paragraph harmonious throughout. "Ex an- |2. Eminent domain 100 (6) — Railroad purtecedentibus ex consequentibus fit optima interpretatio."

The act of 1895 contains substantially the Where property had been purchased in resame language. The gift here was certain-liance on and in accordance with a division of ly to a religious use, and hence, under these acts also, appellants have no interest in the fund. Kortright's Estate No. 2, 237 Pa. 143, 85 Atl. 111; Toner's Estate, 260 Pa. 49, 103

The appeal is dismissed at the costs of ap- by the railroad company and included in the pellants.

(112 A.)

damages caused by the elevation of railroad passageway was planked, and people drove tracks over a vacated street crossing, although or walked over it at pleasure until the canal the property immediately in front of the owner was again filled. This situation continued seeking damages has not been vacated. until 1857, when the Pennsylvania Railroad Company purchased from the state the bed of the canal, graded and laid railroad tracks thereupon, and at First street planked the space between the outside rails of the two tracks, so that those using the street could safely pass thereover. The rest of the street was kept in order by the borough of Freeport, after its incorporation in 1833. So far as appears from this record, from 1857 to 1915 there never was any challenge of the right of the public to cross the tracks as a part of First street.

Appeal from Court of Common Pleas, Armstrong County; J. W. King, President Judge. Proceedings by Mary Donnelly against the Public Service Commission of the Commonwealth of Pennsylvania to recover damages from a street vacation, wherein the Pennsylvania Railroad Company intervened. From a judgment for plaintiff, the Railroad Company appeals. Affirmed.

Argued before BROWN, C. J., and STEWART, MOSCHZISKER, FRAZER, WAL LING, and SIMPSON, JJ.

In the latter year the railroad company purchased additional property fronting on

G. C. Christy and H. A. Heilman, both of the street, and entered into negotiations Kittanning, for appellant.

C. E. Harrington and C. L. Wallace, both of Kittanning, for appellee.

SIMPSON, J. [1] The only errors alleged in this case are that the court below erred in not giving binding instructions for defendant, and in not entering judgment in its favor non obstante veredicto. "Under these circumstances, all the evidence and inferences therefrom favorable to plaintiff must be taken as true, and all unfavorable to him, if depending solely upon testimony, must be rejected." Wiles v. Emerson-Brantingham Co., 267 Pa. 47, 49, 110 Atl. 280. Viewed in this light, the proofs, though covering a long period of time, are not perplexing, and the law applicable thereto, though interesting and important, is not intricate or difficult of application. The following are the essential facts established in accordance with the rule stated:

with the borough officials, who acted under an ordinance passed for the purpose, which resulted in a contract by which the borough agreed to vacate First street where it crossed the railroad, and the company agreed to elevate its tracks (which were to be increased to four) so as to get rid of the grade crossings in the borough, and further to pay all expenses and assume all liability arising by reason of the vacation of the street. The contract was approved by ordinance and duly executed. Attached to it was a plan which showed First street as a public street crossing the railroad's right of way at grade, as did also both ordinances. Following this, as required by the Public Service Company Law, the borough and the railroad company applied for and obtained the approval of the Public Service Commission, the petition having attached thereto the contract and plan of the improvement. The borough then vacated the street, and the railroad company built concrete retain ing walls about 18 feet high on each side of its present right of way, thereby closing the street to public travel; the width of the

canal with its berm banks, towing path, and slopes.

In 1797 David and William Todd, owning a tract of land now forming the borough of Freeport, divided it into building lots and sold them as fronting on certain streets appearing on the plan of the improvement. | structure being much greater than was the One thereof was First street, and the property fronting thereon now owned by plaintiff, the alleged injury to which is the cause of this litigation, was purchased by her predecessor in title directly from the Todds according to the plan. By the act of February 25, 1826 (P. L. 55), the canal commissioners of the state were authorized to and thereafter did open a branch canal, inter alia, through said property, crossing First street and all the other streets which ran in a north and south direction. The canal was operated while the weather was warm enough for the purpose, but, when the possibility of freezing arose, the water was drained off and so remained until the danger thereof was past. There was no bridge across it at First street, and those who desired to travel thereover while it was full did so by boat; but after it was emptied a

