(110 A.)

to mine it the surface itself, which includes mer's App., 100 Pa. 182, 187, 45 Am. Rep. the highway, must be physically displaced, 373. A nuisance per se, when public in its stripped so that the coal might be taken out. character, may, upon information by the AtThe company's right to do this was subordi- torney General, or at the suit of a municinate to the right of the public to the high-pality, be enjoined. Mint Realty Co. v. Wanway. This use, encroachment, or obstruction amaker, 231 Pa. 277, 279, 79 Atl. 514. by the company was a nuisance per se, which could not be legalized unless the highway ceased to exist as such; in that event, the land reverts to the owners and its use is no longer a public one.

[3] To cause the "land" to revert, the road must be vacated in the manner provided by law, and, as public highways are within the control of the commonwealth, the statutory directions for their creation and abolishment must be followed. When counsel in this case agreed that the road should be vacated, thus permitting the coal company to continue the nuisance and the public to be deprived of the use of the highway for travel, they clearly exceeded any authority they had as attorneys and they attempted to do something which even the supervisors had no power to do; and the same may be said as to supplying the road vacated. To permit such an evasion of a legislative mandate as to highways would be to create an easy method to have important highways changed to suit the convenience of a few persons without notice to others interested who might be injured thereby. The Acts of 1836 (P. L. 555) or 1911 (P. L. 123) should have been invoked.

[6] The defendants did not acquire any right to excavate the Krebs Road for the purpose of their stripping operation because of any consent the supervisors of the township might have given, official, or otherwise. In Pennsylvania, a highway is the property of the people-not of a particular district, but of the whole state-and, when a public right has been acquired, it cannot be lost by nonuser or by municipal action not expressly authorized by law. Any occupation of the property inconsistent with the public right is a nuisance, and no length of time will legalize a public nuisance. Pittsburgh v. Epping-Carpenter Co., 194 Pa. 318, 45 Atl. 129. While laches may be imputed to the commonwealth, or its representatives, it is done only in rare cases, as stated by our present Chief Justice in Bradford v. Tel. & Teleg. Co., 206 Pa. 582, 56 Atl. 41. Under the circumstances of this case, appellants lost no right in the prosecution of this litigation. They acted under what they believed to be lawful orders of the court; but defendants will not be heard to complain of this, as they have not met the obligation assumed in the unauthorized agreement and order.

The decree of the court below is reversed, and a mandatory injunction is directed to issue as prayed for, and, owing to the peculiar circumstances caused by the orders of the first judge who heard the case, the issuance of the writ to be withheld for a period of six months, pending which time appellees may institute proper proceedings to have Krebs Road vacated and supplied, if it is thought proper so to do; or within which time the parties may, under the Act of 1911, change the location of the road as therein provided, on the conditions stated in the act, that the cost and expense should not exceed the sum of $300. This would not limit the amount re

[4, 5] The supervisors, as municipal authorities, were proper officers to ask for a compulsory mandate to redress the injury. It should not have been denied, as a clear legal right existed. Where there has been an invasion of a public right by the use, for private purposes, of that which belongs to the public, whether the injury be great or small, it is the continuing deprivation of that right which gives cause for equitable intervention to prevent the creation or the continuance of such wrongful exercise. For a broader reason should this be recognized where the injury is substantial and material, calculated not only to interfere with the right and comfort of the public as such, but possibly to the dam-spondents may decide to pay in order to acage of individuals. So it has been held that injunctions to restrain encroachments on highways, though they should be granted with care, will, when public rights are invaded, be granted. In such case no question of the amount of damages is raised, but simply the one of the invasion of a right. Rei

complish the result. If the proceedings as instituted are prosecuted with due vigor, but are uncompleted at the end of the six months, the court below, in its sound discretion, may grant a further extension of time.

The decree is reversed, at the cost of the appellees.

(Supreme Court of Pennsylvania. April 19, legatee of the capital stock of the German Na

tional Bank of Allegheny at its book value, and if said offer be not accepted and purchase Trust of bank stock to be offered for sale within thirty days after the making of such made at such book value by F. N. Hoffstot

Pa) STATE BELT ELECTRIC ST. RY. CO. v. PENNSYLVANIA UTILITIES CO. (110 A.)

