Графични страници
PDF файл
ePub

YORK LEGAL RECORD.

These offers were objected to by the plaintiff on the ground that, by the mar

VOL. IV. THURSDAY, DECEMBER 6, 1883. No. 40 riage of the plaintiff in 1834, he acquired

SUPREME COURT.

Geo. W. Moninger v. Henry Ritner.

The Act of 14th May, 1855, (feme sole traders) secures to the wife taking advantage of it the privileges of the Act of 22d February, 1718, and the absolute and unquali fied right to dispose of her own property, real, personal by sale or will

Marriage does not give the husband a vested right to curtesy in the wife's estate.

Error to the Court of Common Pleas of Washington county.

Henry Ritner, the defendant in error, brought an action of ejectment in the court below against G. W. Moninger to recover a lot of ground in Washington borough on which a large two-story brick house had been erected by Mr. Moninger's vendor, David Aiken. On the trial the plaintiff proved his marriage to Ellen Jones in the year 1834. The defendant admitted that the title to the property in controversy was out of the Commonwealth and in Martha Poole, and that Martha Poole, by deed dated July 30, 1860, and recorded the same day, had sold and conveyed the same to Ellen Ritner. After evidence was offered as to mense profits the plaintiff rested. The defendant then offered in evidence the record in the same court, to No. 63 December Term, 1873, showing an application of Mrs. Ellen Ritner for the benefits of the Act of 1855, relating to feme sole traders, and the granting of the decree to her, giving her all the rights and benefits of that act, to be followed by evidence of the conveyance of the property to David Aiken and by David Aiken to the defendant. This offer was overruled and bill sealed for defendant. The defendant then offered the record and decree, setting it forth in full in the offer, to be followed by conveyances as above and evidence that the desertion alleged in the record had continued down to Mrs. Ritner's death, and that during such desertion the plaintiff had lived in adultery with another woman. This was overruled and bill sealed for defendant.

a vested interest in all the real estate his wife then owned or might acquire during coverture, and although his wife did not. acquire the property in controversy until five years after the Act of 1855 was passed, still he had a vested constitutional right of property which the Act of 1855 could not disturb.

The court charged the jury that the verdict must be for the plaintiff. They so found and judgment was entered upon the verdict. The defendant took the writ, assigning for error

Ist. Overruling defendant's first offer, which was as follows: "Defendant offers in evidence record to No. 63 December Term, 1873, for the purpose of showing that Mrs. Ellen Ritner was declared a feme sole trader and entitled to all the provisions of the Act of 1855, to be followed by evidence that she conveyed the title to David Aiken, and that David Aiken conveyed the title to George W. Moninger, the present defendant.”

2d. Overruling defendant's second offer, which was as follows: "Defendant offers to prove that at No. 63 December Term, 1873, of this court, Mrs. Ellen Ritner, wife of the plaintiff, presented her petition to the court, alleging that Henry Ritner, her lawful husband, had, without cause, wilfully abandoned her about 1867; that the said petition was supported by her own oath and the evidence of two disinterested witnesses; that in pursuance of the said petition, after notice by publication, the court, upon the 21st of October, 1873, granted the following decree: "And now, October 21, 1873, on the petition of Ellen Ritner, of the borough of Washington, said county, sustained by the testimony of two witnesses, and it appearing to the court that the facts set forth in the petition are true, and that notice of this application has been given as directed by said court, and being satisfied of the justice and propriety of the application

the court made a decree and granted the said Ellen Ritner a certificate that she shall be be authorized to act and have the power to transact business as a feme sole trader, and that creditors, purchasers and all persons who may with certainty and safety transact business with her the same as though she had never been married. By the court, J. P. Miller, Prothonotary; to be followed by the evidence that in pursuance of this decree Mrs. Ellen Ritner, by deed dated January 29, 1874, recorded same date in 4 Z, page 134 in consideration of one thousand dollars, conveyed the property in this dispute to David Aiken, to be followed by evidence that David Aiken erected valuable improvements thereon, and that on the 6th day of April, 1875, he sold and conveyed the same property to George W. Moninger, by deed recorded April 9, 1875, 5 C, page 163, Recorder's office, in consideration of seven thousand eight hundred and eighty dollars, and that the defendant has made valuable improvements on the premises; to be followed by evidence that the plaintiff deserted his wife in 1867, that he left the State, and lived in adultery with another woman, that this desertion continued down to the date of the death of Ellen Ritner; this for the purpose of showing that the plaintiff has no title to the property in dispute."