Plaintiff and others thereupon applied to the commission to ascertain and determine the amount of damages caused to their properties by the vacation of the street and the elevation of the railroad, hearings were had, and an award made in favor of plaintiff. From this award she appealed to the court of common pleas, and, with the consent of the parties, an issue was formed to determine the amount of damage suffered by her in excess of benefits "for property taken, injured or destroyed in the construction, relocation, and alteration or abolition of said grade crossings, the elevation of the railroad tracks or the vacation or partial vacation" of First street, the verdict to "also include all elements of damages submitted to and passed upon by the Public

Service Commission." Under this plaintiff [ south streets, exactly as they did First had the right to recover not only the dam- street, if appellant's present contention is ages to which she would have been entitled correct, it could, of its own motion and within a proceeding against the borough, but out incurring any liability, have elevated its also any sum for which the railroad com- tracks and divided the borough into two pany was liable to her. From the judg- parts, leaving no open way through which ment entered on a verdict in her favor de- the public could travel from one to the fendant prosecutes this appeal, and by stip- other. This does not prove the right so to ulation filed agrees it will not "argue or do did not exist; but results so far reachpresent any questions affecting the regularity | ing, not only here, but as to many other and jurisdiction of proceedings by the claim- | railroad crossings in the state, warn us that ant before the Public Service Commission, this view should not be accepted unless unor the right of claimant to appeal to the avoidable. In the present instance escape is court of common pleas from the decision" easy, for we have simply to hold, as we alof the commission. The specific objections ways have done, that where two public ways now made, and the only questions necessary cross, each must be operated with due regard to consider, are whether or not defendant to the rights of users of the other, and was entitled to judgment, as a matter of neither may be closed except in the way and law, because, as is alleged: (1) It had subject to the liabilities, if any, prescribed the legal right, without liability, to elevate by Constitution or statute. This rule was its tracks on that part of its right of way evidently recognized by appellant when it which it had purchased in fee from the entered into the contract with the borough, state; and (2) plaintiff incurred no legal and is particularly applicable here, for not ondamage, since the street was not vacated ly by its contract, petition, and attached plan, immediately in front of her property. but by placing and maintaining planks between its tracks for more than half a century, it invited the public to cross, and irrevocably recognized it as a street by allowing the borough to expend moneys on so much of the right of way as was outside of the tracks.

As defendant obtained the contract with the borough and the certificate from the commission, by a recognition of First street as a highway, which the public had a right to use in crossing the tracks, it is reasonably certain it is estopped under the maxim, "Allegans contraria non est audiendus" (Garber v. Doersom, 117 Pa. 162, 11 Atl. 777; Vetter's Appeal, 99 Pa. 52; Edwards' Appeal, 105 Pa. 103); but it is not necessary to base a decision on this point, since the defense is unavailing for three additional reasons:

[3] Second. The vacation was not only of so much of the street as was included in the purchase from the state, but also of the additional width above referred to, and for this much at least plaintiff, if injured, could recover from the borough and under the issue from defendant in this proceeding.

[2] First. While its authority over its [4] Third. When the street was vacated, right of way is "exclusive at all times and plaintiff's contractual right of a private way for all purposes, except where a way crosses over First street, arising by virtue of her it" (Pittsburgh, Ft. Wayne & Chicago Rail- ownership of a lot purchased from the way v. Peet, 152 Pa. 488, 492, 25 Atl. 612, 19 Todds according to their plan showing it to L. R. A. 467; Western Penna Railroad Com- be a street, once again became effective, pany's Appeal, 99 Pa. 155; Commonwealth despite the vacation, at least so far as said v. Ruddle, 142 Pa. 144, 148, 21 Atl. 814), additional width is concerned, and of this the right of passage by the public, where she could not be deprived by defendant's there is such a crossing, none the less con- taking possession for the purpose of its tinues (Pittsburgh, Virginia & Charleston tracks, unless it made compensation thereRailway Co. v. Commonwealth, 101 Pa. 192, for. In re Melon Street, 182 Pa. 397, 403, 197, 198; Commonwealth v. Philadelphia, 38 Atl. 482, 38 L. R. A. 275; Carroll v. Harrisburg & Pittsburgh Railroad Co., 23 Pa. Asbury, 28 Pa. Super. Ct. 354, 360; ChamSuper. Ct. 205, 211) even in those cases bersburg Shoe Manufacturing Co. v. Cumberwhere the company by purchase of the canal land Valley Railroad Co., 240 Pa. 519, 87 from the state owns the fee of the property Atl. 968. In every aspect, therefore, bind(Pennsylvania Railroad Co. Duquesne ing instructions for defendant would have Borough, 46 Pa. 223; Book v. Pennsylvania been error. Railroad Co., 207 Pa. 138, 56 Atl. 352). Defendant's fee is indeed no higher than the fee of every abutting owner; the valuable right, so long as it exists, being the right of passage, whether of defendant over its tracks or the public over the street. Since the canal originally, and, until this improvement was made, the right of way of the

V.

