[Whitaker v. Delaware and Hudson Canal Co.]

"That the said company shall not erect any works, or make any improvement, connected with the Delaware river, unless the same shall be so constructed as to leave the channel of said river as safe and as convenient for the descent of rafts as it now is." The plaintiff complains that the river is not as safe and convenient for navigation as before the erection of the dam. Unquestionably this is so. A dam in a stream is an impediment and in some degree renders its navigation less safe and convenient. A literal construc

tion of this provision makes it impossible to build and maintain the dam, and the conceded right vanishes. The statutes of this state, recognising those of New York, and in connection therewith, conferring the power to construct a great public highway, are nugatory under a strict construction of the section providing for safe and convenient navigation of the river. This was not the legislative intent. It could not have been intended to grant a franchise to build a public highway, in connection with one in a sister state, and so clog it that the work could never be executed.

Various statutes, from time to time, have been enacted authorizing public improvements, some of which would obstruct or impede the navigation of rivers, and others the use of streets and roads, which contained provisions forbidding such obstructions and impediments. The courts have uniformly held that these provisions should be liberally construed, so as not to destroy the grant. For instance, the act of incorporation of the Monongahela Bridge Company contained a declaration that nothing therein contained should authorize the erection of a bridge over the Monongahela river "in such manner as to injure, stop, or interrupt the navigation of the said river, by boats, rafts or other vessels." It was held that the proviso was not intended to prevent the erection of piers in the bed of the river, yet piers in the bed of a navigable stream inevitably endanger navigation and render it more difficult. They do not necessarily injure, stop or interrupt the navigation" in the sense in which these words were used by the legislature. A strict literal meaning was not intended, and in the very nature of things, it never could have been. When the purpose of the franchise is the performance of a public act, the grant is to be so interpreted as to enable the act to be done. The extension of one highway over another is a public act, and not less so because of the power to exact tolls: Monongahela Bridge Co. v. Kirk, 10 Wright 112. The charter of the Erie and North East Railroad Company had a provision that "The said railroad shall be so constructed as not to impede or obstruct the free use of any public road, street, lane or bridge now laid out, opened or built." "These words taken literally and in their strongest sense would prevent the railroad from being made on the streets at all. But we follow authority in saying they are not to be so interpreted. The defendants have a right to use a street if they take care to obstruct it as little as the nature and char

[Whitaker v. Delaware and Hudson Canal Co.]

acter of their improvement will permit, if they create no material or unnecessary impediment-no obstruction which could be avoided by any reasonable expenditure of money or labor. They cannot occupy the whole of a street and drive the public away from it altogether. But any street which is wide enough for the railroad and public both may be used on the terms mentioned." Per BLACK, C. J., Commonwealth v. E. & N. E. Railroad Co., 3 Casey 365.

It is no departure from the current of decisions, but in its direct line, to hold that the defendants can enjoy their franchise, can lawfully construct and maintain their dam, taking care to obstruct the channel as little as the nature and character of the improvement will permit, and leaving it as safe and convenient for the navigation of rafts as could be by any reasonable expenditure of money and labor. Their franchise is for the construction of one highway over another. The whole community are interested in both. Private charters are strictly interpreted. In them what is not expressed or necessarily implied, is not granted, and what is doubtful is resolved in favor of the sovereign. But when the sovereign grants a public franchise over a highway, a clause relative to the use of said highway will not be so construed as to defeat the grant.

The plaintiff does not claim merely for consequential damages, resulting solely from the construction of the dam. If he did, the defendants' answer would be found in Clark v. Birmingham and Pitts. Bridge Co., 5 Wright 147, and Monongahela Bridge Co. v. Kirk, supra.

He claims further for an immediate injury, consequent upon the defendants' negligence, in that they "built and left the said dam in and across said highway, in a dangerous, insecure and impassable state and condition." His averment implies much more than such obstruction as was necessary for the purposes of the franchise, and, if established, and there was no contributory negligence, his right to recover is clear. If he adduced sufficient proof of such negligence, it should have been submitted to the jury.

The evidence of the broken and damaged condition of the rafts, before reaching the dam, will not be specially noted, though that would have been important as tending to show contributory negligence, had the case been submitted.

Surrine and Lakin were steersmen on the rafts. Both had had long experience on that river, and neither ever had bad luck or stove a raft on that dam before. They agree that the water in the schute was rougher than usual, and that the water in the roll was rougher than in the schute. The injury was done in the roll. A raft ahead of them was stove to pieces at same place. Surrine says, "I think that dam is about as bad as any place we have on that river." Lakin says, 66 It was a fair freshet. The slash-boards were on the dam. They caused a tendency to draw the rafts to Jersey."

"I

[Whitaker v. Delaware aud Hudson Canal Co.]

should not call the dam very safe." "Are not the slash-boards always there, except when the water is high, on the Jersey side of the crib?" "I cannot say they wasn't." "And are they not kept there to throw water in the channel and help you over the dam? wouldn't that be the effect to throw water through the rafting channel?" "Yes, sir." Curtis, who was on the raft with Surrine, says, "I laid it to the slash-boards, which made the surges of the water, and that seemed heavy. I think the damage was done by the dam; I don't know what else could have done it. If there had not been any dam there it could not have done any injury. There is always a roll right there in a freshet." With this evidence to make out the charge of negligence, the plaintiff rested. There is no pretence that the defendants' witnesses added to its strength. The plaintiff's witnesses had been in his employ on the rafts and had ability to discover anything unusual, done or omitted by defendants, to cause the extraordinary roughness of the water. Yet careful counsel failed to point to an expression tending to show an unusual condition of the dam in reference to the stage of the water. One witness laid the unusual roll to the slash-boards, but neither he nor any other said it was uncommon for the slash-boards to be there. He was, however, correct in saying, "if the dam had not been there it could not have done any injury." But it was by no means sufficient to establish negligence to connect the injury with the dam.

