of their official powers, except for a clear excess or abuse of them. The decree, by way of injunction, is an exercise of high power, and when its effect is to arrest a public work, a chancellor would require a case of the clearest kind of abuse. Wheeler v. Rice, 83 Pa. St. 232. Courts cannot interfere where public officials exercise their unquestionable powers unwisely. Wharton v. School Directors, 42 Pa. St. 358. "Road commissioners or supervisors have power in the exercise of their discretion, to change the course of a running brook, if demanded by the public convenience." "They are intrusted with the jurisdiction of such matters, and are to decide both upon the necessity of the work and the mode of doing it, and it seems the courts ought not to control them by injunction." Warfel v. Cochran, 34 Pa. St. 381. Nothing but a palpable disregard of the law will induce the court to interfere by way of injunction, where the officers of a corporation are exercising a power submitted to their sound discretion. Hill v. Commissioners, 1 Pars. Eq. Cas. 501. The commissioners had power to repair or rebuild the bridge. Act June 13, 1836, (Purd. Dig. 1505;) act April 13, 1843, (Purd. Dig. 1507;) act May 5, 1876, (Purd. Dig. 1508.) Aside from the statutory powers conferred upon the county commissioners, which it is submitted are ample to warrant the appellants in rebuilding this bridge, there are several decisions of this court, which settle the question beyond cavil: Oil Creek Bridge Case, 47 Pa. St. 361; Humphreys v. County of Armstrong, 56 Pa. St. 204; Hagne v. City of Philadelphia, 48 Pa. St. 530; Broomall's Appeal, 75 Pa. St. 173. The plaintiff clearly has no ground for an injunction. All his rights can be secured, and his injuries redressed, if any he has sustained, by an action at law. Chester Co. v. Brower, 12 Atl. Rep. 577. None of Mr. Riddle's lands were taken, and if he has suffered any consequential damages from the new work, they can be awarded to him in an action of case.

George E. Darlington, for appellee.

The act of 1843 does not give the commissioners power to rebuild a bridge, except it has been destroyed by fire, flood, storm, or other casualty. County commissioners, in rebuilding a bridge, have no legal right to change the site of the old bridge to the damage of the riparian owner above. The site of a bridge cannot be removed after the bridge is once built. Bedford Bridge, 72 Pa. St. 42; McMurtrie v. Stewart, 21 Pa. St. 325; Bridge over Smithfield Creek, 6 Whart. 363. The plaintiff is entitled to an injunction for the following reasons: If a corporation abuses its privileges, whether municipal or private, and encroaches upon the rights of individuals, the court has authority to interfere by way of injunction. Hill v. Commissioners, 1 Pars. 507; Wharton v. School Directors, 42 Pa. St. 362. Because it is a strong and mischievous case of pressing necessity, and the court should interpose to prevent the irreparable mischief and to prevent multiplicity of suits. Minnig's Appeal, 82 Pa. St. 373; Jarden v. Railroad Co., 3 Whart. 512; Rhea v. Forsyth, 37 Pa. St. 506; Improvement Co.'s Appeal, 54 Pa. St. 372; Appeal of Sheaffer, 100 Pa. St. 379; Berlew v. Illuminating Co., 1 Pa. Co. Ct. Rep. 651. Because the defendants, without authority of law, are changing and widening the public road and bridgeway on the plaintiff's land where the same was never laid out, and has never been before used, to the great damage of the plaintiff, and without compensation or any assessment of damages or security therefor. Keene v. Borough of Bristol, 26 Pa. St. 46; Const. 1874, art. 16, § 8; Miller v. Railroad Co., 8 Atl. Rep. 209; Patent v. Railroad Co., 14 Wkly. Notes Cas. 545; New Brighton v. Church, 96 Pa. St. 339; Pusey v. Allegheny, 10 Wkly. Notes Cas. 561; Guard Ass'n v. Scranton, Pa. Co. Ct. Rep. 550; Railroad v. Duncan, 17 Leg. Int. 86; County of Chester v. Brower, 12 Atl. Rep. 577. Because an injunction will be granted to prevent disturbance and interference with an easement, and the plaintiff is likewise entitled to one to protect his riparian rights and the full enjoyment of his property rights. Rhea v. For

syth, 37 Pa. St. 506; Johnson's Appeal, 95 Pa. St. 78; Coal Co. v. Navigation Co., 50 Pa. St. 100; Coal Co. v. Water Co., 54 Pa. St. 171.