[5] It is undoubtedly true that, prior to the adoption of the present constitution, a property owner, whether abutting or otherwise, could not recover damages for the vacation of a street, and no such right is given by that instrument (Howell v. Morrisville Borough, 212 Pa. 349, 61 Atl. 932); but it is equally true the Legislature may impose

(112 A.)

did through plaintiff's. Actual damage thus becomes the test of the right to recover, if access to and from the property is shut off in one direction, as was the case here; and, since every witness called by the railroad company, as well as those called by plaintiff, testified to actual damage, this objection also is unavailing.

Vacation of Centre Street, 115 Pa. 247, 8 the vacated street passes, as First street Atl. 56; In re Vacation of Howard Street, 142 Pa. 601, 21 Atl. 974; Hare v. Rice, 142 Pa. 608, 21 Atl. 976), and in so doing may determine to what class of owners it shall be given. If it is extended to those whose property is "taken, injured, or destroyed" by the vacation, recovery can be had if the street in front of the property thereby becomes a cul-de-sac, as it does here (Mellor v. Phila, 160 Pa. 614, 28 Atl. 991; In re Melon Street, 182 Pa. 397, 38 Atl. 482, 38 L. R. A. 275; Lewis v. Borough of Homestead, 194 Pa. 199, 45 Atl. 123; Chambersburg Shoe Manufacturing Co. v. Cumberland Valley R. R. Co., 240 Pa. 519, 87 Atl. 968; Ruscomb Street, 33 Pa. Super. Ct. 148), and hence the only remaining question is: Has the Legislature imposed such liability?

[6] By the Public Service Company Law of July 26, 1913 (P. L. 1374), it is expressly provided that—

The judgment of the court below is affirmed.

COMMONWEALTH ex rel. BUCHANAN et al., Directors of Poor and House of Employment, v. UNDERWOOD, County Controller, (Supreme Court of Pennsylvania. Dec. 31, 1920.)

Judgment

510-Judgment against poor district not subject to collateral attack by controller on ground of collusion.

While the controller of Washington coun"The compensation for damages which the ty as auditor, under Act April 6, 1830 (P. L. owners of adjacent property, taken, injured, or 256), as amended by Act May 6, 1909 (P. L. destroyed, may sustain in the * aboli-434) of the poor district of the county, had tion of any such [grade] crossing * * *shall, discretion on presentment of a claim against after due notice and hearing, be ascertained and the district to refuse to approve it or to coundetermined by the commission, and ***tersign a warrant to enable the directors of the shall be borne and paid *** by the public poor to pay it, where thereafter claimant got service company or companies or municipal cor- judgment against the district, neither the conporations concerned as the commis- troller nor any other taxpayer having intervension may * * determine, unless the saided to defend, as under Act March 23, 1877 (P. proportions are mutually agreed upon."

* *

In the present case the railroad company agreed to pay all the damages. It will be observed by this act recovery is not limited to abutting property, but extends to that which is "adjacent," as plaintiff's admittedly is. By the Borough Code of May 14, 1915 (P. L. 312), it is provided:

"The right to damages against boroughs is given to all owners or tenants of lands, property, or material abutting on or through which pass roads, streets, lanes. or alleys injured by the laying out, opening, widening, vacating, extending, or grading of such roads, streets, lanes, or alleys," the amount thereof to "be ascertained, fixed and paid in the manner prescribed by the Public Service Company Law."

L. 20), he might, even after default judgment, by way of petition to open it, it not having been attacked directly, by appeal or proceeding before a chancellor to vacate it, became conclusive, and, on mandamus by the directors of the district against the controller to compel the countersigning of a warrant for its payment, could not be collaterally attacked by averment in the return of collusive bringing of the action.

Appeal from Court of Common Pleas, Washington County; James I. Brownson, President Judge.

Mandamus by the Commonwealth, on the relation of R. C. Buchanan and others, Directors of the Poor and of the House of Employment for the County of Washington, against T. J. Underwood, County Controller

By the act of June 22, 1917 (P. L. 627), of Washington County, to compel the counterit is provided:

"That all damages which shall be suffered or sustained by any owner or tenant of lands, property, or materials, in any borough of this commonwealth * * * abutting on, or through which pass, roads, streets, lanes or alleys inby jured vacating such roads, streets, lanes or alleys *

the *

* *

*

of

signing of a warrant. Writ awarded, and defendant appeals. Affirmed.

