by the grantor is not absolute delivery, but only evidence of it, of which the jury may judge."

In Garnons v. Knight, 5 Barn. & C. 671, the syllabus is misleading. Both in that case and in Lloyd v. Bennett, 8 Carr. & P. 124, there had been an actual delivery to a third party.

that portion of the canal "with all the property thereto belonging or in any wise appertaining," and proclamation and deed in accordance with the Act.

(Argued March 15, Decided April 25, 1887.)

for charitable uses in which no question of delivery arises.

tore Mercur, Ch. J., Gordon, Paxson, Trunkey, Sterrett, Green and Clark, JJ. Error to the Common Pleas of Bradford County, to review a judgment on a verdict for the plaintiff in an action of ejectment. Af

Per Curiam:

A delivery is essentially necessary to give effect to a deed. The signing and sealing thereof are insufficient to bind the grantor, or to pass title to the vendee therein named. In the present case no question of presumptive or conditional delivery either to the vendee or to any person for her arises.

It is conclusively shown that although the deed was signed and acknowledged, yet in fact it remained in the possession of the person who signed it until her death. Neither the grantee named, nor the persons for whose benefit it professed to be made, gave any consideration therefor, nor were any of them present when it was signed or acknowledged; and they had no knowledge of its existence during the life of the maker. In law it was not a deed. Decree affirmed and appeal dismissed, at the costs of the appellant.

N. C. HARRIS et al., Plffs. in Err.,

v.

The facts as they appeared at the trial before MORROW, J., were as follows:

In the construction of the Upper North Branch Division of the Pennsylvania Canal in Athens Township, Bradford County, the line of the canal passed through certain land of John Spalding, and the west end of a dam built across the Chemung or Tioga River, for the purpose of feeding the canal with water, was built upon said land, as well as a lock. This dam was one of the largest and most important works of the State, appurtenant to the canal, and its erection consumed a vast amount of timber, earth and stone, all of which were necessarily obtained from the land in suit, and in fact could not be obtained elsewhere, except at an increased and unwarranted expense. The same materials were in constant demand for the maintenance and repair of the dam, and the amount of land required to furnish the necessary material, not only for the construction of the dam, the lock, and the canal, but also constantly needed for their maintenance, could alone be determined by the commissioners.

February 25, 1826, P. L. 55, the Legislature provided for the commencement of the "Pennsylvania Canal;" and sections 7 and 8 of said Act, P. L. 57, authorized the purchase of lands, and provided the mode of procedure in ascertaining damages, etc.

April 9, 1827, P. L. 192, the Legislature provided for the further extension of the Pennsylvania Canal, and by the same Act, pp. 197, 198 (where private property may be in a great measure destroyed by the public works, and when in the opinion of the commissioners it would be

& R. R. CO.

1. Under the Acts of February 25, 1826, and April 9, 1827, the Board of Canal Commissioners had power to purchase lands through which the Pennsylvania Canal was intended to pass, without limitation either as to amount or quality. 2. Land so purchased became ipso facto canal land and appurtenant to the canal.

3. Until the Act of April 9, 1827, the board received authority to sell the remainder not occupied by the canal; but whether they should make such sale or not was left entirely to their own discretion.

pay the probable amount of an assessment of damages), said commissioners were authorized to purchase such lands on behalf of the State, and to sell the remainder not occupied by the canal, and convey to the purchasers respectively the estate and title thus acquired.

September 25, 1838, the canal commissioners, being of the opinion that the erection of the John Spalding, so as to destroy it for farming dam and canals materially injured the farm of purposes, voted to pay said Spalding $4,000, in full compensation for all damages by the building of said dam and canal, and as full pay and consideration of the purchase money of said Spalding's farm or tract of land through which said canal passes (including all that farm and land connected with it), upon said Spalding's conveying said farm to the Commonwealth in fee simple.