The dam had been rightfully there for many years. The Commonwealth has made no complaint of abuse of the grant. In 1830 she exonerated the defendants from building the river lock in the dam until they shall be required by the legislature: Pamph. L. 407. There is no evidence of change in the dam since that date. Neither court nor jury can say a lock should have been constructed after the Commonwealth has said otherwise. Negligence will not be presumed. When the plaintiff avers that defendants have constructed and maintained their dam in violation of their statutory rights, and in such manner as not to be the least obstructive to the navigation of the river, consistent with the use of the dam for the purposes of their franchise, and by some negligent act have caused him immediate injury, the burden is on him to prove his averments. The mere fact that the rafts were injured by the dam is not enough. It falls as far short of sufficient proof as does the fact alone of the killing a horse by a railway train when crossing a street, fall short of showing negligence in the railway company. A spark, a scintilla of evidence of negligence by the defendants is here, and no more. The learned judge was right in his conclusion that the evidence was insufficient to warrant a finding that the defendants were guilty of negligence. Judgment affirmed.

Conley and Wife' versus Bentley.

1. Where judgments have been entered against a husband, his declarations that certain property belongs to his wife are inadmissible in evidence as against creditors, and should be withheld from the jury, although during the trial no objection was made to their admission.

2. A husband may make a gift to his wife or a settlement upon her, which equity will sustain as against creditors, in the absence of a fraudulent intent, and the question of such intent should be left to the determination of the jury.

3. It seems, that the 2d section of the Act of May 5th 1855, is in pari materia with the Feme Sole Trader Act of February 22d 1718. Under said section it is not necessary that there should be the decree of any court that a wife is to be regarded as a feme sole trader, to entitle her to accumulate and hold property against her husband and his creditors; the right results from proof that she has been thrown upon her own resources for support, and that her husband has deserted her or neglected to provide for her from any cause.

April 2d 1878. Before AGNEW, C. J., SHARSWOOD, Mercur, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ.

Error to the Court of Common Pleas of Wayne county: Of January Term 1878, No. 196.

Ejectment by George F. Bentley against Andrew Conley and Eliza Conley, his wife.

At the trial, on behalf of the plaintiff, two deeds were offered in evidence; one from Alonzo Bentley to Eliza Conlin, dated June 2d 1860, for one of the lots in suit; and the second, dated February 3d 1868, from Phineas Goodrich, executor of Daniel Kimble, to said Eliza Conlin, for another lot. It was admitted that Eliza Conlin was a married woman, the wife of James Conlin, deceased, at the time of the execution of these deeds of Bentley and Goodrich, and that she was, at the time of trial, the wife of Andrew Conley, the co-defendant in this action. Plaintiff also offered the record of two judgments; one entered in 1868, and one in 1870, against James Conlin, and the record of their revival after Conlin's death against his widow and administrator. Upon one of these judgments execution had issued and the plaintiff had bought the properties at sheriff's sale.

The defendant, Eliza Conley, testified that she was married to James Conlin at Poughkeepsie, N. Y., in 1848; that he remained with her only a few days, and shortly thereafter she removed to Connecticut, where she lived for some fifteen months, working a part of the time as a domestic, and at other times going out sewing; that during this period her husband visited her occasionally; that when she left Poughkeepsie she had $45 given her by her sisters; she then went to New York to live, where her husband again left her; with the money given to her by her sisters and her accumulations in Connecticut, in all $100, she started a small candy shop;

[Conley v. Bentley.]

for several months, while keeping this store, her husband lived with her, and then left her, going to Rondout, N. Y. She sold out her shop for $75, and followed him to Rondout, where she kept another store; at this time she had about $200, and it was agreed between her husband and herself that each should keep their own earnings and dispose of them as they pleased; that in 1852 they moved to Honesdale, Pennsylvania; Conlin then commenced boating on the canal, and she kept boarders, raised fowls, took in sewing and worked and traded in various ways; her husband also kept a little saloon, which she attended to; did not know what became of the proceeds of saloon; Conlin was extravagant and dissipated in his habits, and did not contribute anything to the support of his family, consisting of his wife and two children; in 1857 she contracted with Bentley for one of the lots in question, and paid him therefor in instalments, receiving a deed and recording the same in 1860; in 1863, contracted with Goodrich for the other lot, for which she received a deed in 1868, which was duly recorded; that the aggregate amount paid for these lots was $350; the deeds were made to her alone, and none of the purchase-money was received from her husband. She also testified that Conlin was not in debt when these purchases were made, and did not at the time contemplate entering into any hazardous business. Conlin knew that his wife purchased these properties, and frequently declared in the presence of witnesses that they belonged to his wife, and were purchased with her earnings. It was also shown that she made the contract for the lots herself, that she alone paid the money; that she said she wanted it fixed so that she could hold the land herself, because it was her money. It also appeared that in contracting bills for the house, they were made out and receipted in her name, and that the bills for the boarders were also so made.

In rebuttal, evidence was given to show that the note on which judgment was entered against Conlin, was given by him for lumber which was used upon the building on one of these lots, but upon cross-examination it appeared that part of it was also used in the repair of a boat of Conlin's.

Among the points submitted by the defendants were the following, to which are appended the answers of the court:

2. If the jury believe that Eliza Conley received from her relatives any portion of the money with which she paid for the property in question she holds an interest in the lands to the extent of the money so received and paid, which is good as against the purchaser at sale by the sheriff under an execution against her husband.

Ans. "We answer this in the negative, because there is no affirmative evidence to sustain it. The purchase of the land and the building thereon were several years after the receipt of the $45 from her sisters."