Argued before BROWN, C.-J., and STEWART, MOSCHZISKER, WALLING, SIMPSON, and KEPHART, JJ.

John D. Brown and John E. Winner, both of Pittsburgh, for appellant.

Reed, Smith, Shaw & Beal and John G. Frazer, all of Pittsburgh, for appellee.

245 SIMPSON, J. On May 1, 1912, an agreement was entered into between plaintiff and the Eastern Pennsylvania Power Company (which has since been consolidated with defendant) by which certain rights and obligations were granted to and assumed by the parties; nothing being said, however, as to furnishing plaintiff with electricity for the On DePER CURIAM. [1, 2] The question on this purpose of operating its railway. appeal is whether the testator created an cember 1, 1913, after the passage of the Public Service Company Law of July 26, 1913 active trust in a bequest to the appellant, one of his daughters, of a certain number of (P. L. 1374), but before its effective date on shares of the capital stock of the German January 1, 1914, plaintiff and defendant enNational Bank of Allegheny. That he did tered into a consumer's contract, by which so, and that the trust may be terminated in defendant agreed to furnish electric current a proper way, clearly appear from the con- to plaintiff, for operative purposes, for a pecise opinion of the learned court below dis-riod of 10 years, at a rate specified therein. missing the exceptions of the appellant to the This contract does not refer to that of May adjudication of the account of the executors. 1, 1912, but plaintiff alleges part of its conNothing can be profitably added to that opin-sideration was the rights granted by the earlier agreement. ion, and, upon it, the decree is affirmed at appellant's costs.

Decree affirmed.

Because of the shortage and increased price of coal in the latter part of 1917, defendant filed with the Public Service Commission a new schedule of rates which, in due course, became effective on December 15, SLATE BELT ELECTRIC ST. RY. CO. v. 1917. Thereafter it charged plaintiff at these PENNSYLVANIA UTILITIES CO.

(267 Pa. 61)

rates, whereupon the latter filed this bill in

(Supreme Court of Pennsylvania. April 12, equity, setting forth the contract of Decem

1920.)

ber 1, 1913, and defendant's intention to cease furnishing electricity unless it was paid for at rates in excess of those agreed upon, and praying an injunction, specific performance of the contract, and general relief. The

1. Courts 475(1)—No jurisdiction to enjoin charge of alleged excessive rate pending appeal in another court from decision of Public Service Commission. Assuming that a court of equity had juris-gravamen of the complaint was, and still is, diction to maintain the status quo pending a that the new rates are ineffective as to plaindecision of the Public Service Commission, such tiff, because of the rights granted to the jurisdiction ended when the case reached the courts on appeal from the decision of the commission; the matter then being regulated by Appeal Act May 19, 1897, and by Public Service Company Law July 26, 1913 (P.L.1374). 2. Appeal and error 339 (4)-Appeal from order granting or refusing preliminary injunction must be promptly taken.

An appeal from an order granting or refusing a preliminary injunction will not be reviewed, where not taken until 12 years after the order was given.

Eastern Pennsylvania Power Company by the agreement of May 1, 1912, or at least until defendant has returned them or paid plaintiff for them. A preliminary injunction was granted on the filing of the bill, and thereafter the case was put at issue.

We are advised by appellant's history of the case, that on or about July 11, 1918, while the trial was proceeding, "the court stopped and before the completion of the testimony, the same during the progress of the hearing because he had heard enough to determine

Appeal from Court of Common Pleas, the question of jurisdiction, and that he had Northampton County.

only jurisdiction in aid of the Public Service Commission, and relegated, by order, the plaintiff to the Public Service Commission." Plaintiff apparently acquiesced in this deciion; certainly it proceeded no further with the trial, but filed its complaint with the

Action by the Slate Belt Electric Street Railway Company against the Pennsylvania Utilities Company. From orders refusing to continue a preliminary injunction, and dissolving the injunction, plaintiff appeals. Or-commission, averring the new rates were unders affirmed, and appeal dismissed.

Argued before BROWN, C. J., and STEWART, FRAZER, WALLING, and SIMPSON, JJ.

