Miss Schmidt, therefore he could have no access to her before 1840; that her son saw said Henrietta for the first time in Strassburg, and was acquainted with her, that Henrietta had from her unmarried state two children, a son named Edward, and a girl, who died in her childhood at Strassburg. Mrs. Weist's testimony was to the same effect. The defendant relied upon his treatment by decedent as his son, and certain letters in which he had called him his son. It was admitted, however, that he had so treated, and so called another child whom he had adopted. As to the question of the conveyance it was proved that the decedent purchased the property at sheriff's sale for $6000, that he incumbered it with a $4000 mortgage, that the property was worth in 1886 $12,000 to $14,000, that the complainant was of weak mind and illiterate, that he could not have understood the nature of the conveyance made in 1876, and that Mr. Breitinger was the attorney of Edward F. I. Meurer, and the only counsel in the transaction. Upon this testimony the Court found:(1) That the defendant was not a son of Charles F. Meurer. Edward F. I. Meurer thereupon took this appeal, assigning for error as follows: First to fourth assignments, the decrees of the Court above set forth. Fifth and sixth assignments, the action taken by the Court on Caroline E. Feigle's petition. The seventh assignment was as follows: The learned Court below erred in dismissing the defendant's exceptions to the Master's report stating an account, and in confirming said report, and in making the decree of same date (December 21, 1886), that the defendant, Edward F. I. Meurer, pay to the said Caroline E. Feigle as next friend of said Charles Meurer, the sum of $2334.91, the amount found by the Master. F. Carroll Brewster (Frederick L. Breitinger, and Charles Davis with him), for the appellant. William W. Porter (Frederick J. Geiger with him), for the appellees. March 5, 1888. THE COURT. This case is a companion of Charles Meurer's Appeal, No. 396, of January Term, 1887, in which we have just entered a decree. The proceedings in which both contentions originated have been sufficiently outlined in the opinion filed in that case, and hence, they need not be re-stated here. The fifth and sixth specifications in this case, and also the last clause of the seventh, present substantially the same questions that were involved in the first (2) That upon the death of Charles F. Meurer, the defendant inherited nothing, and had no capacity to join in the deed with the complainant. (3) That Charles Meurer was the sole heir-at-seven specifications of error in the other case, law of Charles F. Meurer, deceased. (4) That the defendant, acting as administrator of the estate of Charles F. Meurer, standing in a position of confidence and trust towards the complainant, in the total absence of any proof of the bona fides of the transaction, the consideration being grossly inadequate, and the complainant being of weak mind, was guilty of constructive fraud. (5) That the defendant, by the concealment of the will of Charles F. Meurer, by his misrepresentations as to value, and that the property had to be sold, was guilty of actual fraud. The Court thereupon decreed that the said conveyances were null and void; that Charles Meurer was the sole heir-at-law of Charles F. Meurer, deceased; that Edward F. I. Meurer should forthwith vacate said premises, No. 1025 Walnut Street, and deliver possession thereof to the said Charles Meurer; that the case be referred to a Master to state an account of the rents and profits of the property. The Master found the same facts as the Court had done, and reported that the sum of $2334.91 was due to complainant by respondent. Subsequent to the above decrees, Caroline E. Feigle, an aunt of complainant, petitioned the Court in the manner described at length in the Case of Charles Meurer's Appeal (preceding case), when the Court made the decrees that are there complained of. and inasmuch as they have been considered and disposed of in the opinion referred to, further discussion of them is deemed unnecessary. For reasons there given, the fifth and sixth assignments of error, and last clause of the seventhpractically common to both cases-are sustained. The subjects of complaint in the first to fourth specifications, both inclusive, are the decree of December 16, 1885, and its provisions, neither of which were involved in Charles Meurer's Appeal. That decree is predicated of the facts that Charles Meurer is the sole heir-at-law of his father, Charles F. Meurer, deceased, and as such inherited the premises No. 1025 Walnut Street, of which his father died seised and intestate; that the title to said premises was fraudulently obtained from him by appellant, Edward F. I. Meurer, who was neither of kin to said intestate, nor in any manner entitled to the property. Without considering the evidence in detail, it is sufficient to say, these and other facts, satisfactorily established by the proofs, justified the Court below in decreeing that the deeds of conveyance made by Charles Meurer and Edward F. I. Meurer and wife, to Gustav Vogt, and by said Vogt to Edward F. I. Meurer, conveying said premises to the latter, and the mortgage thereof executed by him, were null and void; that Edward