(108 A.) them the benefit of a patent which, so far, any property rights were then "vested" in as the record indicates, they could not law- Hoyt "for the use of said proprietors." fully have obtained for themselves. We make the last statement for the reason that, since Hoyt (the person named as tenant in the lease) was successful before the legal tribunal authorized to act in the premises, it must now be conclusively presumed he was the sole "actual" settler entitled, and that plaintiff's predecessors, as well as Myers, who conveyed to them, had no legal right whatever to a certificate or patent. Griffin v. Fellows, *81 Pa. 114, 120. At the time of the ancient transactions now under discussion the rule that a tenant will not be heard to deny his landlord's title certainly would not have been permitted to prevail against the public policy of this state that Connecticut settlers (representing a class who, on behalf of that colony, had attempted to usurp the sovereignty of Pennsylvania) should have no rights in the lands claimed by them, excepting such as might ex gratia be recognized by the statutes of Pennsylvania. Dailey v. Avery, 4 Serg. & R. 281, 288. When the lease was made in 1800, the only right given Connecticut settlers under our law was to appear before the commissioners appointed by the act of 1799 and there have their claims adjudicated; and, if satisfactory proof of actual settlement upon the land at or before the Decree of Trenton were presented, they might secure a certificate of title, to be followed by a patent. Enslin v. Bowman, 6 Bin. 462, 468, 469. Of course, at this late day it is impossible to know just what right of title Myers (who conveyed lot No. 5 to plaintiff's predecessors) may have claimed; but it may be noted that in the lease of 1800 his assignee, the town committee, apparently endeavored to select words of grant which would not obligate it to defend the possession of its tenant, restricting itself to letting what "rite" or "interest" it might be "impowered" to convey "by lease," which, to say the least, does not tend to make a strong case for the assertion after a century of the overwhelming right now sought to be enforced. [3] The act of 1822 (P. L. 97) incorporating plaintiff does not help it, for several reasons, among others, because, so far as the statute affirms leases theretofore made by the committee of the proprietors of the township of Kingston, it expressly applies only to those "concerning lands originally appropriated to the public use," and lot No. 5 was not "originally" so appropriated. Again, section 5 of this statute, which provides that interests "vested" in "any person or persons for the use of said proprietors [plaintiff's predecessors] shall vest in said corporation," fails plaintiff, because, for reasons already stated, under the relevant facts as they then existed, it cannot be said that 108 A,-46 [4, 5] If there were nothing else in this case, it is plain that plaintiff and its predecessors have slept too long on the alleged right now sought to be enforced; for, assuming, while not admitting, the correctness of the theory that, when the patent was issued to Hoyt, the latter held the title thus acquired in trust for his landlord, this would not be a dry trust which would execute itself. If the trust existed at all, it was a constructive one which had to be judicially established. Strimpfler v. Roberts, 18 Pa. 283, 302, 57 Am. Dec. 606; McKean, etc., v. Clay, 149 Pa. 277, 24 Atl. 211. Prior to the act of 1856 (P. L. 532) a proceeding for this purpose must have been commenced within 21 years from the inception of the alleged trust, and after that act (section 6) within five years from the time such "trust accrued with the right of entry." McBarron v. Glass, 30 Pa. 133, 135. Again, assuming the correctness of plaintiff's theory, it is apparent that, when mining commenced, waste was committed, which gave a right of re-entry (Griffin v. Fellows, *81 Pa. 114, 122; Trustees of Kingston v. L. V. C. Co., 236 Pa. 350, 357, 84 Atl. 820, 41 L. R. A. [N. S.] 1059), if plaintiff could judicially establish the trust for which it contends, and thus set aside the title of those who were taking the coal; but such trust would have to be established, if at all, within five years from the time the first mining was done, which gave the “right of entry," or, in the words of the statute, from the time "the trust accrued with the right of entry." [6] There is authority for the position that an action of waste, involving no question of plaintiff's title, may be brought at any time during the period of the spoliation; recoverable damages being restricted to losses incurred during the last six years (Trustees of Kingston v. L. V. C. Co., 241 Pa. 469, 473, 88 Atl. 763, 49 L. R. A. [N. S.] 557); but, if in such a proceeding one depends upon the establishment of a trust to sustain his title to the land in question, the action must be brought within the statutory period, the same as though the prime purpose of the suit were to "enforce [an] implied or resulting trust as to realty." Section 