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VOL. IV.

YORKX LEGAL RECORD,

These offers were objected to by the

plaintiff on the ground that, by the marTHURSDAY, DECEMBER 6, 1883. No.40 riage of the plaintiff in 1834, he acquired

a vested interest in all the real estate his SUPREME COURT.

wife then owned or might acquire during

coverture, and although his wife did not Geo. W. Moninger v. Henry Ritner. acquire the property in controversy until The Act of 14th May, 1855, (feme sole traders) secures five years after the Act of 1855 was passto the wife taking advantage of it the privileges of the Act of 22d February. 1718, and the absolute and unquali: ed, still he had a vested constitutional fied right to dispose of her own property, real, personal by sale or will

right of property which the Act of 1855 Marriage does not give the husband a vested right to curtesy in the wife's estate,

could not disturb. Error to the Court of Common Pleas of

The court charged the jury that the verWashington county.

dict must be for the plaintiff. They so Henry Ritner, the defendant in error, found and judgment was entered upon the brought an action of ejectment in the verdict. The defendant took the writ, court below against G. W. Moninger to assigning for errorrecover a lot of ground in Washington ist. Overruling defendant's first offer, borough on which a large two-story brick which was as follows: “Defendant ofhouse had been erected by Mr. Moninger's fers in evidence record to No. 63 Decemvendor, David Aiken. On the trial the ber Term, 1873, for the purpose of showplaintiff proved his marriage to Ellen ing that Mrs. Ellen Ritner was declared Jones in the year 1834. The defendant a feme sole trader and entitled to all the admitted that the title to the property in provisions of the Act of 1855, to be folcontroversy was out of the Common- lowed by evidence that she conveyed the wealth and in Martha Poole, and that title to David Aiken, and that David AiMartha Poole, by deed dated July 30, 1860, ken conveyed the title to George W. Monand recorded the same day, had sold and inger, the present defendant." conveyed the same to Ellen Ritner. After 2d. Overruling defendant's second offer, evidence was offered as to mense profits which was as follows: “Defendant ofthe plaintiff rested. The defendant then fers to prove that at No. 63 December offered in evidence the record in the same Term, 1873, of this court, Mrs. Ellen Ritcourt, to No. 63 December Term, 1873, ner, wife of the plaintiff, presented her showing an application of Mrs. Ellen petition to the court, alleging that Henry Ritner for the benefits of the Act of 1855, Ritner, her lawful husband, had, without relating to feme sole traders, and the grant- cause, wilfully abandoned her about 1867; ing of the decree to her, giving her all the that the said petition was supported by rights and benefits of that act, to be fol- her own oath and the evidence of two lowed by evidence of the conveyance of disinterested witnesses ; that in pursuance the property to David Aiken and by David of the said petition, after notice by publiAiken to the defendant. This offer was cation, the court, upon the 21st of Octooverruled and bill sealed for defendant. ber, 1873, granted the following decree : The defendant then offered the record “And now, October 21, 1873, on the petiand decree, setting it forth in full in the tion of Ellen Ritner, of the borough of offer, to be followed by conveyances as Washington, said county, sustained by the above and evidence that the desertion al- testimony of two witnesses, and it appear. leged in the record had continued down ng to the court that the facts set forth in to Mrs. Ritner's death, and that during the petition are true, and that notice of such desertion the plaintiff had lived in this application has been given as directadultery with another woman.

ed by said court, and being satisfied of the overruled and bill sealed for defendant. justice and propriety of the application

