tled doctrine of equity. Thus, in Whipple | v. Fair Haven, 63 Vt. 221, 21 Atl. 533, it is said to be a familiar rule that, when the court of chancery has jurisdiction of a case for one purpose, it will retain it for all other purposes, and dispose of the whole matter. In Enright v. Amsden, 70 Vt. 183, 40 Atl. 37, as the court had jurisdiction to enjoin the action at law in the bill mentioned, it retained the case to be dealt with according to the practice of the court. And this will be done though the injunction covers only part of the controversy (1 Pom. Eq. [10th Ed.] 236); and though purely legal rights have to be established, and legal remedies granted, that would otherwise be beyond the scope of equitable jurisdiction (Id. § 181). The actions herein enjoined are three, commenced the same day, and after the settlement contract was made. One is trover in favor of Cate against the orators to recover, the report says, for a quantity of lumber and other personal property of the alleged value of $500, all of which was a part and grew out of the matters and things embraced in the contract under which the business was carried on down to the time Cate retired therefrom in the fall of 1903, and was included in the settlement contract. That case has been twice tried in the county court with varying results, and such proceedings have been had therein that the ad damnum has been raised, first to $5,000, and then to $12,000, where it now stands. Another of said actions is assumpsit in favor of Cate against the orators to recover $10,000 for lumber sold and money collected by the orators during the continuance of said business between the parties, and involves only matters and things embraced therein. The other action is trover by Cate and the defendant Towne against the orators, in which Towne's interest grew out of the fact that he was lessee of a farm owned by Cate and mortgaged to the orators, and was in possession as such lessee of certain personal property on the farm before and at the time the settlement contract was made. It is found that his interest in said farm and property was a part of the business in which the orators and Cate were engaged as aforesaid. It is clear that Cate, his attorneys and agents, should be perpetually enjoined from further prosecuting said actions at law brought in his name alone, and from commencing any other actions or suits at law or in equity, or instituting any other proceedings, against the orators or either of them, or against those claiming under them or either of them, to recover for or on account of the matters and things sought to be recovered for in said actions or any part thereof; and, further, that it should be adjudged and decreed that said matters and things, and each and every thereof, have been and are finally and conclusively settled and discharged as between the orators and Cate. But said action in which Towne and Cate are coplaintiffs stands different. The report does not specify the property sued for therein; but the bill shows that it is fifteen cows, one horse, and one separator, of the alleged value of $1,000. Nor does the report specify the terms of Towne's holding; but, as his interest and possession existed before and at the time the settlement contract was made, it cannot be said from what appears that Cate had authority to deprive him of his interest under the lease, whatever it was, by any settlement he could make with the orators. Nor can we presume in favor of the decree that the chancellor inferred such authority from facts found, for there are none that would justify'such an inference. It cannot be held, therefore, that the matters and things involved in that action have been settled as to Towne, and so he should be allowed to prosecute therefor in this suit, but only according to his own right and for his own benefit, and not at all under Cate's right and for his benefit, for as to him said matters and things should be adjudged and decreed to have been and to be fully and conclusively settled and discharged as between him and the orators; and both he and Towne, their and each of their attorneys and agents, should be perpetually enjoined from further prosecuting said action at law. [26] As to costs in the actions at law, the orators should pay them after the first term, and recover them only up to and including that term, for they should have resorted to chancery sooner. Enright v. Amsden, 70 Vt. 183, 40 Atl. 37. [27] The bill should be dismissed as to Mrs. Cate, with costs both here and below, those below being awarded here, as no show of reason appears why she should not have them. Doty v. Village of Johnson, 84 Vt. 15, 77 Atl. 866. Reversed and remanded with mandate. On Motion for Rehearing. The foregoing judgment was announced at the October term, 1911, but the case was held at the suggestion of Mrs. Cate's counsel that she might want to move for a reargument; and at the November term, 1911, she did so move, and briefs and informal suggestions were subsequently submitted and have been considered. [28] The only ground of the motion that is worth mentioning is that she gave up her homestead to the orators upon the terms set forth in the contract of settlement and no others, including the rights and the lack of restrictions given to her husband therein as