cree therefor, and the siding was built at af the cause of action set forth in the plaincost of $969, which plaintiff paid the lessee, tiff's statement. Answer: Refused. the lessor having nothing to do with the agreement nor with the construction of the siding, and there being no evidence that any demand had been made by plaintiff on the lessor for the construction of sidings, the plaintiff had no right of action against the lessor for any

amount whatever.

[Ed. Note. For other cases, see Railroads, Cent. Dig. 88 423-433; Dec. Dig. § 134.*] Mestrezat, J., dissenting.

Appeal from Court of Common Pleas, Cum

berland County.

Reversed.

"(5) The defendant is not liable to the plaintiff in this action for all or any part of the cost of the installation of the siding in connection with her land by the Philadelphia & Reading Railway Company. Answer: The siding does not connect land of the plaintiff with the Philadelphia & Reading Railway Company, but with the Philadelphia, Harrisburg & Pittsburg Railroad Company. If

the jury find that there was an unlawful discrimination by the defendant, under the evidence, the plaintiff may recover for the additional cost of the siding put in in 1908 and paid for by her above that which it

would have cost to construct a similar one

Action of trespass by Margaret Moser against the Philadelphia, Harrisburg & Pittsburg Railroad Company for discrimination in the matter of siding facilities. From a judgment for plaintiff, defendant appeals. in 1906, when she applied for the same. "(6) The evidence in this case shows that From the record, it appeared that on Oc-all and every application or demand made by tober 15, 1890, the defendant, the Philadel- the plaintiff for the installation of a siding phia, Harrisburg & Pittsburg Railroad Com- in connection with her land was made to pany, leased its railroad, extending from the Philadelphia & Reading Railway ComHarrisburg to Shippensburg, to the Phil- pany, and that the cost of the installation adelphia & Reading Railway Company for of that portion of the siding on defendant's the term of 999 years, and "also agreed to right of way was paid to the said Philadellease to the said lessee all railroads here- phia & Reading Railway Company, and that after by it acquired." The lessee thereafter no portion of the same was paid by her to operated the road. On April 17, 1905, the the defendant company. Answer: We say plaintiff, Margaret Moser, was the owner it was immaterial to whom the plaintiff paid of a tract of land containing deposits of the money for the construction of the siding. limestone with opened quarries and kilns, The question is: How much did she pay; built for the manufacturing of lime. On the how much did it cost; and was that cost in date mentioned, Miss Moser purchased a excess of what it could have been constructtract of land between the limestone land and ed for in 1906? The record in the bill in the railroad right of way. In 1906, the equity shows that the present defendant was plaintiff filed a bill in equity, both against in default in not putting in the siding. the lessee and the lessor railroads, to compel the construction of a siding, and a decree was entered in her favor, directing the defendants to build the siding demanded. The bill also claimed damages under the act of June 4, 1883 (P. L. 72), but the court declined to award damages. In 1908, the present action was brought against the lessor company alone to recover damages for an alleged unreasonable discrimination. The evidence also showed that a siding was constructed for the defendant by the lessee company in 1908, and that the plaintiff voluntarily paid therefor the sum of $969.08. This siding was built in May, 1908, and paid for on June 5, 1908.

"(7) The defendant is not liable to the plaintiff in this action for treble damages, under the act of June 4, 1883, for any injury which may have been suffered by her on account of the failure or refusal of the lessee of the defendant railroad to install the siding involved in this case. Answer: We leave to the jury to determine whether there was an unlawful discrimination on part of the defendant. If they so find, treble damages may be given.

"(8) The plaintiff has failed in this case to show by any clear or definite proof the amount of damages, if any, she may have suffered by reason of the noninstallation of a siding in connection with her land as

The defendant presented the following would entitle her to recover treble damages points: under the act of June 4, 1883. Answer: Refused.

"(2) The evidence in this case failed to show that any application was ever made by the plaintiff or her agents to the defendant for the installation of a siding in connection with her land. Answer: In the light of the record of the bill in equity filed to No. 4, October term, 1906, and the findings of fact and conclusions of law, and the decree, the point is refused."

