IN EQUITY.

JOHN A. KELLY VS. PHILADELPHIA AND READING R. R. Co.

Where the affidavits offered upon a motion to dissolve a preliminary injunction absolutely deny all the facts upon which the equity of the plaintiff rests, the injunction will be dissolved.

The Philadelphia and Reading Railroad Company does not lose by non-user or adverse possession its vested franchises and corporate rights which are or may be necessary to its existence.

MOTION to dissolve preliminary injunction.

Charles Hunsicker, Esq., for plaintiff.

James Boyd, Esq., for defendant.

The facts of the case are sufficiently set forth in the opinion of the court delivered January 7, 1889, by SWARTZ, P. J.

The complainant alleges that the defendant company proposes to locate, construct and operate a railroad over his premises, and that such location and operation will interfere with his dwellinghouse now occupied by him.

The defendant answers that the proposed construction consists of an additional track lateral railroad, or branch railroad, leading from its main road or line near Pencoyd to the iron works of A. & P. Roberts & Co.; that the proposed construction will not occupy any part of the plaintiff's premises, but will be located wholly within the company's right of way acquired originally in the location of its road.

The defendant further alleges that even if the ground occupied as proposed is part and parcel of the plaintiff's premises, such occupancy and use by the defendant company will not interfere with the complainant's dwelling or any part of its curtilage that is necessary for the reasonable and proper enjoyment of the house as a residence.

The uncontradicted evidence as disclosed by the affidavits shows that the proposed additional track or side track is necessary to enable the defendant company to provide for the safety of persons and property and to secure increased facilities and capacity for the transportation of its traffic.

Kelly vs. R. R. Co.

Has the defendant established that the proposed construction is within the right of way originally acquired by its location?

By its charter the defendant company had the right to enter upon and occupy such ground as might be necessary to locate, construct, maintain and operate its road, not to exceed, except in deep cuts and fillings or at points selected for stations, four rods in width. In pursuance of the original location the defendant's roadway, at the place now in question, was constructed through lands of Andrew Anderson, under whose heirs and alienees the plaintiff now claims title to the premises described in his bill.

Andrew Anderson for a valuable consideration gave and granted to the defendant the right to occupy for said railroad so much of his lands as might be required for the same. The agreement failed to designate the width or extent of the land taken, the only limitation being the requirements of the company for its road.

Counsel for defendant contend that inasmuch as the company entered upon the land of Anderson to build its road but did no act indicating clearly the breadth of the strip taken, it must be inferred that all was taken that is authorized by its charter. This is the position taken by the Supreme Court of Indiana, 1883, in Prather vs. Western Union Tel. Co. et al., 14 American and English Railway Cases, page 1. To the same effect is The Worcester Inhabitants vs. The Western Railroad, 4 Met., 564. For the purposes of the present application it is not necessary to invoke this doctrine. If such presumption arises it may be removed by evidence that actual possession of less ground was taken. West Chester and Philadelphia R. R. Co. vs. Goddard, 11 Cent. Rep., 829; Penna. Canal Co. vs. Harris, 101 Penna. St. R., 93.

The sworn answer, which may be used as the affidavit of the defendant, as well as the affidavits presented, show that an embankment was made by the original construction of the roadway; that the outer base line of this embankment is still traceable on the grounds; and that the proposed construction will be wholly within this line. It is further shown by these affidavits that the stable of the plaintiff was erected by digging into this embankment, and that the building is nearly all within the base line of this original slope. The defendant may not be able to maintain this position upon the final hearing of the case, but as the matter now stands we have an absolute denial of the facts upon which the equity of the plaintiff

Larned vs. Sharpe.

rests. Where the equities of the plaintiff's case are denied the preliminary injunction can not be continued. Macbett vs. Hodges, I

Brewster, 313; Carpenter vs. Burden, 2 Parsons, 24.

That the complainant and those under whom he claims title have for many years occupied the ground originally taken by the company, can not impair the defendant's rights. By the construction of the embankment the company clearly indicated that it had appropriated, at least for its right of way, the ground so occupied, to maintain its highway. The company could not lose its title by non-user, and the complainant could not acquire title by adverse possession. Susquehanna Canal Co. vs. Benham, 9 W. & S., 27; Stevenson's Appeal, 17 W. N. C., 429.

If no such title can be acquired against a canal company or turnpike road, the same protection is enjoyed by this corporation, for the Supreme Court held in Boyle vs. The Philadelphia and Reading R. R. Co., 54 Penna. St. R., 312, that the defendant's road is a public highway as truly such as a canal or turnpike road.