F. I. Meurer forthwith vacate said premises, and deliver possession thereof to said Charles, and referring the case to a Master to jury. The power of taxation in a municipal corporatake an account of the rents, issues, and profits tion is sufficient security for property taken by such of the premises, received by appellant while he corporation, and hence is sufficient for property injured. was wrongfully in possession thereof. It follows that the first four specifications are not sustained, and the decree of December 16, 1885, should be affirmed. As to the decree dismissing appellant's exceptions to the Master's report stating an account, and confirming the same, complained of in the first clause of the seventh specification, there was no error. It was the legitimate result of the decree of December 16, 1885, and order of reference therein made. For reasons given in the opinion above referred to, the fifth, sixth, and last clause of the seventh assignments are sustained, and the orders and decrees therein specified should be reversed and set aside. Decree of December 16, 1885, and orders embodied therein, and also the decree confirming the account stated by the Master are affirmed; orders and decrees of March 13, 1886, specified in the fifth and sixth assignments of error, and the decree of December 21, 1886, specified in last clause of seventh assignment, are reversed. And it is further ordered that appellant pay the costs of this appeal; and that the record be remitted to the Court below for further proceeding in accordance with equity practice. Opinion by STERRETT, J. July '87, 31. C. K. Z. February 10, 1888. Appeal of the County of Delaware, et al. County commissioners-Powers of, in erection of bridges-Compensation for consequential damages-How recovered—Art. XVI., sec. 8, of the Constitution. Public officials like county commissioners can only be restrained in their official acts when it appears that they are proceeding without lawful authority. County commissioners cannot be controlled in their discretion in building a county bridge at the application of a private citizen. The right to compensation for what are usually called consequential injuries, that is to say, where property is injured without being actually taken, is given by section 8 of Article XVI. of the Constitution; but as the Legislature has provided no remedy for the assessment of such damages, an action on the case is the proper remedy to enforce the constitutional right. Penna. R. R. Co. v. Duncan, 111 Pa. 352, and County of Chester v. Brower, 20 WEEKLY NOTES, 431, followed. Appeal of the County of Delaware and of Owen Yarnall, Benjamin F. Pretty, and Jesse Brooke, commissioners of said county, from a decree of the Common Pleas of Delaware County, granting an injunction. Bill in equity, by Samuel Riddle, against the county of Delaware and the commissioners of said county, which averred : That complainant is, and has been for a great number of years, the owner of a valuable tract of land and mill property, in the township of Middletown, in the county of Delaware, upon which he has large and valuable mill buildings erected, where he has been for many years past engaged in the manufacturing of cotton and other goods, and has enjoyed the use and power of a certain stream of water known as Chester Creek, running and flowing through said land, by means of dams erected across said stream and by mill races leading to and from said mills upon said land, which rights he has enjoyed for a long period of time, as well as the owners of the same premises before him, and for a period greatly exceeding twentyone years past. That a roadway has been in public use over and upon said premises and crossing said Chester Creek for many years past; the said creek being crossed by a bridgeway as now or formerly constructed, for a period of time as long as the memory of the oldest inhabitant will carry back; which bridgeway is and always has been constructed with open spans, admitting free passageway thereunder and full enjoyment of the premises period far exceeding twenty-one years past, from to plaintiff and his predecessors in title, for a roadway northwardly from said creek, to the a point near his old mill building standing in the abutment of the bridgeway standing on the northwardly site of the present channel of the creek. That said stream of water in times of high and flush water flows over the intervening space and land lying between the present channel way in low stages of water, to the point where the bridgeway commences near said old building, and such flush waters have always had free passage for flowing between said low water channel way and said point near said old mill building, and under said spans of said bridgeway and thus escaping into the creek channel, below said bridgeway. That he has constructed a raceway from his new mill standing above and westwardly from said bridgeway, to the said creek below said A plaintiff alleging consequential damages on acbridgeway, which raceway passes under the span count of a lawful act of a county is not entitled of the bridgeway and is necessary for the proper to an injunction to secure compensation for the in-enjoyment of said mill in carrying the waste water from the turbine wheel to said creek, the and that he will