of the complete dedication of all the streets, and was bound thereby, yet, apart from this theory, his unqualified consent to the order of court, and without objection to or appeal therefrom, are quite enough to show a clear assent to the plan in full. But, when we consider the many deeds of lots made by him after the sale, expressly referring to the Arlington plan by volume and page, his assent to the plan becomes so full and clear that it needs no comment. Indeed, in January, 1876, as a lot owner, he had assented to the plan by conveying lots expressly according thereto. Counsel for defendant strenuously insists, however, that, the order of court being an adjudication in rem under the act of 1856, the plan was forced upon him. But the master thinks otherwise. In the first place, he voluntarily bought lots 1 and 2 after other lots were sold, and subject to the mortgage, knowing that, in case of sale, the lot owners could apply for the protection of the act of 1856. The order of court was made without a single protest from him either as to the applicability of the act of assembly, or by way of requesting the court to insert therein his opposition to the dedication, and making it without prejudice. His agreement with the lot owners, that they might buy in their lots at $15 each, has no relevancy here as regards Herman Pry, for it is not claimed that Pry knew of that agreement before he purchased; but defendant's counsel emphasize the fact of defendant's erecting the fence across Station street, and his use of the inclosure, as being notice to Pry of his disapproval of the dedication thereof, and of his claim thereto. To this the answer is-First, that the fence never completely or successfully obstructed Station street until May, 1892, while Pry bought in 1890; secondly, defendant admits that he never cultivated the inclosure close up to Fereday's fence, and, while the public insisted on passing through on foot, defendant was merely permitted to use the ground. The cases show that the public can so permit a partial or temporary user of a street without being estopped from asserting its right. Bigelow, Estop. 669. Even if defendant's obstruction by fencing were complete and exclusive, yet he had executed and delivered several conveyances of lots according to the Arlington plan prior to the first act of fencing; and, having thus declared a clear adoption of the Arlington plan, and intention to dedicate the streets according thereto, he had spoken once for all, and could not thereafter be permitted to set up a contrary intention as to part. Hence, defendant's offer to prove acreage sales by him is irrelevant. Defendant's counsel relies much upon the fact that Station street was never accepted by the public, and therefore there was no dedication; but this is a case between vendor and vendee, and, while acceptance has been frequently stated as a necessary element in dedication, in application it has been usually limited to those cases where a duty or liability has been sought to be

placed upon a township, borough, or other municipality for want of repair, etc.; and if the township or borough had never assumed control or management, i. e. had accepted the streets, the liability did not attach, and until such acceptance the township, etc., would not be liable. 2 Dill. Mun. Corp. 503; State v. Trask, 6 Vt. 355; Com. v. Fisk, 8 Metc. (Mass.) 238; Noyes v. Ward, 19 Conn. 250.

"The acquittal of defendant, when tried in the quarter sessions court for maintaining a nuisance by these obstructions in Station street, was quite right, and that acquittal fully accords with the master's views here, for clearly Mankedick could not be guilty of a public nuisance where the street was not a public, open one. Now, the dedication by Love, Jamison, and Mankedick may have been complete as against them, and yet Station street may not have ever been opened, but held in trust or abeyance until a lot owner chose to exercise his right to have that street opened. This is clear upon the authorities. In re Opening Pearl Street, 111 Pa. St. 556, 5 Atl. 430; Elliott, Roads & S. p. 112.

"1. Jamison then, and Mankedick, his assignee, were estopped by the release made by the former on the margin of the recorded mortgage.

"2. Aside from the release, Mankedick is estopped by his own conduct regarding the sheriff's sale, and his subsequent deeds."

D. F. Patterson, for appellant. J. W. Kinnear, for appellees.

PER CURIAM. A careful examination of the record, including the able and exhaustive report of the learned master, has convinced us that his findings of fact, as well as his conclusions of law, are substantially correct, and fully justified the decree from which this appeal was taken. There is nothing in either of the specifications of error that requires special notice. Neither of them is sustained. Decree affirmed, and appeal dismissed, with costs to be paid by the defendant.

