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dertake to do so for any reason, and that while the grant, and the new facts alleged could not so engaged she received this injury, then your enlarge his right as determined by the judgment. verdict should be for the defendant, because [Ed. Note.-For other cases, see Judgment, that would be contributory negligence upon her Cent. Dig. 88 1278-1281; Dec. Dig. § 744.*] part, and she would not be entitled to recover under such circumstances. If you believe, how- 2. JUDGMENT (§ 713*)-CONCLUSIVENESS. A final decree is conclusive as to plaintiff's ever, that in the ordinary course of her employment, and without disregard of such in- claim, and as to every matter offered and restructions as I have described to you, she received to sustain or defeat the claim and all ceived this injury, the verdict would be for the admissible matters which might have been so plaintiff, because she is a young girl, and her offered. employers were charged with the duty of furnishing her with a safe place to work, and with warning her of any dangers connected therewith. They were also charged with the statutory duty of properly guarding all machinery, all cogs and things of that kind, by which she might suffer injury."

As thus submitted the jury must have understood the instruction to mean that the plaintiff was entitled to recover unless the evidence adduced by the defendant satisfied them that she had received her injury when engaged in cleaning the machine while it was in motion. While this theory as to the happening of the accident was advanced by the defendant, it did not constitute the defense set up. The defense was, not that it had so happened, but that it did not happen, and could not have happened, in the way described by the plaintiff. It was not for the defendant to show that it happened in a way that would exempt it from liability, except as plaintiff's evidence had involved it in liability. The only question on this branch of the case was: Could the jury on a review of all the evidence, with reasonable certitude, conclude that the injury happened in the way and under the circumstances described by the plaintiff? If they could, then, provided they found as well that defendant was chargeable with negligence, plaintiff would be entitled to recover; if they could not, the accident remained unexplained, and no basis was furnished for a recovery.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1063, 1066, 1099, 1234-1237, 1239, 1241, 1247; Dec. Dig. 8 713.*1 3. WATERS AND WATER COURSES (§ 197*)— WATER COMPANIES · PUBLIC RIGHTS - ENFORCEMENT BY PRIVATE PARTIES.

Where, in an injunction suit, it appears that defendant is a public water company owing no duty to plaintiff as an individual distinct from the general public, plaintiff is not entitled to relief, because the water company has failed to recognize and protect equities existing between those dependent on it for their water supply.

[Ed. Note.-For other cases, see Waters and Water Courses. Cent. Dig. § 271; Dec. Dig. 197.*]

Appeal from Court of Common Pleas, Philadelphia County.

Bill for an injunction by William Spink against the Philadelphia Hydro-Electric Company, a corporation, and others. From a decree sustaining demurrer to the bill, plaintiff appeals. Affirmed.

The facts appear in the opinion of the Supreme Court, and in Spink v. Schuylkill Navigation Co., 240 Pa. 619, 88 Atl. 10.

The plaintiff, inter alia, averred in his bill that the primary purpose for which the navigation company was incorporated was the maintenance of a waterway for transportation purposes, and that the right to sell water for power purposes was given by the state as an incident thereto, for the purpose of developing transportation business by encourThe fourth assignment of error is that the aging and assisting the conduct of manufaccharge of the court as a whole was errone-turing enterprises along the line of the canal; ous, inadequate, and misleading. signment we sustain for the reasons above stated.

This as

The judgment is reversed, and a facias de novo is awarded.

(245 Pa. 143)

venire

SPINK V. PHILADELPHIA HYDRO-ELEC-
TRIC CO. et al.

that the company had been so managed that it had ceased to conduct any transportation business whatever over its waterways, and that the canal upon which plaintiff's property abuts had become impossible of use for the passage of boats and barges, inter alia, because of the rapidity of the current of water flowing through it; that the navigation company was, and for many years past had been, a water company, maintaining its works for the purpose of selling water and water power, and deriving its revenues from the sale of water to owners of manufacturing plants abutting on its canal, and that as such it A judgment determining the respective was and became the duty of said defendant rights of grantor and grantee under a grant to to treat alike and without discrimination all supply water for power purposes, and rendered those who used and depended upon the water in a proceeding to restrain the grantor from sold by said defendant for power purposes; installing a device to limit the grantee's water supply to the amount provided in the grant, was that the defendant navigation company, in conclusive in a subsequent proceeding to en- violation of its duty and the rights of plainjoin the grantor and his assignee from installing tiff, had discriminated against him (a user the same device, where it did not appear that

(Supreme Court of Pennsylvania.