H. M. Hagerman, of Bangor, and W.
Kirkpatrick, of Easton, for appellant.
J. W. Paff, of Easton, for appellee.

reasonable, and moreover were ineffective as to it for the reasons above specified; and it also from time to time applied for and ỗbtained from the court below decrees continung the preliminary injunction until this comS. plaint could be filed and decided, and thereafter until plaintiff could perfect its appeal 1) the superior court and apply for a super

sedeas therein. After a hearing the commission dismissed the complaint, holding the new rates to be reasonable, and stated also it had no jurisdiction to consider the other questions raised by plaintiff.

From this decision plaintiff appealed to the superior court, and then moved the court of common pleas for two orders (1) continuing the injunction until final hearing, and (2) | continuing it until the superior court had decided the case. After the latter court allowed the supersedeas, the two motions were refused, and the preliminary injunction dissolved, and from these orders plaintiff now appeals to this court. Subsequently the superior court affirmed the decision of the commission, and plaintiff, at the present argument, announced its intention of applying to this court for the allowance of an appeal

therefrom.

4. Appeal and error 215(1) Error in charge not called to attention of trial court unavailable on appeal.

Inaccuracies in charge as to matters of fact which would have been corrected if called to court's attention furnish no ground for reversal, where they were not called to lower court's attention, for a party cannot sit by and take his chances of a verdict and then object.

Appeal from Court of Common Pleas, Philadelphia County.

WALLING, SIMPSON, and KEPHART, JJ.

Argued before MOSCHZISKER, FRAZER,

T. Raeburn White, of Philadelphia, for appellant.

[1, 2] Whether or not the preliminary injunction should ever have been granted or continued is not now before us; but it is clear, whatever jurisdiction a court of equity may have had to maintain the status quo Action by Albert M. Lieberman and anothpending a decision by the commission, it end-er against J. B. Colahan, 3d. From judgment ed when the case reached the courts on ap- for plaintiffs, defendant appeals. Affirmed. peal, for then the matter is regulated by the Appeal Act of May 19, 1897 (P. L. 68), and by article 6, § 9, of the Public Service Company Law of July 26, 1913 (P. L. 1374). Nor can we now say it was error to refuse to continue the injunction until the final hearing of the equity case. More than a year and a half ago the court below decided its jurisdiction was limited as above set forth. If plaintiff wished to have that decision reviewed, it could and should have had a final decree entered and therefrom taken its appeal. After this lapse of time we will not review an order granting or refusing a preliminary injunction. Gyger's Appeal, 15 Wkly. Notes Cas. 513; Drum v. Dinkelacker, 262 Pa. 392, 105

Atl. 509.

The orders of the court below are affirmed, and the appeal dismissed, at the costs of appellant.

(267 Pa. 102)

Morris Wolf, of Philadelphia, for appellees.

sion on sale of real estate. WALLING, J. This action is for commisPlaintiffs are real estate brokers, and defendant is a practicing attorney. The property known as Nos. 731-733 Arch street, Philadelphia, was owned by the First National Bank of Camden, N. J., for which defendant was attorney, and the title to the property stood in his name as trustee prior to 1918, when it was sold by the sheriff, to perfect the title, and bid in by defendant as attorney. The sheriff retained the deed with the understanding that it would be made direct to whoever might be decided upon or become the real purchaser, as the property was for sale. Meantime, plaintiff's and defendant negotiated with reference to the former, finding a purchaser for it, at the price of $75,000, when they were to receive a commission of 2 per cent., amounting to $1,500. They procured a purchaser, named Silberman, with whom defendant, as attorney for the bank's president, David Baird, entered into a written agreement for the sale of the property. Later, for reasons not here Where defendant, attorney for the presi- important, the sale to silberman was not condent of a bank, engaged a broker to procure a summated, and he forfeited the $1,000 paid purchaser for land belonging to the bank, title as hand money. On defendant's refusal to to which property had stood in the name of the attorney as trustee prior to sheriff's sale made pay the commission, plaintiff's brought this to clear title, and the contract was the usual suit. The case turned largely on questions one, commission is earned where the broker of fact, as to which the evidence was conflictprocured a customer with whom defendant was ing, and the jury found for plaintiffs. This

LIEBERMAN et al. v. COLAHAN. (Supreme Court of Pennsylvania. April 12, 1920.)

1. Trial 143-Conflicts in evidence for jury. Where the evidence on an issue is conflicting, the question is for the jury.

2. Brokers 60-Broker procuring purchaser with whom his employer was willing to contract earns commission.

(110 A.)

appeal by defendant is from judgment en- mer, 66 Pa. Super. Ct. 41; Speers v. Knarr, tered upon the verdict.