(172 Pa. St. 435) DOUGLASS v. MONONGAHELA CITY WATER CO.

(Supreme Court of Pennsylvania. Jan. 6, 1896.) ACTION AGAINST WATER COMPANY · EXCAVATION

IN STREET-NEGLIGENCE. Plaintiff, hearing a fire alarm, left the sidewalk, and started to run along the roadway, and, while so running, struck a barrier erected by defendant water company in front of an excavation made by it in the street for the repairing of a water main. The excavation was made on Saturday, and the accident happened about 9 o'clock Monday evening. The barricade consisted of two empty barrels, across which a piece of plank was laid. A gaslight was burning on a street corner 60 yards away. Plaintiff struck the barrier so forcibly as to dislodge the plank, and he fell into the excavation. Held, that the question of defendant's negligence was for the jury.

Appeal from court of common pleas, Washington county.

Action of trespass by James C. Douglass against the Monongahela City Water Company and Monongahela city to recover damages on account of personal injuries sustained by him by reason of his falling into an excavation upon Chess street, in said city, on the evening of July 3, 1893. At the close of the plaintiff's testimony the plaintiff took a voluntary nonsuit as to Monongahela city, leaving the issue joined as between himself and the water company. From a judgment for plaintiff, defendant appeals. Affirmed.

On Saturday, July 1, 1893, the defendant company found it necessary, in order to repair one of its mains, to make an excavation upon the south side of Chess street, and near the center of said street, between Mead and Ninth streets. Said opening was about 4 feet in length, parallel with the curb line, about 2 feet in width, and from 3 to 32 feet in depth. The material removed from said excavation was piled at one end thereof, and on the evening of July 1st, the work not being entirely completed, a barricade was erected around said opening, in the following manner: Two empty lime barrels were placed, one at each corner furthest removed from dirt pile. A piece of grub plank was laid across the end of the opening, from one barrel to the other, from 12 to 14 feet in length. Plank were laid, one on each side of the excavation, extending from the barrels to the dirt pile. A grub plank is a heavy plank used in the construction of coal boats, and is 2 inches thick and from 8 to 12 inches wide. Chess street is paved with brick from Fourth street to Mead, and is 30 feet in width from curb to curb, and at the time of the accident there was a good sidewalk along the south side of the street between the points named. On the evening of July 3d, at about 9 o'clock, the plaintiff, in company with Benson Robinson, started from the central part of the city to go to the residence of Capt. Abrams, on Mead street. He went up Fourth street to Chess, and passed down Chess to Mead street, walking upon the sidewalk on the south side of Chess street, and passing the excavation. At about 9:30 he left the residence of Capt. Abrams, and came down Mead street to Chess in company with Benson and Silas Robinson. After leaving Abrams' house the party heard an alarm of fire, and started on a run down Mead to Chess, leaving the sidewalk at the corner of Mead and Chess, and running up Chess street in the direction of the supposed fire, the plaintiff being a little in advance of his companions. The distance from the intersection of Chess and Mead streets to the place of the accident was 61 yards. A gaslight was burning at the corner of Chess and Mead streets, and another at the corner of Chess and Ninth streets, one square above. The plaintiff ran against the ob

struction, striking the barrier with such force as to throw him over the grub plank and dislodge it, and fell into the excavation. He sustained injuries to his face and ear, and claimed that the latter injury permanently affected his hearing.

T. H. Baird and Todd & Wiley, for appellant. J. W. & A. Donnan, J. M. Braden, and C. G. McIlvain, for appellee.

PER CURIAM. The learned trial judge very properly refused requests for binding instructions from both parties. The testimony tending to prove defendant company's negligence was abundantly sufficient to require its submission to the jury, and that relating to plaintiff's alleged contributory negligence was not of such a character as to justify the court in withdrawing the case from the jury. The charge, as a whole, was quite as favorable to the company as it could reasonably ask. The rights and duties of both parties were carefully explained, in well-guarded language. This was not the case of a traveler voluntarily assuming the risk of known danger. The modification of that doctrine sought by defendant's fifth request for instructions cannot be regarded as proper. Discussion of the questions involved would serve no useful purpose. The case was well tried, and defendant has no just cause of complaint. Judgment affirmed.