well as the rights given to her; that she as well as he was in fact to profit by them; that one consideration of her giving up her homestead was that the husband was to have the unrestricted right to avail himself of said contract as written, and that she would not have given up her homestead had she known that he was not to have that right, nor even had she known that he had voluntarily re-occasion to use other water than that on his linquished it in the manner shown in the premises, it is competent to show how and chancellor's report, for she was in fact to the purpose for which he had previously used where he was compelled to obtain water for profit by that right as well as he; and that the spring. to restrain that right as proposed would in effect reform the contract as to her by taking from her for a private purpose, without her consent, a part of the consideration to which she is entitled, and make a new contract for her to which she never agreed and does not now agree, which is contrary to the Constitution. [29] But, as said in the motion, this is not a new question in the case, for it was made in her brief at the January term, 1911. But the court did not pass upon it, not, however, through inadvertence, as the motion assumes, but because there was no finding concerning it. Mrs. Cate not even having been a witness before the chancellor, as he says in his report, and therefore there was no basis for its consideration. And further, we now notice what we did not have in mind then, and what our attention has never been called to by counsel, that the matter is wholly dehors the record, for neither of Cate's answers make any allusion to it, the last of which was filed before Mrs. Cate was brought into the case as a party, and when she came in she adopted his answers as her answer, and his answers denied that said contract set [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 807; Dec. Dig. § 298.*] 3. EMINENT_DOMAIN (§ 296*)-PROCEEDINGS TO TAKE PROPERTY AND ASSESS COMPENSATION-ADMISSIBILITY OF EVIDENCE. In a proceeding against a railroad for damages for the appropriation of land, the plaintiff may show the manner in which the railroad was constructed through his land. Domain, Cent. Dig. §§ 804-806; Dec. Dig. [Ed. Note.-For other cases, see Eminent 296.*] 4. TRIAL ( 89*)-RECEPTION OF EVIDENCESTRIKING OUT TESTIMONY. In a proceeding against a railroad to rethe refusal to strike out the entire testimony cover damages for the appropriation of land, of a competent witness, who estimated the difference between the market value of the land before and after the appropriation, was not error, though he took into consideration certain elements of damage which he should not have considered, and, after being instructed to eliminate the improper matter, testified that he would not reduce the damages on that account. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 228-234; Dec. Dig. § 89.*] Appeal from Court of Common Pleas, Lawrence County. Action by Katherine Weinschenk, execu tled, or was intended to settle, anything oth-trix of George G. Weinschenk, against the er than what its terms imply when construed according to law, but set up no defense of this sort. This being so, Mrs. Cate cannot avail herself of it now as a ground for reargument, for a defendant, when he makes defense by way of answer, must set up all the various grounds of defense upon which he intends to rely. Warren v. Warren, 30 Vt. 530; White v. Amsden, 67 Vt. 1, 13, 30 Atl 972; 2 Dan. Ch. Pl. & Pr. 814. Western Allegheny Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed. At the trial, while the witness Henry Weinschenk was on the stand, the following questions were asked: "Q. Did it have a value in addition to the use that had already been made of it? A. Well, that is all the value of it-that is all the use; but, of course, we could have made other uses of it. Motion denied. Let the mandate go down. Q. What other uses would it have had? (233 Pa. 442). (Objected to as incompetent and immaterial.) The Court: We will allow the witness to Istate what other uses the spring reasonably WEINSCHENK v. WESTERN ALLEGHENY could be put to, considering the character of R. CO. (Supreme Court of Pennsylvania. Jan. 2, 1912.) 1. EMINENT DOMAIN (§ 298*)-PROCEEDINGS TO TAKE PROPERTY AND ASSESS COMPENSATION-ADMISSIBILITY OF EVIDENCE. en In a proceeding to recover damages of a railroad company for the appropriation of land which contained a spring, which was diverted by the company, the plaintiff may show any and every purpose for which the water could reasonably be utilized by the owner as hancing the market value of the premises; it being immaterial whether the spring had previously been used for any specific purpose. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. 807; Dec. Dig. § 298.