April 20,

1914.) 1. JUDGMENT (8 744*)-RES JUDICATA-WATER RIGHTS.

the grantee was threatened with any diminution and purchaser of water for a long period of with the supply to which it was entitled under years) in favor of the defendant, the Hydro

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 91 A.-39

Electric Company (a recent user of water), | the former bill, charges that the navigation to whom it was attempting to sell all the company has entered into a contract with the surplus water power (of which there was a Hydro-Electric Company under which it has large quantity) produced by the works of the agreed to sell to the latter company all the navigation company, and at a lower rate than water it controls in excess of the 200 square plaintiff had been paying and was willing to inches of water granted to the appellant and pay; that the contract between the defend- other similar grants to other mill properties ants was illegal and void as contrary to adjoining the canal, and that the Hydro-Elecpublic policy, and in violation of the charter tric Company, in assertion of a right under powers of the navigation company; and that this contract, has erected an obstruction in the Hydro-Electric Company acquired no the canal at the opening of the forebay of right under it to obstruct the flow of water appellant's property which has reduced the through the forebay of the premises of plain-volume and head of water supplied to aptiff, or to take for its own use water he had pellant's mill, and thereby prevented ap theretofore used and desired to continue to pellant from operating his water power mause and pay for, and which was necessary to chinery as he was accustomed. The bill nothe operation of the machinery installed in where, however, charges that the obstruction his premises in 1889 and continuously oper- had so reduced the supply of water that in ated thereafter. consequence less than the 200 square inches to which appellant is entitled under his grant passed into his forebay. What we decided in the former case and it was the one point in issue-was that the navigation company had the right to do the thing that is here complained of. The fact that it has been done by another company that had acquired all the rights of the navigation company marks a distinction between the cases, but denotes no difference. A demurrer was filed to plaintiff's bill on the ground that:

The bill prayed for a decree declaring the navigation company to be a water company subject to the duties and obligations of a public service corporation, and directing the navigation company to furnish plaintiff with water necessary for the operation of his turbine wheel in the quantity heretofore taken by him, at a reasonable price, and at as low a price as defendant was furnishing water to other consumers; for an injunction requiring defendants to remove the obstruction limiting the amount of water supplied to plaintiff; a decree determining that the navigation company had no power to confer on the HydroElectric Company the right to install any device restricting the amount of water used by plaintiff; to determine a reasonable sum to be paid for the excess water; and for gen-vious determination of his rights in the premises eral relief.

Argued before FELL, C. J., and POTTER, ELKIN, STEWART, and MOSCHZISKER,

JJ.

"It appears in said bill that it has been judicially determined that complainant is not entitled to receive water in excess of amount to which he is entitled by grant as aforesaid; that complainant does not complain that he is not receiving the amount of water to which he is so entitled, and sets forth no after-discovered facts, and alleges no valid reason why the pre

should not be final, or why the relief refused him in said previous suit should now be granted."

The demurrer was sustained, and the appeal is from the decree so entered. The presW. W. Porter, of Philadelphia, for appel-ent bill contains averments which did not aplant. H. B. Gill, H. S. Drinker, Jr., William B. Linn, and A. M. Beitler, all of Philadelphia, for appellees.

pear in the first bill; but none, accepting all as true, however much they might qualify the right of the navigation company to grant to the Hydro-Electric Company all its excess water, could enlarge appellant's right with respect to the amount of water he is entitled to derive from the canal. He is receiving today all that he is entitled to receive under our former adjudication and controversy with respect to that amount is at an end.