When the question involved in a feigned issue under the sheriff's interpleader act is whether there was such a delivery of the property pursuant to an alleged sale to plaintiff as would be good against the defendant execution creditor, and the issue was submitted to the jury with instructions favorable to plaintiff, and there was no question as to admission of testimony, a judgment in favor of defendant will be affirmed.

Appeal from court of common pleas, Butler county; John M. Greer, Judge.

Feigned issue directed by the court under sheriff's interpleader between A. W. Kreps and J. H. Miller. A judgment having been rendered on a verdict in favor of defendant, plaintiff appeals. Affirmed.

During the year 1894, and prior thereto, Annie E. Sink kept a restaurant and lodging house, furnished and equipped with the goods and property in dispute in this case, on East Jefferson street, Butler, Pa., in the building of G. Wilson Miller, with up and down stairs apartments. At the entrance on Jefferson street, she had in large letters, in a conspicuous place, a sign in her own name, commonly known to the public as "Mrs. Sink's Restaurant." She kept a large dining room and a number of furnished bedrooms for guests, and accommodated a good trade of table

boarders and lodgers. J. H. Miller, the defendant, was a creditor of Mrs. Sink. Some time prior to 1894 he became her bail on the note of $125, upon which judgment was entered in this case for money borrowed in part to equip this restaurant, and was compelled to pay it. He afterwards procured judgment thereon against Mrs. Sink for his use July 26, 1894, and levied on the goods and furniture in this restaurant then in the possession of Mrs. Sink. A. W. Kreps, the plaintiff, notified the sheriff that he claimed these goods and furniture by virtue of an alleged bill of sale, dated June 12, 1894. At the time of this alleged sale to Krepps, there was no actual or visible delivery of the property, nor change in the possession and use of it, or at any time thereafter. The sign of Mrs. Sink remained at the front entrance. She carried on the business as before. never took possession of the property, or occupied the restaurant and its apartments, but things continued on as before without any real or apparent change or notice to the public, or any one, and thus existed at the time of the levy on Miller's writ, July 26, 1894. The case, upon notice of reps that he claimed this property, came on to be heard in an issue under the sheriff's interpleader act, where all the facts were fully left to the jury, who returned a verdic in favor of Miller, the execution creditor.

Kreps

Ralston & Greer and Joseph B. Bredin, for appellant. F. S. Bowser and R. P. Scott, for appellee.

PER CURIAM. This feigned issue under the sheriff's interpleader act was submitted to the jury, on the testimony properly before them, with instructions quite as favorable to the plaintiff as he could reasonably ask. The main question was whether there was such a delivery of the property in controversy, pursuant to the alleged sale by Mrs. Dougherty to the plaintiff, as would be good against the defendant. The testimony as to the bona fides of the alleged delivery and change of possession was so meager and unsatisfactory as to make the question of its submission a close one; but the learned trial judge, giving the plaintiff the benefit of any doubt as to its sufficiency, submitted it fairly to the jury, and they found in favor of the defendant. There was no question as to the admission or rejection of testimony. Nor do we think there is any question involved in either of the assignments of error that requires discussion. Neither of them is sustained. Judgment affirmed.

(172 Pa. St. 331)

LULAY et al. v. BARNES. (Supreme Court of Pennsylvania. Jan. 6, 1896.) AGREEMENT FOR SALE-COAL ON LAND-IDENTITY OF SUBJECT-MATTER-NOTICE FROM RECORD -ADVERSE POSSESSION- MERGER.