"(4) The defendant is not liable to the plaintiff in this action for or on account of

"(9) Any right that the plaintiff may have to the recovery of all or any portion of the cost of the installation of the siding upon the defendant's land, and the connection of the same with that portion of the siding upon her land, must be enforced by a proper application to the court of common pleas of Cumberland county, sitting in equity, in the suit filed to No. 4, October term, 1906. Answer: The greater portion of the damages

Phila. 608; Wood v. Railroad, 8 Phila. 94; | before the lease, and which remained undisVan Steuben v. Railroad, 178 Pa. 367, 35 Atl. charged, continued as an obligation of that 992, 34 L. R. A. 577; Id., 185 Pa. 300. company, from which neither lease nor stat

ed for so plain a proposition. When did the liability arise which the plaintiff is here seeking to enforce? There can be but one answer: When the discrimination was practiced. When was it practiced? To this, also, there can be but one answer: When plaintiff was denied facility which, under like conditions, had been allowed to others. This was 15 years after the defendant company had parted with the control of its road. How, then, could liability attach to the defendant company for the default?

But under valid leases, there is a distinc-ute could discharge it. No authority is needtion between discrimination in operation and discrimination in construction. Though the lessee only be liable for the former, the lessor is liable for the latter. When charter, statute, or contract imposes requirements as to matters of construction, they are imposed upon the owner, and liability for nonperformance of these duties cannot be shifted by a lease. St. Louis, etc., R. R. Co. v. Curl, 28 Kan. 622: 44 L. R. A. 737, note; Noyes on Intercorporate Relations, §§ 216 and 217. But the discrimination in question was the joint act of lessor and lessee. The decree in equity rendered this res judicata. The act of the lessee is imputable to the lessor, because the acts of each of two joint wrongdoers is the act of the other. Whether they be strangers or landlord and tenant is immaterial. Admissions and refusals by the lessee bind the lessor.

[2] The effort of appellee is to refer the default to an antecedent original obligation resting on the defendant company to allow siding privileges to adjoining landowners. We know of no such antecedent obligation. The right to siding connection as specific privilege is purely statutory. Under our acts of assembly, the owners of mills and manufactories may of right connect their private STEWART, J. The judgment in this case sidings with railroads in their vicinity. So can be sustained only as it can be made to much was decided in Pittsburg & Lake Erie appear that liability for the injury complain- | R. R. Co. v. Robinson, 95 Pa. 426. The right ed of attached to the defendant company there spoken of, it is to be observed, is not prior to the lease of its road to the operating a right incident to adjoining ownership, but company. The action was for the recovery of damages for undue and unreasonable discrimination in the matter of furnishing facilities for transportation. The appellee not only admits that the action was based on the statute of June 4, 1883 (P. L. 72), which prohibits such discrimination and allows recovery of triple damages for any violation, but insists upon it, in view of the contention made by appellant to the contrary. Without this, it is too apparent for argument that the action was so based, and there can be no question as to the sufficiency of the declaration for that purpose. That appellee was unduly and unreasonably discriminated against by the refusal of siding privileges, which, under similar conditions, had been allowed to others is a fact established by the verdict.

to the ownership of mills and manufactories in the vicinity of the railroad; and the right is given whenever such ownership has associated with it the right, however acquired, whether through ownership of all the land between mill or manufactory and the railroad, or by privilege, through grant, license, or otherwise of an intervening owner, to construct a siding from the mill or manufactory up to the line of the railroad. The one test is the right of ownership of the mill or manufactory and, with it, the right to construct a siding therefrom to the line of the railroad. When these concur, the right to the connection follows. Mere ownership of land adjoining a railroad, without more, confers no such right as here claimed. The plaintiff only acquired the right to build a [1] The governing question, however, re- siding up to the line of defendant's right of mains, Where did legal liability for the in- way in 1905, when she purchased the land jury attach? The defendant had construct- lying between her land on which were her ed its road long before the plaintiff became quarries and lime kilns and the defendant's an adjoining landowner. Five years before right of way; and not until then was she in she became such owner, the defendant compa- position to demand, under the statute, a conny, in the exercise of a statutory right, leased nection with the railroad. That, as we have its entire road to the Philadelphia & Reading seen, was 15 years after the defendant comRailway Company, which latter company has pany had leased its road. Clearly the railever since continued to operate it. It is set- road company owed no antecedent statutory tled law in Pennsylvania that, when a rail- duty to the plaintiff in this regard. Nor did road company leases its road to another com- it owe any original duty distinguishable from pany, the former is exempted from liability the original duty it owed to every citizen of for any default or negligence in the opera- the commonwealth. All such duties, by the tion of the road by the lessee. Pinkerton v. act of leasing, devolved upon the defendPennsylvania Traction Co. et al., 193 Pa. 229, ant's lessee. Corporate liability for disre44 Atl. 284. This exemption, of course, does gard of them attaches, of course; but it atnot extend to liabilities incurred by the own-taches only to the company that inflicts the ing company prior to the lease. Whatever injury. An examination of the case of Chi