6, Act of 1856, supra. An actual Connecticut settler within the meaning of the act of 1799, supra, had such a possibility of title that incumbrances, etc., created by him would bind the land, if an estate were subsequently patented to him or his assignees (Carkhuff v. Anderson, 3 Bin. 4; Bird v. Smith, 8 Watts, 434, 34 Am. Rep. 183); and again, if a lease were created by such a claimant, and he afterwards obtained a patent for the land, he could not, as against his lessee, or the latter's assignees, deny the validity of the contract (Providence tion, for we deem the broader grounds previously discussed sufficient to sustain the judgment about to be entered. Trustee's Appeal, 2 Walker, 37; Griffin v. | sary to do more than mention this contenFellows, supra). This, however, is far from saying that, if a mere Connecticut claimant made a lease, and the demised land were shortly afterwards patented to the lessee, also a Connecticut claimant, the title thus solemnly adjudged to the latter will be held to accrue to the former, in a case like the present, where the alleged (landlord) rights of such lessor are in no way acknowledged, exercised, or asserted until more than a century has run, during all of which time title has been treated and marketed as a fee simple in the lessee under a patent out of the commonwealth. We conclude that, on the facts at bar, defendant was fully warranted in resting upon the Hoyt patent (Balliot v. Bauman, supra; Woodward, J., in Grotz v. Lehigh & W. Coal Co., 1 Kulp, 53, 54); but, as already shown, even should we go back of that instrument, defendant's title cannot now be successfully attacked; therefore plaintiff has no substantial ground to complain of the judgment entered by the court below, which is accordingly affirmed. (265 Pa. 380) The case before us is quite different from Satterlee v. Matthewson, 16 Serg. & R. 169, cited by plaintiff. There the action was in ejectment, and against the original lessee. On the first trial of the cause plaintiff re- COMMONWEALTH V. WELSH MOUNcovered, although defendant set up a patent from the commonwealth antedating the lease, which patent had been purchased in (Supreme Court of Pennsylvania. June 21, TAIN MINING & KAOLIN MFG. CO. 1919.) 238-CRUSHING AND GRINDING KAOLIN ROCK NOT "MANUFACTURING, WITHIN STATUTE EXEMPTING CAPITAL STOCK FROM STOCK TAX WHEN SO EMPLOYED. A corporation organized for the purpose of mining fire clay, fire sand, feldspar, and kaolin, with the right to prepare for market and vend the product of the mines, that has leased its property to a company engaged in crushing and fineness, which is sometimes colored by the adgrinding rock into sand of specified grades of mixture of clay and used principally for molding in the steel foundry trade and to some extent for concrete in the building trade, is not engaged in "manufacturing," within Act June 1, 1889 (P. L. 420), as amended by Act June 7, 1911 (P. L. 673), allowing exemptions from capital stock tax of so much of the capital stock as is used in manufacturing. his behalf after the term commenced. We and Phrases, First and Second Series, Manu[Ed. Note.-For other definitions, see Words facture.] Appeal from Court of Common Pleas, Dauphin County. Action by the Commonwealth against the Welsh Mountain Mining & Kaolin Manufacturing Company to recover a capital stock tax. From a judgment in favor of the Commonwealth, defendant appeals. Affirmed. Among other grounds urged by defendant against plaintiff's right to recover is that, since the original grants from the Susquehanna Company reserved for future disposal "all beds of mine, iron, ore, and coal," and since it is conceded the lease to Hoyt did not include mineral rights, therefore the coal here in controversy in no wise ever passed under that instrument, or vested in any one other than the patentee of the commonwealth, and, as to that particular estate, Hoyt was never other than an owner in fee, which, so far as the coal is concerned, excludes the relation of landlord and tenant with all its incidents; but it is not neces- the following statement of facts. The case was tried without the intervention of a jury under the provisions of Act April 22, 1874 (P. L. 109), and judgment was entered in favor of the commonwealth for $195.48. McCarrell, J., filed the following opinion in the common pleas: This suit is for the recovery of the capital stock tax upon the corporation defendant for the year 1913. Trial by jury has been duly waived. The case has been submitted to the court upon a case stated, from which we gather (108 A.) The defendant company was incorporated under the laws of Pennsylvania May 16, 1890, for the purpose of "mining fire clay, fire sand, feldspar and kaolin, with the right to prepare for market and vend the product of their mines." Defendant company has leased its property and plant to the Silican Products Company and the Silican Sand Company from June 30, 1912, to June 30, 1914. The lessees have operated the mining property, using the following described process: is not manufacturing has been decided in