suffer irreparable damage from same being on his lands. the narrowing of the channel for the passage of the water, and from the taking of his ground now used for a passageway and tail race. That said roadway over his lands was not, and is not, laid out and established as a public road, under any Act of Assembly or authority of law, or by any proceedings in the proper Court usual in road cases, and therefore the said county and the public can only use the same and the said bridgeway in such manner as a right to use the same may have been established by long use. He further averred that the county of Delaware by its county commissioners, is reconstructing the aforesaid bridgeway by the erection of a new bridge and abutments, and is widening and extending the same beyond its former limits and uses, on his lands, and is about depositing stone, dirt, and material on his land to build and construct a solid roadway, from the said point near the old mill to the abutment on the northwestwardly side of the channel of said creek, in the place of the aforesaid bridge spans, and by so doing will fill up the raceway and prevent the flow of the waste water from his mill, and will also prevent the flow and escape of the flush waters of said creek, and will thus endanger the safety of his mill properties and do him great and unnecessary injury, and will prevent his passageway under said span and the full enjoyment of his property. He further averred that he had protested to the defendants against their said doings, but they have disregarded said protest; and the injury thus being done to him is of so serious a nature that it cannot be compensated in damages. He therefore prayed that defendants be enjoined from placing dirt, stone, and material on his premises, in filling up and making a solid roadway on his land in the place of said bridge spans, and from widening and enlarging said bridgeway or roadway on his land, and from filling up and destroying the constructed raceway from the mill under said bridgeway, and from damming back and preventing the full flow of the flush waters of said Chester Creek by any solid embankment of earth or stonework in the place and stead of said open bridgeway, spans, and structure. "The prayer of the bill is, first, for specific relief; and, secondly, for such other relief as to the Court may seem proper. "On the argument it was admitted by the de. fendants that they were about to reconstruct the bridge referred to, in such a manner as to amount substantially to a new bridge; that the present wooden structure was to be removed; that the three spans now existing are to be reduced to one; that the roadway is to be widened, piers removed, a new abutment erected, and the superstructure to be of iron instead of wood. They also admit that no action has been taken to obtain the concurrence of the grand jury or the approval of the Court of Quarter Sessions. "The defendants claim the right and power to rebuild this bridge, without the concurrence of the Court and grand jury, by virtue of the Act of Assembly of April 13, 1843 (P. L. 221). "The powers of county commissioners to erect, reconstruct, and repair county bridges, is clearly defined by the Supreme Court in the case of the Commonwealth v. the Commissioners of Monroe County (2 W. & S. 495). The case was decided in 1841. The reasoning of the Court below, fully concurred in by the Supreme Court, is unanswerable. As the law then stood the commissioners had no power to do ordinary repairs to any bridge without the concurrence of the Quarter Sessions. The case also decides that the reconstruction of a county bridge, which had been swept away by a flood,.was substantially a new bridge, and required the concurrence of the grand jury and Court. "The Act of 1843, above referred to, was passed to give the commissioners power, and to make it their duty to attend to the ordinary repair of county bridges, but was not intended to invest them with power, under the name of repairs, to build entirely new bridges. "When a county bridge is destroyed by fire, flood, or other accident, a new bridge can only be erected by and with the approval of the grand jury and Court. The reason is obvious. The grand jury are the representatives of the tax payers. No schemes for the expenditure of public money can be permitted without the consent of the people. If the commissioners have the power to take down bridges, erected by the county at a comparatively small expense, and replace them with new ones, requiring a large expenditure of public money, all the safeguards of the law against public extravagance would soon be destroyed. A preliminary injunction which was granted was continued on December 1, 1884, the Court, CLAYTON, P. J., filing the following opinion: "The plaintiff, in his bill, supported by his own and other affidavits, charges that the county commissioners have notified him that they intend to remove the old bridge at Rockdale and put up a new bridge in its place, that a new abutment is to be put up on the Middletown side, about eighty feet from the Aston side, filling in with solid earth and stonework the intervening space between this new abutment and the old abutment. He also charges that the new bridge is to be "It is contended, however, that as this is not shorter and