1. By written agreement one party thereto sold to the other a certain tract. After describing this tract sold, the agreement continued:

"The coal right in the northern hill, as far as to the center, between the southern and northern boundary, vests in the purchaser, and he has the right to dig the coal as his property, and to make a road to the coal bank, over the shortest and most passable route." Held, that the agree ment was not so vague and uncertain as to be incapable of enforcement, the testimony of the scrivener who wrote it showing that the "northern hill" was on a tract adjoining that sold.

2. The effect of the record of articles of agreement, showing the purchase of the coal on certain land from the equitable owner thereof, as notice to all the world, is not affected by the fact that the legal owner of the premises subsequently gives to the former vendor a deed vesting in him a complete title to the premises. 3. The possession of the surface of land is in no way adverse to the right of possession of coal beneath the surface by another under an agreement for the sale of such coal.

4. The purchaser of coal beneath the surface is not bound to take actual possession in order to preserve his title thereto.

5. A recorded contract for the sale of a tract of land, and also of coal beneath the surface of an adjoining tract, by the equitable owner of such properties, is not merged in a subsequent Ideed of the latter tract by the legal owner to the purchaser.

Appeal from court of common pleas, Cambria county; J. H. Longnecker, Judge.

Ejectment by George Lulay and others against Thomas Barres to recover coal underlying certain land. From a judgment for defendant, plaintiffs appeal. Reversed.

Donald E. Dufton, E. H. Flick, and Aug. S. Landis, for appellants. Alvin Evans, for appellee.

GREEN, J. We find ourselves quite unable to agree with the learned court below as to the principles upon which this case was tried. The most important of the rulings was that the fifth clause of the agreement between Anton Rieger and Adam Lulay was so vague and uncertain in its terms that it could not be enforced by a chancellor, or by a verdict in ejectment. Entertaining this view, the learned court, in the general charge, and in answer to the defendant's point, withdrew the case from the jury, and directed a verdict for the defendant. An examination of the agreement and the testimony impels us to a very different conclusion. The agreement, being drawn by an illiterate German, is, of course, crude, inartistic, and not by any means so precise and definite in its terms as it should have been. But these defects are far short of that vagueness and uncertainty which renders an instrument void for that reason. The agreement was written in the German language. Two translations of it were given in evidence, one by the plaintiffs and the other by the defendant; but the differences are so trivial that either may be accepted as correct without varying the result. One aspect of the paper is beyond all dispute, and is not questioned; that is, that one feature of the contract was a positive agreement by Rieger to sell to Lulay a desig nated tract of land containing 128 acres, described by adjoiners only, and having there on erected a dwelling house, sawmill, and

part of a barn newly erected. Neither the state, the county, nor the township where the tract was located is stated in the agreement; and, if there was any dispute upon that subject, the ambiguity could only be helped by parol testimony, which, of course, would be received for that purpose. But there is no dispute, and both parties agree, that the tract was located in Susquehanna township, in the county of Cambria, Pa., and that it was part of a larger tract of 264 acres and 77 percles, the equitable title to which was vested in the grantor, Anton Rieger; the legal title being held by two men, named Bergstresser, living in Missouri. The other subject of the conveyance was a right to mine coal from another piece of property, and this is provided for in the fifth clause of the agreement, and is the matter in controversy. In the plaintiffs' translation the words are as follows: "The coal right in the northern hill, as far as to the center, between the southern and northern boundary, vests in the purchaser, and he has the right to dig the coal as his property, and to make a road to the coal bank over the shortest and most passable route." The sixth clause relates to the same matter, and should be read in this connection. It is in these words: "Anton Rieger has likewise the right of access to the coal over the shortest and most passable route that will cause the least damage, on the southern side, and, if necessary, prospect for coal, and to open a coal mine on the said purchaser's, Adam Lulay's, property; but he is not allowed to take out coal over the middle." It is perfectly clear, by the fifth section of the agreement, Rieger sold to Lulay the right to dig coal as his (Lulay's) property on another property than the 128 acres. There is no no doubt, vagueness, or uncertainty as to that. It was an absolute agreement to sell,in fact an actual sale,-under the phraseology of the fifth clause, of all the coal underlying the surface of the tract referred to; and it was a fee-simple estate in the coal, thus severing it from the land on the surface. Nothing was left to ascertain but the identity of the tract underlaid by the coal. It was to be the "coal right in the northern hill, as far as to the center, between the southern and northern boundary." Of course, parol testimony was admissible to explain the ambiguity, and such evidence was offered, admitted, and delivered, and a reading of it removes every vestige of doubt or uncertainty as to the exact location of the land. Anton Rieger lived on the tract of 128 acres which he sold to Lulay. But that was only a part of the whole tract of 264 acres and 77 perches of which he was the equitable owner. The remaining part of the whole tract contained 136 acres, and this was retained by Rieger. But there was coal on this part, and there was a "northern hill" part. That 136-acre part extended in a north and south direction, and it was only necessary to run an east and west line through the center of that tract in order