STEWART, J. [1] The issue sought to be raised by this proceeding is identical in every material respect with that presented and adjudicated in Spink v. Schuylkill Navigation Co., 240 Pa. 619,1 and, notwithstanding in this proceeding the Philadelphia Hydro-Electric Company has been brought in as a code- [2] The decree in that case was a finality fendant, the real parties to the issue are the as to the claim there made by the plaintiff, same. In that case we distinctly held that and as to every matter which was offered nothing that had occurred between the appel- and received to sustain or defeat the claim. lant and the navigation company subsequent The new averments relied upon to avoid esto the date of the grant from the latter to the toppel relate wholly to the rights, privileges, former had in any way enlarged the terms and obligations of the navigation company, of that grant; that the grant itself de- under its charter; and these are urged upfined the rights of the parties; and that the on our attention because appellant would navigation company under the terms of its derive therefrom some obligation on part of contract had a right to install in appellant's the navigation company to afford him a larger forebay the mechanical device it contemplat-supply of water than his grant calls for, beed using for the purpose of limiting appel-cause of an equitable right on his part to a lant's water supply to 200 square inches. The share in the excess of water granted to the present bill, reciting the proceedings under Hydro-Electric Company. These averments

might be disposed of with the single observa- duty to this appellant, and, as we have seen, tion that all that is alleged therein was admissible matter which might have been offered in the former case, and not having been offered the decree in the former case is as conclusive as though these matters now set up had never existed.

[3] But, even though it be to prolong unnecessarily this opinion, we shall advert briefly to the merits of this contention as it is defined in the first proposition in the brief of argument. No more will be necessary since all the other propositions stand or fall with this. The proposition is:

"That the defendant navigation company, within the limitations of its supply of water rendered available for power purposes, is a public water company, and must recognize and protect the equities existing between those dependent upon it for their supply of water."

the fact, if it be a fact, that appellant has suffered to a larger extent than some others in consequence of the failure of the navigation company to discharge its duty to the public, whether by discrimination or otherwise, the distinction would be simply one of degree; and, while appellant might have his common-law remedy in such case, it would give him no standing to enforce a performance by the navigation company of its duty to the public, and that is what this bill attempts through its additional averments. Again, the equities averred in the proposition are such as are supposed to arise from the fact that the navigation company has sold all its excess water to the Hydro-Electric Company, and in so doing has unjustly discriminated against the plaintiff to his serious injury. We refer to this feature only because of the argument submitted on behalf of appellant. We have been reminded that in the opinion in the former case this occurs:

"Whatever equities appellant may have, and we are inclined to think he has some under all the circumstances, must be treated as the subject of adjustment by the parties themselves. The courts are not at liberty to grant equitable relief in violation of the express covenants of contracting parties."

The latter part of this proposition would be entirely correct were its predicate established, that is, that the navigation company is a public water company; but this is an assumption manifestly open to very serious question if there be nothing in the charter of the company supporting it other than that which is quoted in the plaintiff's bill, and on which he relies. Assuming for the sake of argument, however, that the company is a public water company, the appellant is The use made of this excerpt in the arguwithout standing to compel the company to ment at bar and in the briefs submitted gives discharge the duties it owes to the public. it an undue and mistaken emphasis. The We have heretofore held that the company equities there referred to are those unenforceowed no duty to the appellant, as an indi-able equities which can and often do prevail vidual distinct from the general public, that as between the parties themselves to bring it has failed to performed; therefore the in- about an amicable compromise and adjustjury here complained of is one that plaintiff ment. It is manifest that the reference could shared with the general public, and is not not have been to the particular equities specific in any other sense than perhaps the which the appellant sets up by his added disappointment is greater in his case than averments, since in the former case the conthat of some others. This, however, would be ditions from which the appellant seeks to one of degree simply, and, as said in Saylor derive them did not then exist; they only v. Canal Co., 183 Pa. 167, 38 Atl. 598, 63 Am. arose with the sale to the Hydro-Electric St. Rep. 749, this would not give standing Company by the navigation company of all to a private party to enforce public rights. its excess water, a sale which, so far as the In Buck Mountain Coal Co. v. Lehigh Coal record shows, was not even in contemplation & Navigation Company, 50 Pa. 91, 88 Am. when the former bill was filed. The case calls Dec. 534, the bill was to compel the defend- for no further discussion. ant company to reconstruct a portion of its For the reasons stated, the assignments of canal which had been entirely swept away error are overruled, and the decree is affirm. by a flood, and to compensate the complain-ed, at costs of appellant. ants for the loss to them of the means of transporting their coal to market. It was there held that plaintiffs were without standing to enforce this duty on the part of the company to the public in the absence of special injury to themselves or property, and in the opinion in the case what is meant by special injury is thus defined:

"By this we mean any injury, special in its operation, resulting from a failure to perform some specified duty to them, or to make compensation for injury and deterioration to their property, as contradistinguished from injury to them in common with the whole public, in the loss of a convenient and valuable highway."

We repeat, it has already been adjudicated that the navigation company owed no special

LEA V. SANSON.

(245 Pa. 392)

(Supreme Court of Pennsylvania. May 18, 1914.)

1. WILLS (§§ 607, 608*)-CONSTRUCTION.

Under a will giving the residue of testator's estate to his wife for life and providing that at her death the property should be divided into shares, and that to "my son C. I devise a life estate in his share if he shall then be living. Upon his decease his share of said realty shall pass to his descendants who shall then be living, who shall take the same in remainder * as they would have taken * * * had he died actually seised and possessed thereof," C. took merely a life estate, and not an estate tail such as would be enlarged to a fee under the rule of

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Shelley's Case and the act of April 27, 1855 (P. L. 368).

[Ed. Note.-For other cases. see Wills. Cent. Dig. 88 1368-1378; Dec. Dig. §§ 607, 608.*] 2. WILLS (8 608*)-CONSTRUCTION-RULE IN SHELLEY'S CASE.

Where it appears, either by expression or by clear implication, that by the word "issue," as used in a will, testator meant issue living at a particular period, and not the whole line of succession which would be included under "heirs of the body," it must be construed to be a word of purchase, and the rule in Shelley's Case can have no application.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1372-1378; Dec. Dig. § 608.*]

3. WILLS (8 608*)-CONSTRUCTION-RULE IN SHELLEY'S CASE-APPLICATION "DESCEND

ANTS"-"ISSUE"-"HEIRS."

The principle that the rule in Shelley's Case applies whenever such technical words of limitation as "heirs" or "heirs of the body" appear without more, though there are superadded words of limitation, such as "may be then living," does not apply where the word "descendants," and not "heirs," is employed; the word "descendants" being, at most, the equivalent only of "issue," and not of "heirs."

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1372-1378; Dec. Dig. § 608.*

For other definitions, see Words and Phrases, vol. 3, pp. 2014-2017; vol. 8, p. 7635; vol. 4, pp. 3778-3782; vol. 8, p. 7693; vol. 4, pp. 3241-3265; vol. 8, pp. 7677, 7678.]

4. WILLS (8 608*)-CONSTRUCTION-RULE IN SHELLEY'S CASE-BURDEN OF PROOF.

Whenever the word "descendants," which is not a technical word of limitation, appears in a will, the burden is on a party claiming that such word is equivalent to "heirs" or "heirs of his body" under the rule in Shelley's Case to show from the language of the will that it was so intended.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1372-1378; Dec. Dig. § 608.*]

Appeal from Court of Common Pleas, adelphia County.

Action by Charles M. Lea against Morris Sanson. From judgment for plaintiff, defendant appeals. Reversed and rendered.

MOSCHZISKER, J. [1] The question for determination in this case is: Did the plaintiff, Charles M. Lea, take an estate tail enlarged to a fee, or but a life estate?