PAXSON, J. If this had been a tax-payer's bill, with the proper averment, we would have had before us in an orderly way the question of the power of the commissioners of Delaware county to tear down and rebuild a county bridge without any action on the part of the grand jury and the court of quarter sessions. It is not, however, a tax-payer's bill. It was filed by a property owner, whose only complaint is that the commissioners are erecting the bridge in a manner that will be injurious to his property rights. The learned judge below evidently saw this difficulty when he said in his opinion: "It is contended, however, that as this is not a tax-payer's bill, the question of authority is not raised. While it may be true that the question of authority to build the bridge is not the direct issue between the parties, it is incidental to it. The bill prays for relief from an alleged unlawful act, and Wilhelm's Appeal decides (79 Pa. St. 120) that where there is jurisdiction of the subjectmatter, equity may determine any incidental question necessarily involved. The plaintiff charges the commissioners with an unlawful interference with his property. He may therefore show a want of authority to do the act complained of." This paragraph is evidently based upon a misconception of the nature and effect of the plaintiff's bill. We do not understand it to pray for relief "from an alleged unlawful act" nor to charge the commissioners "with an unlawful interference with his property." On the contrary, it charges no unlawful act on the part of the commissioners. There is no averment in the bill that they are proceeding without proper authority to rebuild the bridge, and without such averment a tax-payer's bill would be demurrable. Public officials like county commissioners can only be restrained in their official acts when it appears that they are proceeding without lawful authority. This is the principle which underlies Sharpless v. City of Philadelphia, 21 Pa. St. 147, and the line of cases following it. The building of county bridges is one of the recognized duties of county commissioners. There is no averment that these commissioners are proceeding without authority of the grand jury and court of quarter sessions. We cannot therefore, as before stated, pass upon the question of their power to act without such sanction. Nor would it help the matter were we to permit the bill to be amended, and by a convenient fiction treat it as a tax-payer's bill, for it would still lack the essential averments. It would have to be reconstructed from the foundations to give it any value as a tax-payer's bill. This cannot be done at this stage of the case. It needs no authority to show that the county commissioners cannot be controlled in their discretion in building a county bridge at the application of a private citizen. This cannot be done either in the size of the bridge, its plan, or the location of its piers or abutments. The master finds that this bridge is located wholly on the old road-bed, and within its lines. It does not touch the land of the complainant. If it causes injury to the latter by interfering with his water rights, he has his remedy by an action on the case. The right to compensation for what are usually called consequential injuries,—that is to say, where property is injured without being actually taken,-is given by section 8 of article 16 of the constitution. We do not agree, however, with the learned judge below, that a jury could be appointed to assess the damages. This can only be done where property is actually taken. We have therefore held that inasmuch as the legislature has provided no remedy for the assessment of such damages, an action on the case will lie to enforce the right conferred by the constitution. Railroad Co. v. Duncan, 111 Pa. St. 352, 5 Atl. Rep. 742; County of Chester v. Brower, 12 Atl. Rep .577. Nor do we agree with the court below that the complainant is entitled to his injunction until the county shall make compensation for the injury. The only difference between the late constitution and the present one in this respect is that in the former, compen

Pa.] sation was given only for property taken; in the latter, compensation is given for property taken, injured, or destroyed. In either case, compensation must be made or secured before such taking, injury, etc. It has been repeatedly held that the power of taxation in a municipal corporation is sufficient security for property taken by such corporation. Hence, it logically follows that it is sufficient for property injured. These authorities are too familiar to need citation. The decree is reversed, and the bill dismissed at the cost of the appellee.

DELAWARE RIVER IRON SHIP-BUILDING & E. WORKS v. NUTTALL. 65

DELAWARE RIVER IRON SHIP-BUILDING & ENGINE WORKS v. NUTTALL. (Supreme Court of Pennsylvania. March 5, 1888.)

1. MASTER ANnd Servant-DANGEROUS MACHINERY-CIRCULAR SAW.

Plaintiff was a mechanic, and had been at work for several weeks as a carpenter in the same room in which a circular saw was operated, when he was put to work carrying lumber to the right of the sawyer, where it could be easily reached by him. While so engaged, and in passing behind the sawyer, he was injured by a stick that had been caught and thrown violently forward by the saw. In an action to recover for the injury so received, held, that defendant was not guilty of negligence for failure to notify plaintiff that a circular saw was a dangerous machine. 2. SAME-FAILURE TO PROVIDE SAW WITH "SPREADER."

In an action to recover for personal injuries received by plaintiff, who, while passing behind a sawyer, was struck by a stick that had been caught and thrown violently forward by a circular saw, the court erred in instructing the jury that the defendant was guilty of negligence for failure to provide the saw with an attach ment called a "Spreader," as such an attachment was not in general use, and there was no general agreement among mill-owners or practical sawyers that it was desirable or useful.i

Error to court of common pleas, Delaware county.