a' number of cases, from which we refer to the case of Commonwealth v. John T. Dyer Quarry Co., 250 Pa. 589, 596, 95 Atl. 797. The fact that clay is sometimes added to the sand when colored silica is desired does not, in our opinion, change the situation. In the case of Hartranft v. Wiegmann, 121 U. S. 609, 7 Sup. Ct. 1240, 30 L. Ed. 1012, it was held that cleaning off the outer layers of shells by acid and then grinding off the second layer by an emery. "Silica rock is mined from the quarry in wheel, so as to expose the inner layer was not large pieces and conveyed to the mill, where it a manufacture of shells. They were held to be is dumped into a large stone crusher, in which still shells, not manufactured into a new and it is crushed into smaller pieces. These pieces different article with a distinctive name, charpass into another crusher, where they are crush-acter, or use. The application of labor to an ed and ground into still smaller pieces. These article either by hand or mechanism does not pieces pass over and through sieves of vari- make the article necessarily a manufactured ous size mesh, the small particles passing article. This principle has been decided in through the sieves and from there into cars. quite a number of cases and is now to be reThe larger particles that will not pass through garded as settled law. We see no reason why the sieves are conveyed back again to the these principles should not be applied in the crusher and there undergo the same process present case, and we therefore are of opinover again, until they are ground fine enough ion that the defendant company, in employing to pass through the sieve. The sieves used its capital in the manner above indicated, was are of fine mesh according to the particular not carrying on the business of manufacturing, grade of fineness of the sand desired. There and that it is therefore liable to the capital are five grades of standard fineness known to stock tax imposed by our law. It is admittrade, each a fraction finer than the other. The ted in the case stated that the balance of caprock is ground into these various grades of ital stock tax remaining unpaid is $157.50, fineness according to the order received. The bearing interest from May 15, 1915. We theresand shipped must meet the specified fineness fore conclude that the defendant company is inas ordered; otherwise, it will not be received debted to the commonwealth as follows, to wit: by the consignee. In some cases clay of vari- Balance of capital stock tax for the year ous colors is used for the purpose of coloring the sand, when an order is received for colored sand. The silica sand is used principally for molding in the steel foundry trade, and to some extent for concrete in the building trade. rock has no commercial use or value as rock, but when changed into sand is known in the trade as 'silica sand,' and is worth from 45 to 60 cents per ton, and is adapted in that condition to particular uses, for which it was not adapted as rock." Discussion. 1913 Interest, May 15, 1915, to May 28, 1918.. The Attorney General's commission, 5 per cent... $157 50 28 67 $186 17 9 31 $195 48 We therefore now direct that judgment be entered in favor of the commonwealth and against the defendant company for the sum of $195.48, unless exceptions be filed within the time limited by law. Argued before BROWN, C. J., and STEWART, MOSCHZISKER, FRAZER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. James Arthur Ewing, of Philadelphia, for appellant. William M. Hargest, Deputy Atty. Gen., and William I. Schaffer, Atty. Gen., for the Commonwealth. The question here raised is whether or not this process used and employed by the lessees of the defendant company is manufacturing within the meaning of our statutes. The defendant company owns a quantity of silica rock, which is mined or quarried, and then subjected to mechanical crushers until the rock is reduced to desired sizes or to sand as is desired. It is still silica rock or stone bearing the appearance of the article as it leaves the quarry, but with no regular shape or fixed size in the portions into which the rock is broken T. Dyer Quarry Co., 250 Pa. 589, 95 Atl. 797, by the crusher. The pieces are sold as they come from the crusher without any attempt to is conclusive of the correctness of the judgremove the irregularities of the edges or make ment entered below, and it is accordingly the pieces of uniform shape. That this process That this process affirmed. PER CURIAM. Commonwealth v. John (265 Pa. 357) scrabble was a small village built on both DINTAMAN v. CITY OF HARRISBURG. sides of a turnpike, which was laid out and opened in 1787 along the Susquehanna river. (Supreme Court of Pennsylvania. June 21, Houses were built there as early as 1727. 1919.) MENTS IN UNOPENED STREET. 