sail. She obtained against the lessee the
decree which compelled it to build the siding
across the railroad's right of way to her land
solely on the ground that it was lessee,
and she reimbursed the lessee for the cost
and expense of constructing the siding, as
she was directed by the terms of the de-
cree. She is now concluded by these facts
from asserting the invalidity of the lease.
"It is settled law," says Trunkey, J., in
McQueen's Appeal, 104 Pa. 595, 49 Am. Rep.
592, "that a man who obtains or defeats a
judgment by pleading or representing an act
in one aspect will be precluded from giving
it a different and inconsistent character in a
subsequent suit upon the same subject." To
the same effect will be found Campbell v.
Stephens, 66 Pa. 314; Aronson v. Cleveland
& P. R. R. Co., 70 Pa. 68. The general rule
in such cases is thus stated in 16 Cyc. 799:
"A claim or position taken in a former ac-
tion or judicial proceeding will estop the par-
ty to make an inconsistent claim or to take
a conflicting position in a subsequent action
or judicial proceeding to the prejudice of the
adverse party, where the parties are the
same, and the same questions are involved."
The plaintiff thus being estopped from ques-
tioning the validity of the lease, discussion
raised is wholly unnecessary.
on our part of the matter here sought to be

424, 5 Sup. Ct. 578, 28 L. Ed. 1064, cited and relied upon by appellee's counsel, will show that it gives no support whatever to their contention in this regard. There the original company had engaged, for a consideration paid it, to construct its road to a point within a certain township. After building its road conformably to the agreement, it leased it to another company which, in reconstructing the road, avoided the point designated in the agreement. At the suit of a taxpayer of the township against both lessor and lessor, it was held that the change in the road had been improperly made, and that the lessee was a necessary party for the determination of the controversy, because it had incurred whatever liability there was before it leased the road. We are unable to see anything in the case now before us that this case illustrates in the remotest degree. Admittedly there was a distinct, express agreement, for a consideration which the lessor company had received, to maintain the line to a certain point, and this agreement antedated the lease. In the present case, there never was any agreement, and the duty arose only after the defendant had leased its road. Without agreement to be observed, and without duty to be performed, no liability could arise. The only original duty that rested on the original company in this regard was the duty to treat all citizens of the commonwealth alike with respect to transportation facilities. Quite as much of an antecedent duty rested upon the lessor to see that all were treated alike with respect to rates of transportation; and yet appellee concedes that for discrimination in rates the lessee alone is liable. It is difficult to understand the logic that would ex-spect to furnishing plaintiff with siding privempt the lessor in the one case and make it liable in the other.

[4] In support of the judgment, it is contended that appellant is estopped by the decree in the earlier equity proceeding from asserting its nonliability in the present aetion for damages for unfair discrimination, inasmuch as by that decree the defendant company was adjudged in default with re

ileges. It is undoubtedly a general rule that, where, in an equity proceeding, the [3] It is argued that, even though the ef- merits, or any facts material to the final fect of a lease from one railroad to another determination of the controversy, have been is to exempt the owning company from lia- considered and passed upon, such matters bility for discrimination in transportation are as much res adjudicata as they would facilities, the rule cannot be applied in the be by a judgment at law. Nevertheless a present case, because here the roads of les- certain distinction between a decree in equity sor and lessee were not in fact connecting and a judgment at law remains; for, as said roads at the time the lease was executed, in Larkins v. Lindsay, 205 Pa. 534, 55 Atl. and the lease therefore was invalid, since the 184, in determining what was or might have statute gives the right to lease only where been involved in the decree, regard must be the roads connect. In what has already been had to the reasons of the chancellor, as well said, no reference is made to the fact of an as to his decree. In the equity proceeding, earlier equity proceeding, in which this plain- the Philadelphia, Harrisburg & Pittsburg tiff sought and obtained a mandatory injunc- Railroad Company, the lessor company, was tion against both the defendant company and made codefendant with the Philadelphia & the Philadelphia & Reading Railway Com- Reading Railway Company, the lessee. The pany, as the former's lessee, requiring them facts material to the final determination in and each of them to do the very thing for the case must be gained from an examination the nondoing of which the present action of the decree. It was as follows: “And now, against lessor was brought, and which has 23d day of August 1907, it is adjudged, orsince been done by the Philadelphia & Read-dered, and decreed that the defendant the ing Railway Company, pursuant to the de- Philadelphia, Harrisburg & Pittsburg R. R. cree against it, obtained at the instance of the plaintiff. The claim there made by the plaintiff was a distinct assertion of the va

Co. and the Philadelphia & Reading Railway Co. shall and do proceed, without further delay, forthwith to place in position and con

lishing the fact that complainant, some time or other before filing her bill, had made a demand of this defendant. As to this latter fact, the decree is conclusive, since without it appearing the decree would hardly have been entered; but as to the time when the first demand was made the finding is incidental, because not entering into the decree.