From the record it appeared that in Washington county the relief and care of the poor are carried on under a special law. By the act of April 6, 1830 (P. L. 256), the Legislature provided for the election of three whereby private lands, property, or materials | directors of the poor, and erected these dimay or shall be injured, taken, or destroyed rectors into a body politic and corporate, by any borough * * shall be ascertained" | under the name "The Directors of the Poor as provided by the Borough Code aforesaid.

These acts cover not only abutting property, but also all property "through which"

and of the House of Employment for the County of Washington." The act reposed in this body corporate all authority to provide buildings and all things necessary for the lodg

ing, maintenance, and employment of the poor taken place, even after the entry of a judgof Washington county, and it further provided ment by default, by way of a petition to open that all the accounts and moneys received such judgment. and expended should be audited by the coun- 3. He not having chosen thus to intervene ty auditors. Since the act of May 6, 1909 in the action, and the judgment having been (P. L. 434), Washington county has had a regularly recovered, and standing upon the county controller, who acts in the place of and performs the duties theretofore performed by the county auditors.

record unreversed, unappealed from, and unattacked directly by any petition to open it, it operated as a conclusive adjudication, and The directors of the poor discovered that could not be collaterally impeached, even by an inmate of the county home was a resi- the county controller. It can be impeached dent of the Pacific Coast, and R. C. Buchanan, only by a direct attack, i. e., either by appelone of them, took him there. Upon return to late proceedings or by appropriate proceedWashington, Buchanan presented to the coun- ings before a chancellor to have it opened ty controller his bill for the expense of the and set aside. The introduction into this rejourney. That officer refused to approve it. turn of the averments respecting a collusive Buchanan then brought suit against the Di- bringing of the suit is a collateral and not a rectors of the Poor and of the House of Em- direct attack. It is an attempt in a collatployment for the County of Washington, for eral proceeding to set up, on behalf of the the recovery of his expenses, and judgment defendant in the judgment, a defense which was entered in his favor. The directors that defendant was called on by the summons thereupon presented a bill to the controller to make before the judgment was rendered. for approval, asking for money to pay Bu- The form of direct attack in which to set up chanan's bill, now reduced to a judgment. that the defendant was collusively deprived The controller again refused to approve, and of this defense would be by a rule to open the directors then filed their petition for the judgment; the record thereof being reguwrit of mandamus to compel him to counter- lar upon its face. sign a warrant for the payment of the bill. The writ prayed for was awarded because the learned court below had reached the following conclusions:

1. When the claim of R. C. Buchanan was first presented to the controller for audit, in accordance with the regular practice observed by the directors of the poor and the controller, the latter had discretionary power to refuse to approve it or to countersign a warrant for the purpose of enabling the directors to pay it.

2. When, after this refusal by the controller, Mr. Buchanan brought suit upon the claim against the poor district, Mr. Underwood, the controller, if he believed it to be an unjust or invalid claim, could have intervened in that suit to defend, on behalf of the poor district, against the claim. Whether by virtue of the act of 1909 he would have the power and right, as controller, so to intervene, upon an allegation of collusion, in the same way as he might do in a suit against the county, we need not determine; he clearly could have intervened, in the character of a taxpayer, under the act of March 23, 1877 (P. L. 20), which expressly embraces poor districts. And such intervention might have

4. When this judgment, so standing unimpeached, was presented to the controller for audit, he was, in his character as auditor of the accounts of the directors of the poor, concluded thereby, and he did not have discretionary power, while allowing the judg ment to remain (as did all the other taxpay ers of the county) unimpeached by direct attack, to refuse to countersign a warrant issued by the county commissioners upon a requisition by the directors of the poor, for the purpose of enabling the latter to make payment of the judgment.

The demurrer was sustained and a per-
emptory writ awarded. Defendant appealed.
Argued before BROWN, C. J., and STEW-
ART, MOSCHZISKER, FRAZER,
LING, SIMPSON, and KEPHART, JJ.

WAL

R. H. Meloy and A. E. Donnan, Co. Sol., both of Washington, Pa., for appellant. Harry A. Jones, of Washington, Pa., for appellees.

PER CURIAM. This judgment is affirmed on the four legal conclusions of the learned court below, in pursuance of which it awarded the writ of mandamus. Judgment affirmed.