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the court made a decree and granted the ington county, in pursuance of the Act of said Ellen Ritner a certificate that she the 14th of May, 1855, made its decree, on shall be be authorized to act and have the the 21st of October, 1873, constituting her power to transact business as a feme sole a feme sole trader, and had issued to her a trader, and that creditors, purchasers and certificate to that effect. That being thus all persons who may with certainty and fully empowered to dispose of her prosafety transact business with her the same perty as though she were sole, she, on the as though she had never been married. 29th of January, 1874, conveyed the lot By the court, J. P. Miller, Prothonotary; in dispute to David Aiken in fee, who afto be followed by the evidence that in terwards conveyed to George W. Moninpursuance of this decree Mrs. Ellen Rit- ger, the defendant. This offer was refusner, by deed dated January 29, 1874, re- ed, and the jury instructed to find for the corded same date in 4 Z, page 134 in con- plaintiff. In this intrepretation of the law, sideration of one thousand dollars, convey- and disposition of the case, we cannot ed the property in this dispute to David agree with the court below. Aiken, to be followed by evidence that t Taking that offered as proved, we David Aiken erected valuable improve cannot see why it should not determine ments thereon, and that on the 6th day of the controversy in favor of the defendant. April, 1875, he sold and conveyed the | The Act of 1855 is so plain, positive and same property to George W. Moninger, unambiguous in its terms, that no one by deed recorded April 9, 1875, 5 C, page need, for one moment, hesitate concerning 163, Recorder's office, in consideration of its design and intention. It secures to seven thousand eight hundred and eighty the deserted wife not merely the rights dollars, and that the defendant has made and privileges of a feme sole trader, under valuable improvements on the premises ; the Act of 1718, but it also confers upon to be followed by evidence that the plain- her the absolute and unqualified right to tiff deserted his wife in 1867, that he left dispose of her own property, real and the State, and lived in adultery with an- personal, as to her may seem best, and other woman, that this desertion continu- further provides, that in case she dies ined down to the date of the death of Ellen testate, such property shall pass to her Ritner; this for the purpose of showing next of kin as though her husband were that the plaintiff has no title to the pro- previously dead. About the fact, thereperty in dispute.”

fore, that Mrs. Ritner had the right, so November 5, 1883. GORDON, J. The far as it could be conferred upon her by plaintiff below claims title to the property this statute, to sell the property in quesin controversy by virtue of his right as tion, unencumbered by her husband's tenant the by curtesy in the estate of his curtesy, there can be no doubt. Moredeceased wife, Ellen Ritner, who died over, of her power so to sell and dispose sometime in July, 1880. As she was of this property, the certificate issued to seized of the lot in dispute during her her by the Common Pleas is, by the sixth coverture, were there nothing else in section of the act above recited, made conthe case, his right to have and hold it dur- clusive evidence, and so continues to be ing the term of his natural life, could not until it is revoked by the authority from be successfully controverted. But on part which it emanated. It follows, that the of the defense there was an offer made to court below, in ruling out the offer of the show that on the petition of Ellen Ritner, defendant, disregarded a plain and posisetting forth the fact that her husband tive injunction of the General Assembly. had, without cause, wilfully abandoned | But the counsel for the plaintiff below inher, the Court of Common Pleas of Wash- ) terposes the plea that Ritner, having been

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married to his wife Ellen, before the pas- But, in answer, it was objected, that, in sage of the Act of 1855, had such a vest- this Commonwealth, laws had from time ed right, not only in the property which to time been passed altering the statutes of she then had, but also in that which she distribution, and the manner of making of might afterwards acquire during their wills and that such laws had always been marriage, that the Act of 1855 was, as to considered sound and good, if in operation him, unconstitutional and void. In other at the time of the decedent's death, withwords, such was the inherent power of out regard to whose inchoate interests the marriage contract, that, without, re- they might affect. It was further said, gard to the performance of that contract that the Legislature might, at its discreon his part, the peculiar rights acquired tion, altogether abolish the common law at its inception, could not be abridged, right of dower, and repeal the statute of altered or modified by any power short of wills. But this doctrine bas peculiar his own will. But the statement of this force when applied to the facts in the case proposition is its own refutation. The in hand, and the error of the court below very premise on which the act is founded becomes all the more obvious. Mrs. Rit

ner's title to the property in dispute is that the marriage contract has been

had no existence until after the Act of violated ; that the husband has deserted 1855, and until the acquisition of that title his wife, and refuses to support and main- Ritner had no right in the premises intain her. It is, therefore, a curious tra

choate or otherwise. The Act of 1855 vesty on the constitutional powers of this could, therefore, not interfere with RitCommonwealth to say that the Legisla- matter of this controversy, for in it he had

ner's vested rights in and to the subjectture can make no provision for the sup- 110 such rights. On the other hand, whatport of an abandoned wife, if such provi- ever rights he may have had therein he sion happens to impinge upon some mar

held in subjection to the then existing ried right of the derelict husband. Butin

laws. Whether, then, we adopt the full

text of the case above cited or not, the dependently of the arguments which may Act of 1855 certainly is, as to the plaintiff's be drawn from the nature of, and duties right, constitutional and of full force, and involved in, the marriage contract, in fa- ought so to have been regarded in the vor of the constitutionality of the Act of court below,