[6] In the present action, two items of damage were claimed; the first being the excess in cost which plaintiff was obliged to pay for the transportation by wagons of the coal she required during the two years next preceding the construction of the siding, amounting to $168.68. No effort was made to show that any demand at any time had been made of this defendant for the construction of

adjoining land of the complainant, a switch-was left without relevancy, except as estabing or siding connection, and lay tracks therefrom across its right of way to the border of her land, in order that it may be connected with a siding to be constructed by said Margaret Moser, the complainant in the bill, and she is hereby authorized to connect her track with the said switching or siding connection. The cost price of the switching, frogs, necessary rails, and other material requisite, and the expense of putting them in place by the defendants, to be paid by the plaintiff." All that was required to support such decree was that plaintiff should have established, to the satisfaction of the chancellor, that she was the owner of a mill or manufactory in the vicinity of the railroad; that the connection she asked for was reasonably practicable; and that her request the siding, aside from the introduction of for the privilege had been refused. These were the only material facts, and all outside of them, no matter how specifically passed upon by the chancellor, were only incidentally cognizable, and as to these estoppel cannot be asserted. "The judgment of a court of concurrent jurisdiction directly upon the point is, as a plea, a bar, or, as evidence, conclusive between the same parties on the same matter directly in question in another court. But neither the judgment of a court of concurrent nor exclusive jurisdiction is evidence of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment." This rule, derived from the Duchess of Kingston's Case, has been accepted and applied in this state without qualification. Hibshman v. Dulleban, 4 Watts, 183.

the findings of the court in the equity proceedings, saving that plaintiff's desire for a siding had been communicated to Mr. Wetzell, who, it appears, was the legal counsel of both railroads. If the finding did not conclude the defendant in this subsequent action, then it was no evidence of the fact sought to be established thereby, viz., that defendant company had neglected or refused a siding upon demand made before or during the period when this item of damage is alleged to have been sustained; and it was incumbent on the plaintiff to establish such fact by competent evidence. We have examined the evidence with care and find nothing in it that would justify an inference that any request for a siding was ever made of this defendant. That the learned trial judge in submitting to the jury this branch of the case relied wholly upon the findings in the equity case is apparent from his answer to the defendant's second point, which was, "That the evidence in the case fails to show that any application was ever made by the plaintiff or her agents to the defendant for the installation of a siding in connection with her land." The answer was: "In the light of the record of the bill in equity filed in No. 4, October term, 1906, and the findings of fact and conclusions of law, and the decree, the point is refused." This answer is the subject of the first assignment of error. The point should have been affirmed. This assignment, for the reasons stated, is sustained.

[5] The particular finding by the chancellor in the equity proceeding that is here relied upon as an estoppel is the affirmation of the following request, submitted on part of complainant: "That frequent and persistent demands, covering a period of more than two years, were made by the complainant, and on her behalf, upon the defendants for a switch connection or siding to be constructed on her 26-acre tract, adjoining the right of way of defendants, for use in her business," etc. Here we have a finding that for two years before the case was tried the complainant had been repeatedly and persistently demanding of this defendant a siding connection-a matter of no consequence whatever in the issue then being tried, since The other item of damage claimed was all that was necessary to support the decree the increased cost of the siding that was entered in the case was that the defendant, finally constructed over and above what it without respect to the time it occurred, had could have been constructed for two years neglected or refused to accede to complain- previous, when the first demand for it is alant's demand. If there was evidence to sup- leged to have been made. It was in evidence port such finding as this in that case, it is that in 1906 the Philadelphia & Reading manifest that it was introduced, not for the Railway Company had submitted to the purpose of establishing complainant's right plaintiff an estimate of the cost of a proto a siding, but for the purpose of recovering posed siding; that estimate being $400. It damages covering this period of two years was further in evidence that for the siding during which complainant was denied the constructed in 1908, the plaintiff paid to the siding. But the court having declined to Philadelphia & Reading Railway Company