[1] There is nothing in the record to justify a reversal. Plaintiffs' evidence is to the effect that defendant individually contracted with them, and as such promised to pay the commission, without disclosing an agency, and the first intimation they had that he was acting for another was when he signed Baird's name to the Silberman agreement by himself as attorney, and that he then said: “Well, we made this sale [by the sheriff] for the purpose of making title; you can look to

me for the commission."

On the contrary, defendant contends that plaintiffs knew of his agency from the first, and that he contracted with them as such; if so, he would not be individually liable, but that was a question of fact.

4 Pa. Super. Ct. 80. So one, having charge of real estate as attorney, may by special parol agreement obligate himself personally to pay a broker's commission for its sale, provided such agreement is original and not collateral to a primary obligation created by or on behalf of the owner. Here, according to plaintiffs' contention, there was no original contract with or on behalf of the owner. The correctness of such contention was for the jury. It found some support in the affidavit of defense, which admitted the contract as set out in plaintiffs' statement, although such admission was withdrawn in an amended affidavit.

[4] The case was manifestly for the jury; in fact, there was no request to take it from them, and the only error assigned is to a portion of the charge, wherein certain al[2] He further contends that by the terms leged misstatements are called to our attenof their agreement the commission was not tion. True, when the agreement was made earned until the prospective purchaser ac- as to the commission the sheriff's deed had cepted and paid for the property. This plain- not been delivered, so it was incorrect for tiffs deny, and it was also a question of fact. the trial judge to state in the charge that the If, as they contend, it was the ordinary case title was then apparently in defendant, as of procuring a customer with whom defend- also may have been the suggestion that the ant was willing to contract, and the jury so defendant's client was not then the real ownfound, then the commission was earned with-er of the property; but as those were essenout reference to the final outcome of the sale. tially matters of fact, and the judge's attenNock v. Guthrie, 239 Pa. 317, 86 Atl. 859; tion Hipple v. Laird, 189 ra. 472, 42 Atl. 46; Keys v. Johnson, 68 Pa. 42; Clendenon v. Pancoast, 75 Pa. 213; Holmes v. Neafie & Levy, 151 Pa.

392, 24 Atl. 1096.

was not called thereto until after

verdict, they afford no ground for reversal. "A party may not sit silent and take his chances of a verdict, and then, if it is adverse, complain of a matter which, if an error, would have been immediately rectified and made harmless." Com. v. Razmus, 210 Pa. 609, 60 Atl. 264; Reznor Mfg. Co. v. Bessemer & Lake Erie R. R. Co., 233 Pa. 369, 82 Atl. 473; Lerch v. Hershey Transit Co., 255 Pa. 190, 195, 99 Atl. 800; Com. v. Delfino, 259 ra. 272, 102 Atl. 949. Moreover, the actual ownership of the property was not important nor in dispute, for the controlling questions were as to whether under the terms of the contract the commission was earned, and, if so, whether defendant personally and as an original undertaking agreed to pay it.

[3] According to plaintiffs' contention de fendant's promise to pay the commission was an original undertaking, and, if so, it would not come within the statute of frauds, which requires that a special promise to answer for the debt or default of another be in writing, and signed by the party to be charged therewith. Act of April 26, 1855 (P. L. 308), stewart's Purdon, vol. 2, p. 1759. At the time the commission here in question was arranged for, there was no debt of another in existence, so the parties were free to make such a contract as they saw fit, and defendant could charge the liability upon himself or his client. A man may by parol contract render himself liable, as original debtor, for work done upon the property of another. Pizzi v. Nardello, 209 Pa. 1, 57 Atl. 1100; Watson et al. v. Porzel et al., Ex'rs, 158 Pa. 513, 27 Atl. 866; Fehlinger v. Wood, 134 Pa. 517, 19 Atl. 746; Jefferson County v. Slagle, 66 Pa. 202; Smith The assignments of error are overruled, v. McKenna, 53 Pa. 151; Black v. Bernhei- and the judgment is affirmed.

The question suggested by appellees, as to whether under the Practice Act of 1915 (P. L. 483) the statute of frauds can be interposed as a defense without being specially pleaded, is interesting, but not necessary to a decision of this case.