to determine the exact locality of the land under which the coal in place was sold. This was done, and on the trial a surveyor testified that he run the east and west line through the center. A draft was made, and given in evidence, showing the lines of the whole piece by courses and distances. It immediately adjoined the 128-acre tract, and showed a plain and natural connection between that tract and the part containing the coal. In connection with the testimony of Sheriff, the scrivener who wrote the agreement, the whole subject was rendered as clear as the sun at noonday, and every element of uncertainty as to the only matter of doubt in the case, to wit, the identity of the land intended, instantly vanished. Sheriff, after stating that he was with both the parties, and that Rieger wanted to sell the 128acre tract, that Rieger offered to sell the tract for $2,500, and that Lulay declined to give that much, and that they separated in order to examine some other land, but afterwards returned to Rieger's in the afternoon of the same day, was asked to state what occurred when they went back to Rieger's. He replied: "Well, when we got back to Rieger's, then I told Rieger,-that is Jacob Sheriff told Rieger: 'Now, Lulay is coming down. He wants to buy coal along with his 128 acres.' I then told him: 'Rieger, you have a bank open. You keep that. Now, on the opposite side of the hill there is coal in that too.' So, after talking, they agreed that Rieger should keep the coal where the vein was opened, and Lulay would get the hill where no veins were opened; so that contract was made that he should get the coal right in that hill and the 128 acres in land for $2,500. Then Rieger asked me to write the agreement. Gentlemen, you must excuse me, I am not very plain in English. So I asked him, 'Where is the north, and where is the south, and where is the east, and where is west?' and I wrote the line for 128 acres as near as I can from the points of the compass, and this is the coal right. I wrote it in the northern hill. He told me that hill, and I wrote it as was his understanding, and he told me himself that was the hill. Q. Rieger told you? A. Yes, Rieger told me himself the coal right in the northern hill, through the middle between the southern and northern boundaries. So that means, in other words- Defendant's Counsel: We object. Never mind what it means. You just tell us what they said. A. Well, it was through the middle, between the northern and southern boundaries, and the purchaser has the right to dig the coal as his own property, and to have the right make a road to the coal bank, the shortest and most suitable route which can be made for hauling. Q. That was the understanding, was it? A. That was the understanding, and so I wrote the agreement." On cross-examination he testified: "There is a steep hill on the south side, and a big hill on the north side, and that goes west, and