The defendant offers security to pay such damages to the complainant as may be payable by reason of the appropriation of the land in question. Upon the entering of such security the preliminary injunction heretofore awarded will be dissolved, and upon ap- · plication of either party a time will be fixed for the approval of such security.

WILLIAM H. LARNED, EXECUTOR and Trustee, VS. EMMA SHarpe. An exemplification of a record contained a certificate that "among the records in the office of the Clerk of the Orphans' Court, etc., it is thus contained," which was held insufficient to entitle the paper to be received in evidence.

In an action of ejectment where the plaintiff did not show title from the commonwealth, but claimed that the defendant held through him, the evidence must show how defendant came into possession.

MOTION for new trial.

Childs & Evans, Esqs., for plaintiffs.

H. B. Dickinson, Esq., for defendant.

The facts of the case fully appear in the opinion of the court delivered December 3, 1888, by WEAND, J.

The exemplification from the Orphans' Court of Philadelphia contained the following certificate: "I hereby certify that among the

Larned vs. Sharpe.

records in the office of the Clerk of the Orphans' Court for the county. aforesaid it is thus contained," which we now think was insufficient to entitle the paper to be read to the jury.

In Christine et al. vs. Whitehill, 16 S. & R., 98, it was held that a certificate reading "I certify that the foregoing is a true copy, taken from the original remaining in the office of the Orphans' Court of county," was not admissible in evidence. In Edmiston vs. Schwartz, 13 S. and R., 135, a certificate that "the paper was truly copied from the records," imports that it is an entire copy, and not a mere extract; and so in Voris vs. Smith et ux., Id., 334, where the certificate was that the paper was a copy of the record, it was held good as importing that it contained the whole record; but in this case all these requisites are wanting, and the paper should have been rejected.

Without this paper the evidence does not disclose how Sharpe, the husband of the defendant, came into possession. The plaintiff testified, in answer to the question:

Q. "After you had gotten title to that property, what did you do with it?" A. "Mr. Lewis Sharpe went into possession and continued until his death, and his wife has since remained in possession."

Had the plaintiff shown title out of the commonwealth, this evidence would have obliged the defendant to show her title; but as the plaintiff did not do so, the evidence fails to show that Sharpe or his wife were holding possession through him or his grantors. The mere fact that Sharpe went into possession, without its also being shown that he did so through plaintiff, is not sufficient. If he was there as tenant, what were the terms of the tenancy? If he lived there under the terms of the will, that fact should have been shown. His possession may have been consistent with a purchase or leasing from another. At the trial I was of impression that Larned, the plaintiff, had used the words, "Sharpe went into possession under me," and I still think so; but, unfortunately, the record does not bear me out. The plaintiff having failed to make out his case, the judgment was erroneous.

And now, December 3, 1888, a new trial is granted.

ABNER KNIGHT VS. JACOB BOOZ.

Attachment Execution. Isaac Custer, Garnishee.

The service of an attachment execution has the effect of an equitable assignment of the thing attached. The garnishee has no valid set-off against the fund in his hands unless he holds a debt or demand due at the time of the commencement of the action in which it is interposed; if the claim is not then ripe for action it can not be used as a set-off.

RULE to show cause why judgment should not be entered in favor of the garnishee upon the answer filed.

B. E. Chain, Esq., for garnishee.

Franklin March, Esq., for plaintiff.

The facts appear in the opinion of the court delivered December 3, 1888, by Swartz, P. J.

The garnishee became surety for the defendant in the execution upon a judgment note dated March 11, 1878, payable six months after date. The attachment execution in the above case was served upon the garnishee, Isaac Custer, May 8, 1878, before the judgment note upon which the garnishee was surety became due.

"The service of an attachment execution has the effect of an equitable assignment of the thing attached. A valid set-off must be of a debt or demand due at the time of the commencement of the action in which it is interposed; if the claim is not then ripe for action it can not be set off": Roig vs. Tine, 103 Penna. St. R., 117. At the time of the service of this attachment the garnishee had no claim or debt due him by the defendant which was ripe for suit. The service of the attachment gave the prior claim to the plaintiff upon the fund attached.

The defendant claims the sum still in the hands of the garnishee under the exemption. Whether this claim can prevail against the plaintiff will not be decided until after a hearing is accorded to the defendant.

The rule for judgment in favor of the garnishee is discharged without prejudice to the defendant to prosecute his claim for the exemption.