November 5, 1883. GORDON, J. The plaintiff below claims title to the property in controversy by virtue of his right as tenant the by curtesy in the estate of his deceased wife, Ellen Ritner, who died sometime in July, 1880. As she was seized of the lot in dispute during her coverture, were there nothing else in the case, his right to have and hold it during the term of his natural life, could not be successfully controverted. But on part of the defense there was an offer made to show that on the petition of Ellen Ritner, setting forth the fact that her husband had, without cause, wilfully abandoned her, the Court of Common Pleas of Wash

ington county, in pursuance of the Act of the 14th of May, 1855, made its decree, on the 21st of October, 1873, constituting her a feme sole trader, and had issued to her a certificate to that effect. That being thus fully empowered to dispose of her property as though she were sole, she, on the 29th of January, 1874, conveyed the lot in dispute to David Aiken in fee, who afterwards conveyed to George W. Moninger, the defendant. This offer was refused, and the jury instructed to find for the plaintiff. In this intrepretation of the law, and disposition of the case, we cannot agree with the court below.

Taking that offered as proved, we cannot see why it should not determine the controversy in favor of the defendant. The Act of 1855 is so plain, positive and unambiguous in its terms, that no one need, for one moment, hesitate concerning its design and intention. It secures to the deserted wife not merely the rights and privileges of a feme sole trader, under the Act of 1718, but it also confers upon her the absolute and unqualified right to dispose of her own property, real and personal, as to her may seem best, and further provides, that in case she dies intestate, such property shall pass to her next of kin as though her husband were previously dead. About the fact, therefore, that Mrs. Ritner had the right, so far as it could be conferred upon her by this statute, to sell the property in question, unencumbered by her husband's curtesy, there can be no doubt. Moreover, of her power so to sell and dispose of this property, the certificate issued to her by the Common Pleas is, by the sixth section of the act above recited, made conclusive evidence, and so continues to be until it is revoked by the authority from which it emanated. It follows, that the court below, in ruling out the offer of the defendant, disregarded a plain and positive injunction of the General Assembly. But the counsel for the plaintiff below interposes the plea that Ritner, having been

married to his wife Ellen, before the passage of the Act of 1855, had such a vested right, not only in the property which she then had, but also in that which she might afterwards acquire during their marriage, that the Act of 1855 was, as to him, unconstitutional and void. In other words, such was the inherent power of the marriage contract, that, without, regard to the performance of that contract on his part, the peculiar rights acquired at its inception, could not be abridged, altered or modified by any power short of his own will. But the statement of this proposition is its own refutation. The very premise on which the act is founded is that the marriage contract has been violated; that the husband has deserted his wife, and refuses to support and maintain her. It is, therefore, a curious travesty on the constitutional powers of this Commonwealth to say that the Legislature can make no provision for the support of an abandoned wife, if such provision happens to impinge upon some married right of the derelict husband. But independently of the arguments which may be drawn from the nature of, and duties involved in, the marriage contract, in favor of the constitutionality of the Act of 1855, there is, in fact, no foundation on which to rest the attempted justification of the judgment of the court below. Ritner's right to curtesy in his wife's estate was no part of the marriage contract, but it resulted from the operation of statutory enactments existing at the time of her death. This point was expressly ruled, in reference to a wife's dower, in Melezet's Appeal, 5 Harris 449, and we take it for granted that no one will insist that the right of curtesy is superior to that of

dower. In that case it was contended that the Act of 1848 was unconstitutional, in that the rights of the wife are fixed and vested at the time of marriage, and that this act essentially changed and interfered with those rights as well as with those of the husband.