Under the authority of the Act of 1858, P. L. 414, the Upper North Branch Division of the Pennsylvania Canal, inter alia, was sold to the Sunbury & Erie Railroad Company, with all the property thereto belonging, or in any wise appertaining, and all the estate, right, title and interest of the Commonwealth therein, the deed for which, dated May 19, 1858 (that was made by the Governor in pursuance of the Act), has since been lost. May 19, 1858, the Governor made proclamation, in pursuance of the sale of all the property.

May 25, 1858, the Governor assented to the sale by the Sunbury & Erie Railroad Company to the North Branch Canal Company, of that part of the canal inter alia beginning at the line of the State of New York, in the County of Bradford, and thence down through the said County of Bradford, etc., embracing the land in question.

May 25, 1858, the Sunbury & Erie Railroad Company made deed to the North Branch Canal Company, which was recorded in Bradford County, June 8, 1875.

April 12, 1859, P. L. 530, the Legislature passed an Act for the assessment and recovery of damages upon the Upper North Branch (and Wyoming) Canal.

March 20, 1865, P. L. 427, the Legislature authorized the North Branch Canal Company to change their name, style and title to the Pennsylvania & New York Canal & Railroad Company, and to construct a railroad along and upon or near the towing path or berme bank of its canal. The railroad was constructed, and continues to be operated.

This action was begun by the said Pennsylvania & New York Canal & Railroad Company, against N. C. Harris and others in possession. The defendants, having no paper title, relied entirely on their possession.

The court below charged the jury as follows: This is an action of ejectment brought by the Pennsylvania & New York Canal & Railroad Company against N. C. Harris and A. C. Elsbree, to recover a lot of land in Athens Township, containing seventy-two acres and 130 perches. The land is on the west of the Chemung River--the dam that was built across the river when the North Branch Canal was constructed, abutted against this land. From the river it extends west, over a high hill. It is a narrow strip, about one mile long.

After the suit was brought, the defendants disclaimed any right, title or possession to all that part of the land lying east of a certain dug road that crossed it along the side hill. This piece contained thirty-nine acres and sixty-one perches. They are in possession of all the land (thirty-three acres and sixty-nine perches) lying west of the dug road, and claim to hold it as against the plaintiff.

In the construction of the North Branch Canal, a dam was constructed across the river at Athens and the west end of it abutted against the land of John Spalding. The canal commissioners, under authority of law, purchased Spalding's land December 18, 1839, for $4,000, in pursuance of a resolution to that effect

In pursuance of an Act of Assembly, the state canals were sold, and the title to the North Branch Canal became vested in the North Branch Canal Company, May 19, 1858. In 1865 this Company's name was changed to the Pennsylvania & New York Canal & Railroad Company and was authorized to construct a railroad along, upon or near the towing path or berme bank. The road was constructed and passes through the land in suit some little west of the Chemung River, and west of the canal.

The plaintiff claims that all of the Spalding farm passed to it under the sale of the state canals, for the reason that it was appurtenant to and part of the canal,

The defendants claim that it was not appurtenant nor necessary to operate the canal. They have given no evidence. Their possession is sufficient to protect them, and there can be no recovery here until the plaintiff has shown a better title. This depends upon the construction of the Acts of Assembly under which the canals were sold. They provide that the sale shall convey all the property appurtenant to the canal or in any wise appertaining thereto, and all the estate, right, title and interest of the Commonwealth in and to the same—and all claim and demand whatsoever, etc.

[The defendants ask us to submit to you whether this land was necessary for the use of the canal-that is, the thirty-three acres and sixty-nine perches. This we refuse to do, and say our opinion is, under the evidence, and the Acts referred to, the plaintiff is entitled to recover.]

This affirms the plaintiff's points, and denies the points of the defendants.

Verdict and judgment were for the plaintiff. The assignments of error specified, inter alia, the portion of the charge inclosed in brackets. Messrs. Edward Overton, Jr., and John F. Sanderson, for plaintiffs in error:

The plaintiff was never in possession of the land in controversy, and it was therefore incumbent on it to show a good title thereto in order to recover against the defendants who are in possession.

Shumway v. Phillips, 22 Pa. 151.

