31 Pa. 387 | Pa. | 1858
The opinion of the court was delivered by
The heirs of Jonathan Pusey, deceased, were substituted as plaintiffs in this case, the bill having been filed in his lifetime.
The bill sets forth that an agreement was entered into between Jonathan Pusey and the defendants, by which the former granted to the latter a right to construct a private railroad through his property in the borough of Columbia, consisting of a lot of about seven
In answer to the bill, the respondents admit that they constructed .their road on and over the property and premises of the plaintiffs, under a contract with the said Jonathan Pusey, and license by him to do so. That the agreement was entered into after application made to the Court of Common Pleas of Lancaster county, to obtain the right of way through the said premises under the laws of this Commonwealth, and upon the solicitation and suggestion of the said Pusey, that there was no necessity for such proceedings, as they could amicably agree therefor; that the road was and is located and constructed in strict conformity with the agreement. That the said Jonathan Pusey saw and knew of the location and construction of the road, and that no objection was made to the location and construction by him or his agent present, until after the work had so far progressed as to be ready for the rails. They further admit that damages to the premises were to be compensated upon the award or assessment of three men to be chosen for that purpose by the parties, and aver their readiness and willingness now and at all times to unite with complainants in making choice of them, and to pay what may be awarded by them; but they positively deny the existence of any of the other covenants or
The issue being thus made, the complainants introduce evidence on the subject of the injury done the property by the construction of the road. They now complain and assign for error, the rejection of the testimony of John Cooper, which they say tended to prove their case. But this is not apparent. He was not present at any bargain between the parties, but speaks of declarations of Jonathan Pusey only, on this point. His testimony was chiefly as to the injury to the premises, and damages. But being a party plaintiff on record, as guardian, and there being no order first had for his examination as a witness, the court decided that he was liable for costs, and his transfer of the trust to his ward, who had arrived at age, did not discharge him from liability; that he was therefore incompetent, and accordingly rejected his testimony, as they did that of Thomas S. Richards, a witness for the respondents. There was no error in this ruling.
In the opinion of the Court of Common Pleas the case stood simply on bill and answer, and as the onus probandi rested upon the plaintiffs, and as they had not made proof of the contract as averred, they were not entitled to a decree. They also ruled upon the merits, against them. There is no difference in respect to the burden of proof between proceedings at law and in equity; in both, the party maintaining the affirmative of the issue has it cast upon him. In this case, the plaintiff set up a contract with the defendants, by which permission was given to construct the road in dispute, and in which it was averred that the latter undertook to do certain things, which, it is alleged, they did not do, and for a violation of the contract in not doing, and for relief, this bill was brought. The defendants admit the contract for permission to construct the road, and deny the conditions and stipulations alleged by plaintiffs, the non-performance of which constitutes their ground of complaint. Standing thus, no doubt can exist but the plaintiffs were bound to prove their case. The grounds upon which they rested for relief, were denied. It is plain, therefore, that they must be proved, or their title to relief must fail. And against the responsive denial of defendants, this would, according to the practice in equity, require two witnesses, or one, and strong corroborating circumstances: Story’s Eq. Pl., § 49; Eberly v. Groff, 9 Harris 251; 3 Greenl. Ev., §§ 285, 287.
But it is contended, that the defendants set up a contract different from that charged in the bill, and that their answer' is a confession and avoidance. We do not think so. The answer admits the contract for right of way, and agreement to pay damages upon the assessment of men to be chosen, and avers the building of the
The entire evidence before the court related to the damage alleged to have followed from the construction of the road. We recollect none sustaining the plaintiffs’ allegation of the terms of the contract. They therefore failed to make1 out a case for a decree, if otherwise entitled.
It seems to me that, independently of the question just discussed, and for argument’s sake, considering that point as standing in favor of the plaintiff, that the case was one for compensation at law, and not to be remedied by injunction to enforce abatement of the road as a nuisance, or the perpetual restraint of its use. It was constructed under a contract, as admitted by both parties, with a stipulation to pay damages for consequent injury, and with a tribunal
It becomes unnecessary further to notice the assignments of error in this case, and for the reasons given the decree of the Common Pleas is , Affirmed at the costs of appellant.