This action was brought by David I. Nuttall against the Delaware River Iron Ship-Building & Engine Works, to recover for personal injuries received while in defendant's employ. Judgment was rendered for the plaintiff, and defendant brings error.

William Ward, for plaintiff in error. V. Gilpin Robinson and Isaac Johnson, for defendant in error.

WILLIAMS, J. The defendant in error, who was plaintiff below, was in the employment of the ship-building and engine works as a carpenter. While so employed, he was requested on the day of the accident to assist at the circular saw by carrying the lumber that was to be cut up, preparatory to slitting, to the right of the sawyer, where it could be easily reached by him. He had carried 30 or 40 pieces, and was passing around with another, when a stick that was upon the table got behind the saw, and was caught by it, and thrown violently forward, hitting Nuttall, and destroying one eye. This suit was brought to recover damages for the injury so sustained. There is no allegation that the sawyer was not a competent and careful man, nor that the circular saw was not of the pattern and quality in ordinary use, and at the time in good repair. The negligence which the plaintiff imputes to the defendant, and for which a recovery was sought and allowed in the court below, is the failure to inform the plaintiff, when he was sent to carry the lumber, that a

If the machinery furnished by a master to his servant is sound, well made, and kept in repair, he will not be liable for an accident occurring to an employe when the only ground alleged is that there is a better and safer kind used for the same purpose. Richards v. Rough, (Mich.) 18 N. W. Rep. 785; Sweeney v. Envelope Co., (N. Y.) 5 N. E. Rep. 358; Peirce v. Colton Mills, (Ga.) 4 S. E. Rep. 381. A master is not bound to adopt the safest method of working. Naylor v. Railway, (Wis.) 11 N. W. Rep. 24; Hickey v. Taaffe, (N. Y.) 12 N. E. Rep. 286. And his liability for injuries to his servant for defective arrangements is not that of an insurer or guarantor, if the defect was apparent to ordinary observation. The question is one of reasonable care and diligence. Batterson v. Railway Co., (Mich.) 13 Ñ. W. Rep. 508, and 18 N. W. Rep. 584; Railroad Co. v. Wagner, (Kan.) 7 Pac. Rep. 204.

v.13A.no.1-5

circular saw was a dangerous machine, and the failure to provide the saw with an attachment called a "Spreader." As to the first of these, it must be remembered that the work Nuttall was asked to do was simply that of a bearer of burdens; work which is done by cheap and unskilled labor. He was a mechanic, and had for weeks been working in the same room in which this saw was operated. All that could have been told him by way of warning was that there was a possibility of injury from a flying stick, but that during many years no such accident had happened in the defendant's works. That the omission of such a warning to a mechanic, under the circumstances of this case, was a failure in duty on the part of the employer, is simply preposterous. There is risk and liability to accident in all employments, but the law does not require an employer to protect his employes against the possibility of an accident. He is bound to provide suitable machinery and implements for their use, see that they are in reasonable order, and that the usual precautions against accident are taken. The possibility of accident which lies beyond is a risk which every mechanic and every laborer takes, and must take, as incidental to every form of activity. As to the failure to provide a spreader, the case of the plaintiff is, if possible, more clearly without merit. The testimony shows that such an attachment is not in general use, and that there is no general agreement among mill-owners or practical sawyers that it is a desirable or a useful attachment. It is not enough that some persons regard it as a valuable safeguard. The test is general use. Tried by this test, the saw of the defendant is such a one as the company had a right to use, because it is such as is commonly used by mill-owners; and it was error to leave to the jury any question of negligence based on the failure to provide a spreader. The first, third, fourth, fifth, and sixth assignments of error are sustained. The judgment is reversed.

Appeal of PERRY et al.

(Supreme Court of Pennsylvania. March 5, 1888.)

APPEAL-IN EMINENT DOMAIN-PROCEEDINGS-APPELLANT NOT REQUIRED TO GIVE SECURITY FOR COSTS.

On appeal under act Pa. April 9, 1856, supplementary to the railroad law of 1849, relating to the appropriation of land and the adjustment of damages, and providing that either party may appeal from the report of the viewers appointed to assess the damages within 30 days after report filed, the appellant is not required to pay costs, or enter into a recognizance for the payment thereof, as a condition precedent. Following Memorial Ass'n v. Sherfy, 10 Atl. Rep. 758.

Appeal from court of common pleas, Montgomery county; B. M. BOYER, President Judge.

This case arises under the general railroad law of 1849, and the supplements thereto relating to the appropriation of land and the assessment of damages. June 14, 1884, the defendant, the Pennsylvania Schuylkill Valley Railroad Company, bonded the plaintiffs, John Perry and William Perry, and a jury was appointed to assess the damages. The defendant appealed from the award, making oath thereto as required by law, but paid no accrued costs, nor filed any recognizance to secure the payment of subsequent costs. The motion made by defendants to dismiss the appeal on these grounds was overruled in the court of common pleas, and defendants appeal.