*] 2. EMINENT DOMAIN (§ 298*)-PROCEEDINGS TO TAKE PROPERTY AND ASSESS COMPENSATION-ADMISSIBILITY OF EVIDENCE. In a proceeding against a railroad to recover damages for the appropriation of land containing a spring, where, prior to the obstruction of the spring, the plaintiff had no A. the land and the purposes for which it was Counsel for plaintiff propose to show that, | along the road, to stop work and watch that this particular spring having been taken, train for a few minutes. Q. And you inplaintiff has been compelled to go outside of clude that in your estimate of $5,000? A. the premises for water for garden and all Yes, sir; I did. Q. Do you also include in other purposes on the land. Objected to as that the possibility or probability of having incompetent and immaterial.) The Court: the crossings stopped by trains crossing? The witness may answer, and an exception A. The annoyance caused by that; yes, sir." sealed for the defendant. A. Well, the spring that is located on the Sweikert farm. Q. And not on these lands? A. No, sir. Q. And it is not on this land, that spring? A. No, sir." F. E. Alborn was asked these questions: "Q. What was this land worth just prior to the time the railroad entered and appropriated this land? A. Well, for the purpose it was used- Q. What was it worth on the market? A. About $500 per acre. Q. And, taking into consideration, Mr. Alborn, the fact that the railroad company went there and went through the center of it from north to south, and took a strip of ground 100 feet wide, containing 2.59 acres, in the manner in which the roadway is constructed, and for the purpose of operating a railroad thereon the full width of 100 feet, or the full width of the right of way, what, in your opinion, would be the market value of that land afterwards? (Objected to as being incompetent and irrelevant; the question of the manner in which the railroad bed was constructed is not an element to assess damages by. Question read at suggestion of court.) The Court: The witness may answer, and an exception is sealed for defendant. A. About half." C. B. Reno was asked these questions: "Q. What was the market value of this land as a whole affected by the taking of the land and the operation of the railroad upon it? A. Well, from a third to a half. Q. What would you say that was? A. In dollars? Q. Yes; for 26.12 acres, I believe, of it originally. A. I would say it was a damage to the farm of $5,000; that includes the spring, as I view it, the land taken, and the perpetual damage to the farm.” Cross-examination by Mr. Martin: "Q. What do you include in the perpetual damage to the farm, Mr. Reno? A. The annoyance from the persons operating it watching the trains going back and forward, causing delay in their work, the delay of the employés, the danger attendant to grade crossing, and things like that. Q. What else do you include in that? A. I would include the damage to growing crops by soot and smoke falling on them, necessitating loss of the stuff itself, beside the inconvenience the greater inconvenience in preparing the same for market; I would add that. Q. Anything further? A. Not further than what was stated in my direct examination, not that I think of now. Q. You say you include in that the loss of the employés doing their work? A. Yes, sir. Q. What do you mean by that? A. I mean the natural tendency of the human family, when a train is going Counsel for defendant now moves the court to strike out and withdraw from the consideration of the jury all the testimony of this witness, for the reason that he includes in his estimate of damages elements that are not proper to be included in an estimate of damages in this character of cases. "Mr. Aiken: The witness has only stated the facts in connection with the ordinary operation of a railroad. "The Court: We will permit the testimony to stand, upon the condition, however, that the witness will eliminate-and we now instruct the witness that the natural tendency of the human family to stop and look at moving objects is not a proper matter for compensation in this case. You will have to eliminate that from your estimate of damage. You can state your damage after eliminating that factor, because that is not such a factor as the jury can consider in determining the damages. "Judge Martin: We ask an exception to the ruling of the court. "The Court: You may inquire further on that point. An exception is sealed for defendant. "Mr. Aiken: Q. You have stated, Mr. Reno, that the total damage is $5,000 to this piece of land? A. Yes, sir. Q. Now, would you reduce that on account of this item being eliminated; if so, to what extent? A. I don't think I would. "Judge Martin: I now renew my request to strike out the entire testimony of this witness, on account of the fact that he has included in his testimony items that are not proper to be included in an estimate of damages in a case of this character. "The Court: I do not recall any other item he included that is not proper to consider. I cannot think of any now. We will overrule the motion and seal an exception for defendant." Verdict for plaintiff for $6,354.28 and judgment thereon. Defendant appealed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. J. Norman Martin, for appellant. Robert K. Aiken, for appellee. MESTREZAT, J. [1] The assignments allege error in the admission of certain testimony. The first assignment cannot be sustained. It was clearly competent for the plaintiff to prove, as ruled by the trial judge, what uses, other than those named by the witness, the waters of the spring could reasonably be put to, considering the character of the land and | division of the tract into different parts, so the purposes for which it was used or adapt- as to prevent the passage of persons or