on bonds this land, and George Cadwalader, their attorney given for the consideration money; the title of in fact, sold one half of it by artices of agreethe plaintiff was originally defective for part of ment to John Beightol, and the other half of it the land sold, but was perfected at the time of by like articles to John Fye. The interests thus trial. The defendants claimed a deduction from acquired by Beightol and Fye were vested in the purchase money, amongst other things of James S. Smith at the time of his sale of the land certain expenses, distinct from the cost of suit, to Andrew Smith, Jr. The latter therefore obwhich had been incurred in defending ejectments tained by his purchase from the former, the right brought for the defective part. But they were to have a clear title to the land, on payment of not allowed; the defendant not having given the the sum he agreed to give for it. The legal title plaintiff notice of the suits. The legal costs and to the land was then in James Chestnut and fees of suit would seem in general to constitute Esther Reed, or their heirs, as security for whatthe standard by which the liability of parties in ever balances were due on the contracts with this respect is to be measured. They furnish Beightol and Fye, and it was the plain duty of something precise and definite, and reimburse all James S. Smith under this agreement with Anthat is legally ascertained to have been expended drew Smith, Jr. to pay these balances. or incurred. The sums paid to counsel are Andrew Smith, Jr. paid on his contract with usually matters between the party and his counsel, James S. Smith $502.75 on the first of June, 1865, depending chiefly on their own agreements, in and $810 on the 27th of October, 1866. These paysome cases more, in some less. ments were duly endorsed on his contract and "Now May, 1895, the report of the auditor is are undisputed. It does not appear that the modified by striking out the item of twenty-five balance was demanded by James S. Smith, or that dollars counsel fees, deducted from balance of it was paid to him during the lifetime of Andrew purchase money due James S. Smith, so that the Smith, Jr., and it seems to be conceded that the amount due and payable to said Smith shall be former never tendered a deed to the latter in $67.93 instead of $42.93, as set out in the supple- accordance with the agreement between them. mental report, and said amount of twenty-five After the death of Andrew Smith, Jr., his legal dollars shall be deducted from the amounts set representatives desired to have the title to the apart for the widow and distributed to the heirs, land which James S. Smith had agreed to conout of the cash payment and second payment, vey to him, but they discovered that the heirs so that the amount so set apart for the widow of James Chestnut and Esther Reed claimed that shall be $1838.69 instead of $1847.03. and the there were balances due to them on the Beightol amount to be paid each heir shall be $525.35, in- and Fye contracts. An investigation in regard stead of $527.72, as set out in the auditor's report. to this claim resulted in the establishment of it, From this ruling this appeal was taken, on the and upon an ascertainment of the amount of the ground that the Court erred in dismissing the balances it was decreed by the Orphans' Court that exception: "The auditor erred in allowing a set upon payment of them to W. D. Bigler, attorney off against the sum due James S. Smith of the in fact, for the claimants, he should make, exmoney paid W. D. Bigler, attorney in fact, to ecute and deliver a good and sufficient deed in procure a conveyance of an alleged note held fee simple for the land to A. T. McClure, in trust by them. No notice of the application to make for the widow and heirs of Andrew Smith, Jr. said payment was ever given to James S. Smith | Under, and in pursuance of this decree the ad |