that hill goes east; and when on top of that hill I asked him, 'Where is north, where is south, where is east, and where is west?' so I could write the agreement. And I put the coal right in the northern mound, between the northern and southern boundary; and the purchaser had the right to dig the coal on that hill as his property, and to make a road the shortest way where he could make it suitable for hauling." Again, he testified, explaining the draft to the jury: "Here is the northern hill, and that coal right goes to the middle between the northern and southern boundary. Here is the southern hill. The coal right in the northern hill is Lulay's, and in the southern part was for Rieger himself." There was much more of the same kind of testimony from the witness. None of it was contradicted or impeached in any way, and, to our minds, it affords a most complete and satisfactory solution of the question as to the identity of the land under which the coal sold by the agreement lay. It is really so extremely plain and simple that no extended argument or citation of authorities is needed in its support. The error of the learned court below consisted in the wrong application of a correct rule of law that, where a contract or other paper is so vague and uncertain that it cannot be interpreted, it falls for that reason. But that principle has no application here, because this contract in all its essential parts is neither vague nor uncertain. It is a clearly expressed agreement to sell a tract of 128 acres of land, and all the coal underlying another tract of land. In the description of the land overlying the coal there is an inadequacy of statement of identifying particulars, and the only necessity of the plaintiffs' case was to supply this deficiency. This has always been allowed, and in this case the explanation was of the clearest and most satisfactory character. The whole case should clearly have been submitted to the jury on all the evidence, with instructions that, if they found that the coal claimed by the plaintiffs was contained within the land described in the plaintiff's writ, they were entitled to recover. We sustain the several assignments of error which relate to this subject.

Adam Lulay, the grantee in the agreement of sale which was dated June 10, 1871, had it recorded in the proper office on April 3, 1872. On the trial the plaintiffs' counsel submitted their third point,-that, being properly recorded and indexed, it was constructive notice to the world of his rights under the agreement, of which the defendant was bound to take notice. The court below answered the point by saying that it was notice of any rights which Lulay had when placed on record, but when it was followed within a few years by a deed vesting a complete title to the premises in Rieger, who continued for some 17 years in the exclusive possession thereof before selling to the defendant, the latter was not bound by such notice. We

think this answer was erroneous, as well as the answers to the fourth and fifth points of the plaintiffs, for obvious reasons. The conveyance made to Rieger subsequently to the deed was simply the conveyance of the legal title by the Bergstressers to Rieger for the 136 acres adjoining the 128 acres sold to Lulay. The Bergstressers were not parties to the agreement of sale between Rieger and Lulay, and they were, therefore, not in a position to affect Lulay's rights under that agreement by any conveyance they might make to Rieger. Consequently no such conveyance could deprive Lulay of the benefit of the recording of his agreement as notice of all his rights under the agreement. As to the subsequent possession of the surface of the 136-acre tract by Rieger, it was not in any degree adverse to the right of possession of the coal underneath the surface by Lulay, and was, therefore, neither hostile, visible, notorious, nor continuous. It was no possession of the coal whatever. The coal was severed from the surface by the agreement, and the estate of Lulay in the coal was a fee-simple estate, which was entirely consistent with Rieger's estate in the surface. Lulay's recorded agreement was, therefore, notice of all his rights, legal and equitable, under that instrument; and its quality as such could not be affected by any conveyance made by anybody subsequently to the date of its record. The question of the effect of any such conveyance is an entirely different question, depending upon its own merits, but not capable of diminishing or changing the effect of the record as constructive notice to all subsequent purchasers or incumbrancers. Lulay had not only the title conferred by the agreement, but he had entered into full possession of the 128-acre tract in 1872, and had paid all the purchase money by the year 1874, and that purchase money included the price of the coal. Any purchaser from Rieger thereafter would be bound to examine the record for conveyances by him; and, if he had done so, he would have discovered the conveyance of the coal in the agreement, and this would put upon him the duty of inquiry from the parties as to where the coal was located, and this would have led to the discovery of the actual facts.

The learned court below seemed to think, and so charged, that Adam Lulay was bound to take actual possession of the coal in order to preserve his title under the agreement; and this also was a mistake. A purchaser of land in fee simple may or may not take possession of his purchase, at his pleasure. His title, if he has a good one, is just as perfect with or without possession. Of course, his title may become affected by an adverse possession taken by a stranger if it has continued for 21 years, and possesses all the other requirements of that kind of title; but there was nothing of that kind in this case. We therefore sustain the third, fourth, fifth, and tenth assignments.