But, in answer, it was objected, that, in this Commonwealth, laws had from time to time been passed altering the statutes of distribution, and the manner of making of wills and that such laws had always been considered sound and good, if in operation at the time of the decedent's death, without regard to whose inchoate interests they might affect. It was further said, that the Legislature might, at its discretion, altogether abolish the common law right of dower, and repeal the statute of wills. But this doctrine has peculiar force when applied to the facts in the case in hand, and the error of the court below Mrs. Ritbecomes all the more obvious. ner's title to the property in dispute had no existence until after the Act of 1855, and until the acquisition of that title Ritner had no right in the premises inchoate or otherwise. The Act of 1855 could, therefore, not interfere with Ritmatter of this controversy, for in it he had ner's vested rights in and to the subjectno such rights. On the other hand, whatever rights he may have had therein he held in subjection to the then existing laws. Whether, then, we adopt the full text of the case above cited or not, the Act of 1855 certainly is, as to the plaintiff's right, constitutional and of full force, and ought so to have been regarded in the court below.

Our attention has been called to the case of Ayetsky v. Goery, 2 Brewster 302, as ruling the contention in hand in favor of the judgment below. But as the facts of the case are not given it is impossible to say whether it has any applicability to counsel for the plaintiff in error has prothe case before us or not. If, indeed, the perly stated the facts upon which that case was based, it certainly does not, as to the present contention, support the argument of the counsel for the defendant in error.

reversed and a new venire is ordered. The judgment of the court below is now

[blocks in formation]

A land-owner cannot so change the natural conformation of his land as to throw in a body, upon his neighbor's land, water which has been accustomed to flow evenly over the surface.

Motion by defendant for a new trial. The facts in this case appear sufficiently by the opinion of the court.

November 5, 1883. CLAYTON, P. J.This was an action of trespass for entering the plaintiff's grounds and opening trenches or ditches at four distinct places, and, by causeways built upon defendant's private roadway, causing the surface water from rains to flow into the plaintiff's fields.

The action was brought expressly to try the right. From the natural slope of the ground before the road was built, the rain water would flow regularly over the plaintiff's fields along the entire line, but at no one place more than another. There was no evidence that before the building of the road the water flowed in any given channel. The evidence was that the rain water not absorbed while on the defendant's land would flow regularly and evenly over the plaintiff's field.

If such a flow would be advantageous to the plaintiff, it has been well settled that he could not compel the defendant to keep up the level of his land for the purpose of continuing the flow, nor could he even by continuous use acquire the right to have it continue to so flow upon him. The reason is obvious. He is not supposed to consent to maintain the conformity of the surface of his ground in statu quo. All he is required to do is to let the water take its natural course upon his own land and accommodate its ow to the changes in the conformation of the surface by Nature. But if he builds or improves his land by which its natural conformation is changed, he must not throw the water in a body upon his neighbor without his consent. Much less can he enter upon his ground and dig a ditch to carry off the water from his own ground: Gale & Whalley on Easements, 182.

While, therefore, the plaintiff could not compel the defendant to use his land as to give him the benefit of the accustomed flow of rain water, neither can the defendant gather it in streams, or dam it up on his own land, so as to discharge it in a body on the plaintiff. He can let it flow upon his own land in its acquired channels until it finds a natural outflow on the plaintiff's, but he cannot help it to an outlet until it finds its natural flow. This is very old law. The Romans recognized it

in their Urban Servitudes, and their doctrine of the rights of flumen and Stillicidium did not materially differ from the English Common Law. The civil as well as the English law prohibited a man from projecting his roof so as to throw the rain water upon his neighbor. He was required to construct his building so as to carry water upon his own land. Ib. 176.

The great question in this case was, whether the defendant had acquired the right by user. The jury have found that he had not. The only reason urged for a new trial is that the court erred in not charging the jury that the defendant under the evidence had to do all he had done without grant or user.

The court was asked to say, that one of the consequences of a lawful use of his lane was the wearing away of the surface, and this he could lawfully prevent, in whole or in part, in some places and not in others, as the proper use of his lane required; and if by these means the places of entrance of the water on the plaintiff's land became changed the defendant is not responsible if he did more than keep his lane in proper repair.