The testator gave the residue of his estate to his wife for life, and directed that at her death the property should be divided into shares. The devise to the plaintiff was as follows:

"To my son Charles I devise a life estate in his share, if he shall then be living. Upon his decease his share of said realty shall pass to shall take the same in remainder, in such prohis descendants who shall then be living, who portions, with like force and effect as they Would have taken said real estate had he then died actually seised and possessed thereof."

The issue arose in a case stated wherein it was agreed that, if it should be decided that Charles M. Lea took a fee, judgment should be entered for him; otherwise for the defendant. The plaintiff secured the judgment, and the defendant has appealed.

The court below sustained the plaintiff's contention that the terms of the devise gave him an estate tail which, under the rule in Shelley's Case, and the act of April 27, 1855 (P. L. 368), was enlarged to a fee. We cannot agree in this conclusion; for it is apparent that the testator did not intend to use the word "descendants" in the sense of "heirs of the body" of the first taker, but simply to designate a certain set of persons to take directly from him (the testator) at a given time.

The words of the will are not sufficient in themselves to create an estate in fee sim

ple, for "descendants" does not comprehend "heirs" at law generally (Bates v. Gillett, 132 Ill. 287, 298, 24 N. E. 611); and the phrase Phil-"who shall be then living" restricts the word "descendants" to those alive at the time of the death of the first taker, thereby negativing the idea of a devise to "heirs of the body" or descendants to the remotest degree, which is the essential attribute of an estate tail. It is quite true that the phrase "shall pass to his descendants" strongly suggests an intent to make the first taker the source of inheritable succession, and, had the devise ended at that point, it could well be held to create an estate tail; but it did not, and this is the pinch of the case.

In addition to the facts set forth in the opinion of the Supreme Court, it appeared from the case stated that Charles M. Lea and Charlotte Augusta, his wife, agreed to sell to Morris Sanson, the defendant, the property in dispute; that, when plaintiff tendered a deed, defendant refused to accept the same, alleging that the grantors had not a title in fee to the property.

It was stipulated in the case stated that, if the court was of the opinion that the plaintiffs could convey a good and marketable title in fee simple, judgment should be entered for the plaintiff; otherwise to be entered for the defendant. The court entered judgment on the case stated for the plaintiff. Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ.

Horace Stern and Morris Philadelphia, for appellant. Beitler, of Philadelphia, for

[2] A clear statement of the principle which controls under circumstances such as presented here is to be found in the opinion of Mr. Justice Sharswood, in Taylor v. Taylor, 63 Pa. 481, 484 (3 Am. Rep. 565), where he said:

* *

that if it appears, either by expression or clear "It is a position not open to dispute implication, that by the word 'issue' [in this case 'descendants'] the testator meant issue living at a particular period, as at the death of the first taker, and not the whole line of succession, which would be included under Wolf, both of ly be construed to be a word of purchase; and 'heirs of the body,' it must necessariAbraham M. the rule in Shelley's Case can have no applicaappellee. tion."

*

And, again, in Robins v. Quinliven, 791 next, he states, "To each of my children, Pa. 333, 335, where it is stated:

* * *

"If there be on the face of the will sufficient to show that the word was intended to be applied only to descendants of a particular class or at a particular time, it is to be construed as a word of purchase, and not of limitation."

And in Jones v. Jones, 201 Pa. 548, 550, 51 Atl. 362, 363, where Mr. Justice Brown said: "When the testator annexes words of explanation to 'heirs' or 'heirs of the body,' as to heirs now living, etc., using the terms as mere descriptio personarum, or for the specific designation of individuals, a new inheritance is thereby ingrafted upon the heirs to whom the estate is given (4 Kent Com. 221), and they will be assumed to take as purchasers (Kuntzleman's Est., 136 Pa. 142 [20 Atl. 645, 20 Am. St. Rep. 909])."