Our attention has been called to the 1855, there is, in fact, no foundation on which to rest the attempted justification as ruling the contention in hand in favor

case of Ayetsky v. Goery, 2 Brewster 302, of the judgment of the court below. Rit

Rit of the judgment below. But as the facts ner's right to curtesy in his wife's estate of the case are not given it is impossible was no part of the marriage contract, but to say whether it has any applicability to it resulted from the operation of statutory counsel for the plaintiff in error has pro

the case before us or not. If, indeed, the enactments existing at the time of her

perly stated the facts upon which that death. This point was expressly ruled, case was based, it certainly does not, as in reference to a wife's dower, in Melezet's to the present contention, support the arAppeal, 5 Harris 449, and we take it for gument of the counsel for the defendant

in error. granted that no one will insist that the

The judgment of the court below is now right of curtesy is superior to that of reversed and a new venire is ordered. dower. In that case it was contended that the Act of 1848 was unconstitutional,

COMMON PLEAS. in that the rights of the wife are fixed and

Delaware County vested at the time of marriage, and that

Malin v. Worrall. this act essentially changed and interfered Trespass-Easements. with those rights as well as with those of

.

C. P. of

Where rain water has been accustomed to flow evenly

from the lands of one over those of his neighbor, mere the husband.

user will not give to the latter the right to have the even

flow maintained.

A land-owner cannot so change the natural conforma. tion of his land as to throw in a body, upon his neighbor's

in their Urban Servitudes, and their doclapa, water which has been accustomed to flow evenly trine of the rights of flumen and Stillicidover the surface.

ium did not materially differ from the Motion by defendant for a new trial.

English Common Law. The civil as well The facts in this case appear sufficiently

as the English law prohibited a man from by the opinion of the court.

projecting his roof so as to throw the rain November 5, 1883. CLAYTON, P.J.- water upon his neighbor. He was reThis was an action of trespass for enter- quired to construct his building so as to ing the plaintiff's grounds and opening carry water upon his own land. Ib. 176. trenches or ditches at four distinct places, The great question in this case was, and, by causeways built upon defendant's whether the defendant had acquired the private roadway, causing the surface right by user. The jury liave found that water from rains to flow into the plain- he had not. The only reason urged for a tiff's fields.

new trial is that the court erred in not The action was brought expressly to charging the jury that the defendant under try the right. From the natural slope of the evidence had to do all he had done the ground before the road was built, the without grant or user. rain water would flow regularly over the The court was asked to say, that one of plaintiff's fields along the entire line, but the consequences of a lawful use of his at no one place more than another. There lane was the wearing away, of the surwas no evidence that before the building face, and this he could lawfully prevent, of the road the water flowed in any given in whole or in part, in some places and channel. The evidence was that the rain not in others, as the proper use of his lane water not absorbed while on the defend required ; and if by these nieans the places ant's land would flow regularly and evenly of entrance of the water on the plaintiff's over the plaintiff's field.

land became changed the defendant is not If such a flow would be advantageous responsible if he did more than keep his to the plaintiff, it has been well settled lane in proper repair. that he could not compel the defendant In his argument upon this point, the to keep up the level of his land for the learned counsel contended that the defenpurpose of continuing the flow, nor could dant had the right to select the four places he even by continuous use acquire the in his lane and by building causeways right to have it continue to so flow upon there keep up the natural level of his him. The reason is obvious. He is not ground, letting the rut wash away, ana, supposed to consent to maintain the con- by building these causeways, make the formity of the surface of his ground in water which formerly flowed upon the statu quo. All he is required to do is to plaintiff along the entire line, flow into bis let the water take its natural course upon field in an accumulated stream. his own land and accommodate its flow We affirmed the point, but informed the to the changes in the conformation of the jury that if one of the consequences of the surface by Nature. But if he builds or building of the road was to change the improves his land by which its natural natural even flow over the plaintiff's conformation is changed, he must not ground and to cause it to run down the throw the water iv a body upon his neigh- side gutters until it found its natural outbor without his consent. Much less can flow, he had no right to build the causehe enter upon his ground and dig a ditch ways for the purpose of damming the to carry off the water from his own ground: water and throwing it in a body on the Gale & Whalley on Easements, 182. plaintiff. The jury was also charged that