The lot in controversy was not purchased for canal purposes, but under the Act of 1827, which expressly authorized the purchase for the State of lands not required for the canal, when a portion of them had been destroyed by the public works.

In the case of the Plymouth R. R. Co. v. Colwell, 39 Pa. 339, it was said: "They (the company) had very express authority by the incorporating law to buy, hold and sell lands: and in locating their road they probably found it expedient to buy the Larkins farm rather than pay damages for crossing it. But lands so bought and not actually dedicated to corporate purposes are bound by the lien of judgments," etc.

The Act of 1858 authorized the sale of the public works but not the sale of any other property belonging to the State.

A contract between the Commonwealth and

a private person is ordinarily to be construed in the same manner as a like contract between natural persons.

Commonwealth v. Pa. R. R. Co. 51 Pa. 351. The title of the plaintiff extends only to such lands actually and permanently occupied by the State for canal purposes.

Western Pa. R. R. Co. v. Sharp, 26 Pittsb. L. J. 129.

Any ambiguity in the grant must be construed against the corporation and in favor of the public."

Comrs. v. Gas. Co. 12 Pa. 321.

While the rule is that "The words of an instrument shall be taken most strongly against the party employing them," yet "Where a question arises on the construction of a grant from the Crown, the rule under consideration is reversed, for such grant is construed most strictly against the grantee, and nothing will pass to him but by clear and express words."

Broom, Legal Maxims, 260.

The land was clearly no part of the North Branch Canal. When it was purchased by the State the canal board put upon record their reasons for purchasing it. They deemed it to the advantage of the Commonwealth to buy a farm, the portion of which lying on the flats had been injured, and which might be utilized for a water power, rather than pay damages to the owner. The part now in controversy could by no possibility be used in connection with the canal. It was several hundred feet higher than the canal and more than half a mile from it." What is necessary to the enjoyment of the thing devised passes with it as an appurtenant without express words, but what is merely convenient does not."

Howell v. McCoy, 3 Rawle, 256.

This land was not necessary to the enjoyment of the canal.

But even if the land in question had been purchased under the Act of 1827, this would not materially affect the title of the defendant in error to these lands. It is true the canal commissioners had the right to sell such portions of the land so purchased as they might think unnecessary for the canal. But they, and they only, had this right and this discretion. They never did sell any of these lands, and the right to so sell or part with them under the Act of 1827 ended with the expiration of their powers. And from their not having sold any of this land, under the authority of that Act, it should be presumed that they considered it all necessary for the convenient use and occupation of the canal.

The action of the canal commissioners was conclusive of the question as to the amount of land necessary for the convenient use of the canal. The time to dispute their discretion was before them, in the way pointed out by the Act of Assembly creating the board.

It was not for the appraisers of damages to determine that the Commonwealth should take less than a fee, nor even what should be the duration of interest in what was taken for temporary use. This was to be determined by the board of canal commissioners. It was what was required by the board for the use of the State that they were to value and describe; and it was of that thus required and described, not of that which the viewers might think necessary, that the law defined the seisin of the State.

Haldeman v. Pennsylvania R. R. 50 Pa. 425. The question, Who has authority to judge of such encroachments, the canal commissioners or the jury? is begged when it is left to the jury to say whether the canal commissioners

278.

The report of viewers must show that the land taken is necessary for railroad purposes. O'Hara v. Pa. R. R. Co. 25 Pa. 445. Messrs. Davies & Hall and Henry Streeter, for defendant in error:

This land was purchased by the canal commissioners under the Act of February 25, 1826, P. L. 57, as follows: "That it shall and may be lawful for the said board, or a majority of them, to agree with the owner or owners of any land through which the said canal is intended to pass, for the purchase, use and occupation thereof, on behalf of the State."

The land was not purchased under the Act of April 9, 1827, P. L. 198, which expressly

Downing v. McFadden, 18 Pa. 337. See also Ridge Turnpike Co. v. Stoever, 6 Watts & S. 378.

The extent of the transfer to the defendant in error is to be determined by the Act of Assembly authorizing the sale, and the Governor's proclamation showing what was sold and transferred.