much wider than the old structure, a tax-payer's bill, the question of authority is not raised. While it may be true that the question | bridge so dilapidated by wear, use, and time's deof authority to build the bridge is not the direct cay, as to render it economical to remove it and issue between the parties, it is incidental to it. build an entirely new structure upon a new, more The bill prays for relief from an alleged unlawful expensive, and commodious plan. No rule for act and Wilhelm's Appeal decides (79 Pa. St. R. the construction of statutes will sustain his argu120) that where there is jurisdiction of the sub-ment. ject-matter, equity may determine any incidental "It clearly means any sudden or accidental question necessarily involved. The plaintiff destruction, as by a tornado, fire, or other casucharges the commissioners with an unlawful in-alty. It cannot mean that the commissioners terference with his property. He may therefore may themselves destroy' a bridge, and without show a want of authority to do the act complained further authority than this Act of Assembly proof. ceed to construct a new one upon an entirely different plan. "The injunction is continued." The Court on February 2, 1885, refused to dissolve the injunction, saying:— "The real question between the parties to this bill is which shall pay the expense of arching the plaintiff's tail race which crosses the highway under one of the arches of the bridge, as now constructed, the county or the plaintiff. If the commissioners have authority to take down the present bridge and construct a new one on a different plan, without a jury of view and the concurrence of the grand jury and Court, then this injunction should be dissolved, because the right to recover the cost of bridging the tail race could be settled under the ordinary forms of an action at law, and there is no necessity for the intervention of a Court of Equity. "This brings us to the most important question in the case. Have the commissioners authority by law to take down a county bridge, when in their judgment a more substantial and commodious one is necessary for the accommodation of public travel? It is admitted that they had no such right previous to 1843. The rule then was that bridges were to be kept in repair by the same persons whose duty it was to keep the highway, of which the bridge was a part, in order. The Act of April, 1843, changed this rule and threw upon the county the duty of repairing county bridges. This, however, did not authorize the commissioners, where a bridge was destroyed by fire or floods, to erect a new one. "On Saturday, August 5, 1843, Delaware County was visited by an extraordinary flood. Nearly all the bridges on Chester Creek were swept away. In some cases the course of the stream was so changed as to make it necessary to alter the sites of some of the bridges. "To obviate the difficulty and overcome the delay of proceedings in the usual way, the Act January 26, 1844 (P. L. 24), special to Delaware County was passed. It declares that the Act April 13, 1843, shall be so construed as to authorize the commissioners of said county to rebuild any bridge which may be destroyed by floods or otherwise. The learned counsel for the commissioners contends that the word' otherwise,' in the Act just cited, covers the case of a 6 "The last and only other Act of Assembly upon the subject is that of May 5, 1876, which I construe to be nothing more than a statute extending to the whole State the Act of January 26, 1844, which was before that time special to Delaware County. This Act clearly specifies what the word 'otherwise' in the Act of 1844 was intended to mean, that is to say blown down, destroyed, partly destroyed, or swept away by floods, freshets, ice, storm, fire, or other casualty.' "The counsel for the commissioners holds that in the original proceedings for the erection of a county bridge, the only province of the viewers, court, and grand jury is to pass upon the question of public necessity for the bridge. "That question once settled, in favor of the petitioners, he contends that they have a carte blanche as to the style and expense of the structure, and that if a new necessity arises for a more commodious and expensive one, they alone have the discretion to remove the insufficient bridge and build such a one as, in their judgment, the public necessity may require. This is a mistake. The first question the original viewers have to decide is whether the proposed bridge be too expensive to be borne by the township. To properly decide this, they must ascertain the cost of the proposed bridge. The same question is then submitted to the grand jury, who are authorized to visit the site and call before them the county commissioners, with their plans, specifications, and estimates. If they concur, the practice in Delaware County is for the Court to submit the report to the commissioners, and if they concur, then to require them to lay before the Court their plans and estimates for the work, when, if the Court concurs, the order issues, and the bridge is built. Should the plans be changed, or the costs be unreasonable, increased, or a structure be erected materially different from the one concurred in by the Court and grand jury, it would be such a fraud upon