While, therefore, the plaintiff could not if the water ran upon the plaintiff's land compel the defendant to use his land as to of its own volition the defendant would give him the benefit of the accustomed not be responsible for the damage it might How of rain water, neither can the defend- do, but he could not build the causeways ant gather it in streams, or dam it up on and open the ditches on the plaintiff's his own land, so as to discharge it in a land for the purpose of throwing the body on the plaintiff. He can let it flow water in a body on him. upon his own land in its acquired chan- Upon a careful review of the whole case nels until it finds a natural outflow on the we are satisfied the law was correctly plaintiff's, but he cannot help it to an out- stated, and as the case was fairly and exlet until it finds its natural flow. This is haustively tried, the verdict must stand. very old law. The Romans recognized it Rule discharged.

VOL. IV.

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car.

YORK LEGAL RECORD. failed to keep the machinery in proper re

pair, and that there was no omission of THURSDAY, DECEMBER 13, 1883. No. 41 duty on the part of the deceased or his

coemployees in not inspecting the brake COMMON PLEAS.

before using it. The car upon which this

most unfortunate accident occurred had Rigney v. Pennsylvania Railroad Co.

been left at Spring Grove station the eveRailroad-Contributory Negligence. ning before. There is nothing in the evi

A brakeman in the employ of defendant company, was dence to show that it was out of repair at ordered on a car that was being rup into a switch. The brakes on the car being detective, he was unable to stop that time, or that it had carelessly init, and met with an injury which resulted in his death. In an actiou brought by his widow and minor children, spected at either of the company's yards HELD, That plaintiffs could not recover.

where inspection was provided for. There It was a rule of defendant company that the brakeman should examine brakes before cutting a car loose from a were three such yards on this division of train, and de lent had been so told by the conductor. Held, his failure to do so was such contributory negli- the road-viz.: Columbia, York and Fredgence as to relieve the defendant from liability. The brake chain having been uuhooked, at a station

erick. Everything points to the conalong the line, by persons unknown, the defendant company was not liable for injuries received thereby, the de

clusion that the brake was unhooked, cedent having neglected to examine said brakes before getting on the car.

during the time the car remained on the Motion for compulsory non-suit.

switch. This brake was not broken in This was an action of trespass, &c., any proper sense of the term, but "unbrought by Catharine E. Rigney and her hooked” midway of the car, and thus its minor children against the Pennsylvania efficiency destroyed at both ends of the Railroad Company for the death of her

The defect was patent, and readily husband by injuries received while in de

observed by all who examined it. fendant's employ.

Was it, under these circumstances, the Deceased was a brakeman, and while defendant's duty to have some one at this acting in that capacity was ordered on a

station, charged with the special duty of car which was being shifted on a side inspecting cars temporarily left there. If track. The brake chains being torn, he

at this station, then of course at all other was unable to stop the car, and received stations where cars are taken on and put injuries which resulted in his death. off, and at every other point, where the H. Keesey and V.K. Keesey, for mo

ordinary use of the car, or the act of a tion.

tresspasser, the brake chain might become

disconnected. I can but think this would Niles and Niles, contra.

be holding a company to such a high deDec. 8, 1883. WICKES,P.J.-Before the gree of care, as the law never requires. plaintiffs can recover, they must show

But such a contingency as this was manthat the company defendant was guilty ifestly seen and provided for, by the rules of negligence, and that the conduct of of the company defendant which were the deceased or of his coemployees in no given in evidence. degree contributed to the accident.

By one of these rules, it made the It is not pretended that, the company conductor's duty "to see that the brakes defendant was guilty of negligence in di- of the cars in their train, are in good orrectly furnishing the deceased machinery der before starting, and to inspect them or appliances inadequate for the work he

as often as the train stops to take water, was to perform, or omitted to exercise

or lays off to pass other trains." And proper care in the employment of persons another rule makes it the duty of the who constructed the machinery or who aided the deceased in the execution of his brakeman to aid the conductor in making duties.

such inspection. It is said these rules do The contention is that the defendant not apply to the case in hand, because the

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