383-COM The borough of Harrisburg was incorporated in 1791. When first laid out by the execu1. MUNICIPAL CORPORATIONS MON-LAW BULE AS TO DAMAGES FOR IMPROVE-reference has been made became Front street tors of John Harris the turnpike to which At common law damages cannot be assessed and the river afforded a desirable place for in the borough; and the land between it for improvements made within the lines of a located, but unopened street, after the approval of the plans of which the street in question is a part. 2. MUNICIPAL CORPORATIONS 383-LIABLE IN DAMAGES FOR OPENING STREET WITHOUT COMPLIANCE WITH STATUTE PROVIDING THEREFOR. Where March 19, 1860, an act was passed (P. L. 175) providing for location of certain streets in a city, and April 1, 1863 (P. L. 244), the location of such streets was ratified with the exception of a certain street, and January 2, 1871, an act (P. L. 1556) was passed reenacting a proviso of the former act that no compensation should be received for buildings built on any street after it was designated and laid out by the commissioners, and providing as to the street in question that, before it could be opened, a plan was to be executed and recorded within two years after the passage of the act, and that thereafter from time to time it was to be opened as the city authorities deemed necessary, and providing for damages to existing rights, where the city had failed to act under such statute and never laid out the street in question, the city lost the benefit of the proviso in the act of 1860, and was liable in damages for removal of buildings upon opening of the street. a park site and city improvement. Hardscrabble continued to exist, independent of the borough, until the year 1860, when, by an act passed (P. L. 175), it was included within the territorial limits of the city. By section 33 of this act commissioners were appointed to survey and locate streets, avecity limits. This accomplished and the plan nues and alleys upon the land within the filed as directed by the act, exceptions were filed as directed by the act, exceptions were taken thereto in the court of quarter sessions. The Legislature then stepped in, and by the act of 1863 (P. L. 244) ratified and confirmed all the streets, lanes, and alleys, in the city surveyed pursuant to the authority conferred by the act of 1860, except, inter alia, so much thereof as extended from Front street to low-water mark between State and Calder streets. This action definitely fixed the location of all the streets, except those specifically mentioned as not being within the confirmation act. The land now in question was within the exception. Later, by act of April 9, 1869 (P. L. 771), a new board of commissioners was appointed. It was required by the act to survey all the territory that had not theretofore been laid out and approved as a part of the city plot, which in Appeal from Court of Common Pleas, cluded appellee's land. This done, the comDauphin County. Action by Arlanda P. Dintaman against the City of Harrisburg for damages sustained by opening the street. From a judgment on a verdict for plaintiff after appeal from award of viewers, defendant appeals. Affirmed. Argued before BROWN, C. J., and STEWART, MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. John E. Fox, City Sol., and John R. Geyer, both of Harrisburg, for appellant. George R. Barnett, B. Frank Nead, and James G. Hatz, all of Harrisburg, for appel lee. mission duly reported to the Legislature, and the act of January 2, 1871 (P. L. 1556), validating the streets as laid out, was then passed. By the act of 1860 freeholders were to receive no compensation for houses or other buildings built on any street, lane, or alley of the city after it was designated and laid out by the commissioners, or a majority of them. This proviso was re-enacted in section 1 of the act of 1871. The appellee's property, located between State and Maclay streets, was subject to all the effective provisions of the act of 1871. The property lies between the river and what was the old turnpike, or Front street, and since 1871 the city made no effort at this place to widen Front street to low-water mark of the Susquehanna river. The persons owning properties along the river between KEPHART, J. The principal question in- these streets had, with apparent security, volved in this appeal is the amount of com- built houses and otherwise enjoyed their pensation to be paid the appellee for the premises as freeholders, notwithstanding the opening of Front street in the city of Harris- act of 1871. The city did not endeavor to burg. To an intelligent understanding of stop these improvements, nor warn the ownthe case it will be necessary to review some ers of the risks, if any, they were incurring. of the early history of the city. Hard-By ordinance of 1914 Front street was opened (108 A.) to its full width, thereby affecting the prop- [ river were to be taken for the said street erty of the appellee, and some 40 houses, and damages estimated according to the with. boathouses and other buildings, along advantages or disadvantages to each of the river owned by other persons. Many of the several properties by the opening of any these buildings were erected under city per- portion of the street. This, in substance, is mits since the act of 1871. A special verdict the