the Court as to probably render the commissioners personally liable for the increased cost. (Lehigh Co. v. Klecknit, 5 W. & S. 181.) "True, the letter of the law does not require the estimate to be made until after the concurrence of the Court, but if the Court, to secure an intelligent judgment, requires it to be made before concurrence, and the commissioners cause it to be so made and submit it to the Court as the basis of the Court's action, they will be as much bound by it as if it were made afterwards, and in the order prescribed by the statute. It is equally clear that where a county bridge has been erected according to the provisions of the statute, and it should afterwards appear that the public convenience requires a more commodious and expensive one upon a new, improved, and entirely different plan, the question of the new necessity should be inquired into and decided in the same manner as in the erection of the original structure. There is no difficulty in the way of such a proceeding. Either the supervisor or citizens can petition for a jury of view. A few months, at farthest, will be required to have the question decided. In the mean time the commissioners must keep the old bridge in travelling condition." . . . An answer having been filed the case was referred to a Master (George B. Lindsay, Esq.) who recommended that an injunction should be granted as prayed for. Exceptions filed by defendant were dismissed, the Court saying: "The Master finds that the defendants have erected a bridge which encroaches sixty feet upon the natural creek bed. It cuts off the natural escape of the water from the plaintiff's water-wheel, requiring him to provide a culvert or some other outlet for it. It will dam back the water upon his mill more than ever before in time of such freshets as are known to occur in the creek. It will cast an additional flow of water over his lands, outside the creek banks, flooding his houses to his injury.' "The Master also finds that the plaintiff has not slept upon his right; that he not only objected, but that he filed his bill for an injunction as soon as he discovered the injury he was likely to suffer, and before the work was done. "The case was before the Court some time ago on a motion for a preliminary injunction. The opinion of the Court is reported in 2 Del. Co. Rep. 262 (supra). We have no reason to modify any of the views therein expressed. Let it be granted, however, for the purpose of the argument, that the commissioners have the right to rebuild a county bridge without the approval of the Court; still under Art. XVI. sec. 8 of the Constitution, the plaintiff is entitled to his injunction. Delaware County is a public corporation invested with power to take private lands for public use. The Constitution prohibits such corporations from injuring private persons by the enlargement or improvement of their works without first paying or securing the damages. The Master finds that in the enlarging or improving of this public work, the lands of the plaintiff have been greatly injured and that no compensation has been made or secured. Since the adoption of the Constitution of 1874, I am of opinion that no municipal, or other corporation, can improve or enlarge its works to the injury of private persons without first making or securing compensation. The proper thing for the commissioners to have done would have been to petition the Court for a jury to report upon the necessity for a bridge, and to assess the damages likely to be suffered by the plaintiff if a bridge should be ordered. This was the course pursued in the Shoemakerville Bridge Case. It seems to me that the sooner the commissioners undo their wrongful act and commence right, the better for all concerned. It is not necessary to go into the other questions passed upon by the Master. "The injunction heretofore granted is now made perpetual, costs to be paid by the defendants. Decree to be drawn in form by counsel and submitted for approval to the Court." Defendants then appealed, assigning the decree of the Court for error. H. C. Howard, for appellants. The decree by way of injunction is an exercise of high power and when its effect is to arrest a public work a chancellor would require a case of the clearest kind of abuse on the part of the representatives of the people, before arresting a work of such a character. Wheeler v. Rice, 2 Norris, 232. Courts cannot interfere where public officials exercise their unquestionable powers unwisely. Wharton v. School Directors, 6 Wr. 358. Road commissioners or supervisors have power in the exercise of their discretion to change the course of a running brook, if demanded by the public convenience. They are intrusted with the jurisdiction of such matters and are to decide both upon the necessity of the work and the mode of doing it, and it seems the Courts ought not to control them by injunction. Warfel v. Cochran, 10 Cas. 381. Nothing but a palpable disregard of the law will induce the Court to interfere by way of injunction, where the officers of a corporation are exercising a power submitted to their sound discretion. Hill v. Commissioners, 1 Pars. Eq. Cas. 501. Oil Creek Bridge Case, 11 Wr. 361. Humpheys v. County of Armstrong, 6 P. F. S. 204. Chester Co. v. Brower, 20 WEEKLY NOTES, 431. |