Theo. W. Bean, for appellants. Charles H. Stinson, for appellee.

PER CURIAM. The appeal in this case is dismissed, and the decree affirmed, at costs of appellants, for reasons which will be found in the case of Memorial Ass'n v. Sherfy, 10 Atl. Rep. 758.

SALSBURY v. BLACK.

(Supreme Court of Pennsylvania. March 12, 1888.)

TRUSTS-RESULTING TRUST-PAROL AGREEMENT-PURCHASE OF PROPERTY AT EXECUTION SALE.

Defendant, having a judgment lien on real estate belonging to plaintiff, entered into a parol agreement with her to sell the property under the judgment, and bid it in for her, she to have a certain time to redeem. Held that, in default of payment of any portion of the redemption money, there was no trust resulting under the agreement in favor of the plaintiff.1

Error to court of common pleas, Lackawanna county; HENRY A. KNAPP, Judge.

Action of ejectment brought by Helen C. Salsbury against Robert T. Black for a house and lot in Scranton, Pa. Judgment was directed for the defendant, and the plaintiff brings error. The facts appear sufficiently in the opin

ion.

W. W. Watson and G. M. Harding, for plaintiff in error. Edward N. Willard. Everett Warren and Edward B. Sturges, for defendant in error.

PAXSON, J. This was an action of ejectment. The defendant claimed title by virtue of a sheriff's deed. The plaintiff claims under a parol trust, and alleges that it comes within the exception of the act of 1856, for the reason that it is a resulting trust. The facts, stating them in the most favorable way for the plaintiff, are substantially as follows: At and for some time before the sheriff's sale, the plaintiff was the owner of the house in question. The defendant occupied it as her tenant. The rent was paid to her brother. There were three liens on the property, viz.: (1) A mortgage of $2,000. held by a Mrs. Sherwood; (2) a judgment for $2,000, held by the defendant; (3) a judgment in favor of Thomas Moore for $1,249.54. The interest upon all these liens was largely in arrear. In June, 1878, the defendant, ascertaining that the Sherwood mortgage was about to be foreclosed, notified the plaintiff, who lived out of the county, of that fact. She met the defendant in Wilkes Barre shortly thereafter, and an arrangement was made by which the arrears of interest due on the Sherwood mortgage was paid, and the proceedings stopped, the defendant advancing the sum of $250 for that purpose. The plaintiff alleges that at this interview the defendant agreed to sell the property on his judgment, and buy it in for her. This would leave it subject to the Sherwood mortgage. The defendant denies this, and says he told her, if the interest was paid up on the mortgage, he would let his judgment stand for two years at 6 per cent. Be that as it may, the property was sold by the sheriff upon defendant's judgment in the following December. The plaintiff had notice of this sale; she came to Scranton on the morning thereof; had an interview with the defendant previous to the sale, at which it was agreed that he would buy the property for the plaintiff. He purchased it accordingly, and informed her of it the same evening. The defendant alleges that plain

1An oral agreement to purchase for another at a bona fide sheriff's sale will not of itself raise a trust. Fraud at the time of the sale, or the payment of the purchase money, is necessary. Appeal of McCall, (Pa.) 11 Atl. Rep. 206. When a conveyance is made to one person, the consideration for which moves from another, a trust results in favor of the latter. Bigley v. Jones, (Pa.) 7 Atl. Rep. 54; Donlin v. Bradley, (Ill.) 10 N. E. Rep. 11; Harris v. McIntire, (Ill.) 8 N. E. Rep. 182; Springer v. Young, (Or.) 12 Pac. Rep. 400; Smith v. Brown, (Tex.) 1 S. W. Rep. 573; Bedford v. Graves, (Ky.) Id. 534; Ward v. Matthews, (Cal.) 14 Pac. Rep. 604; O'Connor v. Irvine, (Cal.) 16 Pac. Rep. 236; Carter v. Challin, (Ala.) 3 South. Rep. 313; Reynolds v. Sumner, (Ill.) 14 N. Ê. Rep. 661; Craig v. Turley's Adm'r, (Ky.) 6 S. W. Rep. 648. And such trust results, even though the consideration has been in fact advanced by the grantee for the other person; the grantee holding the title as security for such advances. Barroilhet v. Anspacher, (Cal.) 8 Pac. Rep. 804; Walton v. Karnes, (Cal.) 7 Pac. Rep. 676. But see, to the contrary, In re Wood, 5 Fed. Rep. 443; Bear v. Koenigstein, (Neb.) 20 N. W. Rep.