language of section 3. was taken finding the value of appellee's land and improvements prior to January 2, 1871, to be $14,500, and that since the date of the act other improvements had been made of the value of $6,500. Judgment was entered for the full amount, and the last item is now in dispute. If section 1 embodied a complete plan of Front street (exclusive of the grade), why was it necessary to execute and record within two years a plan "of a uniform width with the portion of [Front street] already laid out and graded from State to Maclay streets"? Section 1 was a sweeping confirma[1] It is the city's contention that under tion of the streets laid out on the lands exthe proviso of the act of 1860, re-enacted by cepted by the act of 1863, and it formed the the act of 1871, the owners of these several base from which section 3 was to operate. properties should not be compensated for This section imposed conditions on the city buildings erected since the act of 1871. Con- that were mandatory for no other reason ceding the act to be in full force, and reading than to secure a perfectly laid out street into it the common law as it relates to build- from the plan approved in section 1, as well ings erected on plotted streets, its contention as to provide for compensation to the owners would be sound undoubtedly if it were not of property taken for the street. The city for the language of the several sections of the did not meet the requirements of this secact of 1871. These take out of the operation tion. The plan mentioned in section 3, if it of this proviso and of the common law the was ever made and executed, was never reproperties located between Maclay and State corded, nor was the plan as approved by the streets. The rule of the common law, as first section. Assuming it was made and exexpressed in Bush v. McKeesport, 166 Pa. 57, ecuted in conformity to the legislative di30 Atl. 1023, is that damages cannot be as-rection, and of this there is no evidence, the sessed for improvements made within the property lines and buildings were to start lines of a located, but unopened, street after from and be affected by this "recorded" line. the approval of the plans of which the street That line, the Legislature declared, was to in question is a part. See Harrison's Estate, be effective data for the street. The line 250 Pa. 129, 133, 95 Atl. 406, and Philadelphia was to be recorded as a permanent notice to Parkway, 250 Pa. 257, 261, 95 Atl. 429. the owners who desired to erect buildings in [2] When the Legislature in 1871 approved the future, and to subsequent purchasers, and the report of the commissioners, the location it was to be the foundation of the city's acts. of Front street at the point in question was Without performance by the city of this exfixed, not by the commissioners, but by the press mandate of the Legislature, the street, terms of the act itself, and from it it is ap- as contemplated, was never fully laid out parent something was to be done with this between State and Maclay streets. By its street different from the other streets on the failure to so perform, completing an otherplan, and Front street between State and wise perfectly laid out street, the city lost Maclay streets was not to be treated in the the benefit of the proviso in section 1 and the same manner as the other streets. By sec- rule of the common law, as such benefit only tion 2 either the city or the owners of lots appertained to streets regularly laid out eiof not less than 200-foot front on streets ther at common law or this particular act. other than Front street could move to open We do not say that Front street, through the the street and have damages assessed with- later acts of the city council and by the out further plans to perfect it. Section 3 ordinance of 1914 and by the various recogdeals with Front street alone. Before it nitions from time to time given that street, could be opened from State to Maclay streets is not a lawful street at this time. What we of the uniform width of the other portions do hold is that, if the city was entitled to already laid out (that is, to low-water mark), any benefit by way of diminution in damages a plan was to be executed and recorded with- for improved property, it lost that right in two years after the passage of the act. through its neglect to comply with sections 1 Thereafter from time to time it was to be and 3 of the act of 1871. We do not here opened as the city authorities deemed neces- consider the purpose of section 5 to give full sary, and thereupon they were to take and compensation, as of the time of taking, for enter upon the properties found within the all improvements, different from that menbounds of the plot. After the plot or plan tioned in section 1, irrespective of the queswas recorded, all buildings thereafter erected tion just discussed. What we have decided were to conform to the recorded limits; and meets the case. all lands, buildings then erected, and rights existing between the recorded line and the firmed. The judgment of the court below is af |