stock ed. The purposes for which the waters of from one part to the other, or, where the the spring could be utilized on the land, as passage is possible, the danger in making the testified by the witness, were not "mere pos- passage, and that the manner of the consibilities," as claimed by the appellant; but, struction of the road diminished the business if the witness was credible, the waters could of the plaintiff's mill. It is therefore apparbe used advantageously for the purposes for ent that the appellant's objection, covered which the land was specially adapted. It was by the third assignment, that the plaintiff competent to show the volume and character could not show the manner in which the road of the water of the spring; that it was pure was constructed through his land is not well and fit for domestic use; and that it could be taken. It is true, as argued by the appellant used by any one occupying the premises for company, that the manner of constructing gardening, especially in view of the fact that the road was to be determined by the comit appeared the owner made such use of the pany; but the plaintiff was entitled to comland. The plaintiff was entitled to show any pensation for the injury done his land by and every purpose for which the water could such construction, and the amount of the and would reasonably be utilized on the land damages was for the jury. by the owner, as it would enhance the market value of the premises. It is not a question whether the spring had previously been used for any specific purpose, but whether the owner could utilize it advantageously for such purpose in using the land for what it was reasonably adapted. [4] We cannot sustain the fourth assignment. The witness had been examined in chief at some length and had clearly disclosed his competency, and had estimated the difference between the market value of the land before and after the appropriation by the company. On cross-examination, he disclosed the fact that in making his estimate he had taken into consideration certain elements of damage which he should not have considered. The learned court directed the witness to eliminate the improper matter from his estimate of the damages, and said: "You can state your damage after eliminating that factor, because that is not such a factor as the jury can consider in determining the damages." The plaintiff's counsel then asked the witness whether, after eliminating the objectionable item, he would reduce the damages on that account, and the witness replied that he would not. The defendant's counsel did not further cross-examine the witness to ascertain his competency, but moved to strike out his entire testimony. It would have been better, possibly, if, after [3] It is true, as argued by the appellant, the court had instructed the witness, the that the measure of the plaintiff's damages | plaintiff's counsel had renewed his question, is the difference in the market price or value and permitted the witness to give the total of the entire tract of land before and after damages which he regarded the plaintiff as the appropriation by the defendant as affect- having sustained by reason of the appropriaed by the appropriation. In order, however, tion of the land. The witness, having known to ascertain the value of the land after the the land for 18 years, seeing it daily, and beappropriation, all the elements of deprecia- ing familiar with the character of the soil, tion must be considered by the jury. We the improvements made by the plaintiff's inhave held that the jury should consider any testate, and the use made by him of the burden cast upon the land by the construc- premises, was so clearly competent to estition of the railroad, the manner in which mate the damages that we are not convinced the road cuts the land, diagonally or other- that the case should be reversed because of wise, the inconvenient shape resulting from the form of the question asked by the plainthe construction of the road, the depth of tiff's counsel, especially in view of the fact excavations, and height of embankments, the that, considering all the witness' testimony, obstruction or complete interruption of ac- the answer would probably have been the cess to public or private ways, the incon- same, had the form of the question been difvenience in crossing the railroad and inter- ferent. fering with crossings already established, the [2] The contention of the appellant that the testimony complained of in the second assignment was not admissible, because it did not appear that the plaintiff was previously compelled to procure water outside the premises for the purposes for which he had formerly used the waters of the destroyed spring, cannot be sustained. Prior to the destruction of the spring by the defendant com- | pany, the plaintiff had no occasion to obtain or use other water than the water on his own premises. It was therefore competent for him to show that in the construction of its road the defendant company had interfered with or destroyed the spring, and how and where he was compelled to obtain water for the purposes for which he had previously used the waters of the spring. The judgment is affirmed. (233 Pa. 475) LEONARD et al. v. LEISTER et al. (Supreme Court of Pennsylvania. Jan. 2, 1912.) WILLS (8 608*)—ConstructION-NATURE or ESTATE. Testatrix devised to "my youngest son and to his heirs" certain real estate, "to hold to him * and to his heirs after him forever. I order that he has no power or right to sell" such land, as "he has only a life estate * * as I will and order the aforesaid messuage of land to his heirs at his decease." Held, that the son takes a feesimple title on testatrix's death, under the rule in Shelley's Case. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1372-1378; Dec. Dig. § 608.*] a life estate, and that after his death it. would go to his children. On the other hand, defendants claim that under the language of the will, and under the rules of law applicable, that he (Simeon T. Leonard) took an absolute estate, a fee-simple estate, in the land, which would entitle him to convey it away, and that it did not go to his children after his death necessarily, and upon the construction to be given to this will depends what your verdict in the case should be. I may say that this case was tried in this court at a previous time, and the verdict rendered at that time, not being supported by the testimony, as the court thought, it was set aside and a new trial Appeal from Court of Common Pleas, But- directed; but, inasmuch as the case turns, ler County. Action by W. E. Leonard and others against Frank Leister and others. Judgment for defendants, and plaintiffs appeal. Affirmed. Galbreath, P: J., charged the jury as fol lows: "This is an action of ejectment brought by the plaintiffs against the defendants for the recovery of a tract of land situated in Parker township, this county. Ejectment is an action which is brought for the recovery of real estate which the plaintiffs claim they are entitled to possession of, but which is in possession of some one else. as we think, necessarily upon the construction of this will, it will be a matter for the court to direct what the verdict of the jury should be, because the construction of the will is a matter for the court, and not for the jury. claiming that it belongs to them, their position being that their father simply had a life estate in the land. "Now, the present plaintiffs are the children of Simeon T. Leonard, mentioned in this will. The evidence discloses that after the death of Ann Lee Leonard, her son, Simeon T. Leonard, mentioned in the will, went into possession of the land, and he conveyed it away for a valuable consideration to M. S. Adams, and made deed for it to Adams. The testimony also discloses that "In this case, the plaintiffs claim that Adams conveyed the land and it has changthis land, described in the pleadings and ed hands frequently, by sale or leases for præcipe and writ in this case, is their land, oil and gas purposes, since the time it was and not the land of the defendants. We sold to Adams, which was in 1871. So the learn from the evidence that back in 1863 children of Leonard have brought this suit this land belonged to a woman by the name | of Ann Lee Leonard, and that she was residing on the land at that time; that in that year she made a will, by which she disposed of the land in the following manner. I will read that portion of the will: 'I further give and devise to my youngest son, Simeon T. Leonard, and to his heirs, all that messuage or tenement of land which I now reside on, lying and being in Parker township, Butler county, together with all my household estate whatsoever to hold to him, the said Simeon T. Leonard, and to his heirs after him, forever. I order that Simeon T. Leonard has no power or right to sell or convey the aforesaid messuage or tenement of land away as he has only a life estate in said messuage of land, as I will and order the aforesaid messuage of land to Simeon T. Leonard's heirs at his, Simeon T. Leonard's, decease.' That, gentlemen, is the provision of the will by which Ann Lee Leonard disposed of this land, and you will observe that she does so by giving it to her son, Simeon T. Leonard. "There is a rule of law, gentlemen, which has come down to us through many generations, in fact which we inherit from England, and is older than our commonwealth, and known as the rule in Shelley's Case, which you have heard mentioned by the counsel in the argument. Under that rule, where one, by will, devises land to another and to his heirs forever, or heirs after him, the rule of law steps in and says that gives to him an absolute title or fee simple in the land, even if in the same will he undertakes to modify that by directing how the land shall be enjoyed, or that it shall not be conveyed away by the first taker. The rule of law is inexorable, and says that the first taker will take a fee simple in the land, and may convey it away. 'I "With that explanation, I will call your attention to the language of the will: further give and devise to my youngest son, Simeon T. Leonard, and to his heirs, all "On the part of plaintiffs in this case, it that messuage or tenement of land which is claimed that under this will Simeon T. I now reside on, lying and being in Parker Leonard did not take an absolute estate or township, Butler county, together with all fee-simple title to this land, but only took my household estate whatsoever to hold to *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 82 A.-48 |