Arthur and Nina, who shall then be living, and to the 'descendants' who shall then be entitled of any of my children then deceased,

devise its share, in fee-simple"; then follows the particular provision with which we are dealing. It seems clear that the testator first employed "descendants" as a mere descriptio personarum; hence, it is but reasonable to assume that he meant the word in that sense in the devise in question; and there is nothing called to our attention from the other parts of the will sufficient to overcome this assumption, or to show that he intended it as a synonym for the technical phrase "heirs of the body." The last words of the devise, which states that the descendants of Charles, living at the time of his Also see McCann v. McCann, 197 Pa. 452, death, shall take "in remainder in such pro459, 47 Atl. 743, 80 Am. St. Rep. 846; Hill portions with like force and effect as they V. Giles, 201 Pa. 215, 217, 50 Atl. 758; Find- would have taken said real estate had he lay v. Riddle, 3 Bin. 139, 166, 5 Am. Dec. 355. then died actually seised and possessed there[3] The principle is different, however, and of," as a distributive direction, accord with the rule in Shelley's Case applies whenever the inheritance laws, and, since estates tail, technical words of limitation, like "heirs" or after they have been determined to be such, "heirs of the body," appear without more; now descend as fee-simple estates (Stout v. and this is so even when superadded words Good, supra), if it were not for the presence of limitation are present, if they do not actu- of the superadded words of limitation which ally demonstrate that the technical words this direction contains within itself, and which precede them are intended merely to those that follow the word "descendants" designate specific individuals, and, generally-i. e., "then living"-these words of distribuspeaking, a phrase such as "may be then living" is not sufficient in itself to reduce these technical terms to words of purchase. Har rison v. Harris, 91 Atl. 617; Criswell's Appeal, 41 Pa. 288; Cockins' Appeal, 111 Pa. 26, 2 Atl. 363; and Hiester v. Yerger, 166 Pa. 445, 31 Atl. 122. But this last principle has no application in the present case; for here "heirs" is not used, and the word which is employed, "descendants," is not of like force; "at most, it is only the equivalent of issue" (Walns' Estate, 189 Pa. 631, 632, 633, 42 Atl. 299), which is a word that "yields readily to a context indicating its use as a word of purchase" (Stout v. Good, 91 Atl. 613), and which prima facie "has not the same significance as 'heirs of the body' (Anderson Law Dictionary).

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[4] "Descendants" is not a technical word of limitation; and whenever in a devise a word appears which is not strictly one of limitation, if the rule in Shelley's Case is sought to be applied by analogy, the burden rests upon him who claims such word to be the equivalent of "heirs" or "heirs of his body" to demonstrate from the language of the will that it was so intended. Stout v. Good, supra.

tion would not in themselves be sufficient to overcome what might appear to be an intent to create an estate tail. As it is, however, we have an instance of superadded words of limitation joined with a special direction for distribution; which combination, in a case like this, is usually held to be conclusive evidence of an intent that the remaindermen shall take as purchasers. Grimes v. Shirk, 169 Pa. 74, 77, 32 Atl. 113; Stout v. Good,

supra.

After considering all the relevant parts of the will (Kemp v. Reinhard, 228 Pa. 143, 77 Atl. 436, 29 L. R. A. [N. S.] 958), we are convinced that the learned court below erred in entering judgment for the plaintiff. The assignments of error are sustained. The judgment is reversed, and is here entered for the defendant.

(245 Pa. 383)

STOUT et ux. v. GOOD. (Supreme Court of Pennsylvania. May 18, 1914.)

1. WILLS (§§ 607, 608*) - CONSTRUCTION RULE IN SHELLEY'S CASE.

The testator uses the word "descendants" C. his house and lot for life, and upon her death Under a will giving to deceased's daughter several times; he first provides that, at the then "to the children of my said daughter death of his widow, his property shall be di- * * * and the issue of said children who may vided "into as many parts and shares as at then be deceased, provided, however, that time there shall be children of mine that in the event of C. leaving no isshe shall have the right to will then living and children of mine then dead said house," the daughter C. took only a life represented by 'descendants' then living"; estate in the property, and not an estate tail

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*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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