In his argument upon this point, the learned counsel contended that the defendant had the right to select the four places in his lane and by building causeways there keep up the natural level of his ground, letting the rut wash away, and, by building these causeways, make the water which formerly flowed upon the plaintiff along the entire line, flow into his field in an accumulated stream.

We affirmed the point, but informed the jury that if one of the consequences of the building of the road was to change the natural even flow over the plaintiff's ground and to cause it to run down the side gutters until it found its natural outflow, he had no right to build the causeways for the purpose of damming the water and throwing it in a body on the plaintiff. The jury was also charged that if the water ran upon the plaintiff's land of its own volition the defendant would not be responsible for the damage it might do, but he could not build the causeways and open the ditches on the plaintiff's land for the purpose of throwing the water in a body on him.

Upon a careful review of the whole case we are satisfied the law was correctly stated, and as the case was fairly and exhaustively tried, the verdict must stand. Rule discharged.

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

[blocks in formation]

A brakeman in the employ of defendant company, was ordered on a car that was being run into a switch. The brakes on the car being defective, he was unable to stop it, and met with an injury which resulted in his death. In an action brought by his widow and minor children, HELD, That plaintiffs could not recover.

It was a rule of defendant company that the brakeman should examine brakes before cutting a car loose from a train, and decedent had been so told by the conductor. HELD, his failure to do so was such contributory negligence as to relieve the defendant from liability.

The brake chain having been unhooked, at a station along the line, by persons unknown, the defendant company was not liable for injuries received thereby, the decedent having neglected to examine said brakes before getting on the car.

Motion for compulsory non-suit.

This was an action of trespass, &c., brought by Catharine E. Rigney and her minor children against the Pennsylvania Railroad Company for the death of her husband by injuries received while in defendant's employ.

Deceased was a brakeman, and while acting in that capacity was ordered on a car which was being shifted on a side track. The brake chains being torn, he was unable to stop the car, and received injuries which resulted in his death.

H. Keesey and V. K. Keesey, for motion.

Niles and Niles, contra.

Dec. 8, 1883. WICKES, P. J.-Before the plaintiffs can recover, they must show that the company defendant was guilty of negligence, and that the conduct of the deceased or of his coemployees in no degree contributed to the accident.

It is not pretended that, the company defendant was guilty of negligence in directly furnishing the deceased machinery or appliances inadequate for the work he was to perform, or omitted to exercise proper care in the employment of persons who constructed the machinery or who aided the deceased in the execution of his

duties.

pair, and that there was no omission of duty on the part of the deceased or his coemployees in not inspecting the brake before using it. The car upon which this most unfortunate accident occurred had been left at Spring Grove station the evening before. There is nothing in the evidence to show that it was out of repair at that time, or that it had carelessly inspected at either of the company's yards where inspection was provided for. There were three such yards on this division of the road-viz.: Columbia, York and Frederick. Everything points to the conclusion that the brake was unhooked, during the time the car remained on the switch. This brake was not broken in any proper sense of the term, but "unhooked" midway of the car, and thus its efficiency destroyed at both ends of the

car.

The defect was patent, and readily observed by all who examined it.

Was it, under these circumstances, the defendant's duty to have some one at this station, charged with the special duty of inspecting cars temporarily left there. If at this station, then of course at all other stations where cars are taken on and put off, and at every other point, where the ordinary use of the car, or the act of a tresspasser, the brake chain might become disconnected. I can but think this would be holding a company to such a high degree of care, as the law never requires. But such a contingency as this was manifestly seen and provided for, by the rules of the company defendant which were given in evidence.

By one of these rules, it made the conductor's duty "to see that the brakes of the cars in their train, are in good order before starting, and to inspect them as often as the train stops to take water, or lays off to pass other trains." And another rule makes it the duty of the brakeman to aid the conductor in making such inspection. It is said these rules do

The contention is that the defendant not apply to the case in hand, because the

« ПредишнаНапред »