There is no ambiguity in either the Act of Assembly or the proclamation; and therefore the cases cited by counsel, that grants are to be construed in favor of the Commonwealth, are not applicable.

The construction of this Act of Assembly is for the court, and not for the jury; but the court in construing it must look into the circumstances under which it was made, as evidencing the intention of the parties.

Cox v. Freedley, 33 Pa. 124.

In order to interpret this Act of Assembly and this proclamation and give each clause in them its full meaning, we must look at things as they then existed, and the canal as it then was. To give a particular description was impossible. The canal property was over 100 miles long. Its boundaries were irregular. In some places its title extended only so far as

ances.

Appurtenances do not pass alone on the ground of absolute necessity, as some of the more ancient cases seem to show, or on the principles governing right of way, of necessity. One general test is how far the incidents claimed are necessary for the reasonable enjoyment of what is expressly granted.

Wright v. Chestnut Hill Iron Ore Co. 45 Pa. 482; Buckholder v. Sigler, 7 Watts & S. 154; Grubb v. Guilford, 4 Watts, 223; Grubb v. Grubb, 74 Pa. 33.

The construction of the dam would consume a vast amount of earth, stones, timber and other materials, and for its maintenance and repairs the same would be constantly needed. A piece of land from which these materials could from time to time be obtained would be necessary for the convenient and economical use and maintenance of the canal at this point.

By the Act of Assembly, all the property of the State in the said public works was to be conveyed. Property signifies every species of property; it is nomen generalissimum, and comprehends all his earthly possessions. It is equivalent to a disposition of all I am worth in the world; whatever else I am worth in the world; whatever else I have in the world; all my substance; which has been construed not only to pass lands but to pass the fee simple. Rossetter v. Simmons, 6 Serg. & R. 456; Stoever v. Stoever, 9 Serg. & R. 445; Foster v. Stewart, 18 Pa. 23-25; Morrison v. Semple, 6 Binn. 98.

But even the word, property, was not considered strong enough to describe all that the grantors intended to convey; and it is mentioned as "property thereto belonging, or in any wise appertaining." Webster defines the word appertain: "to belong to, whether by right, nature or appointment."

The Commonwealth alone can object to a want of capacity in a corporation to hold lands which it was not authorized to purchase. It takes and conveys to its alienee a defeasible title.

Leazure v. Hillegas, 7 Serg. & R. 313; Goundie v. Northampton Water Co. 7 Pa. 233.

Mr. Justice Gordon delivered the opinion of the court:

The case before us involves nothing of material consequence and might well be affirmed, with little or no discussion. It is admitted that the defendants have no title whatever to the land described in the writ. If it belongs not to the plaintiff, then it does belong to the Commonwealth of Pennsylvania; and although it may belong to the latter, yet it is not now and never was open to settlement, warrant or patent; nor is it property over which the land-office has ever had jurisdiction.

The defendants rest their defense solely on the ground of possession, a ground sufficiently substantial if it be found that the plaintiff has not a superior right. It is conceded that the Pennsylvania & New York Canal & Railroad Company, through the Sunbury & Erie Railroad Company, and the North Branch Canal Company, was and is the vendee of the Commonwealth as to all the property belonging or appurtenant to the North Branch Canal; but it is alleged that the land in suit was not so appurtenant, and this because it was not necessary for the use of that improvement; hence, although the grant to the Company above named was, of the upper North Branch Canal, with all the property thereto belonging, or in any wise appertaining," it did not convey the land in controversy. That is, as the defendants contend, although this whole tract of seventy-two acres was bought by the canal commissioners for the use of the canal, and on part of which the canal was actually located, they have nevertheless the right to define what was necessary for that purpose; to run off what they may think was really appurtenant to the state works, and settle upon and occupy the balance.

64

The mere statement of this claim, involving, as it does, an assumption so unwarranted, ought of itself to settle this controversy; for the question naturally presents itself: Who gave these men the authority to say what should or should not be canal property, or to limit the power of the state officers? If the Commonwealth treated this as canal property, and as such conveyed it to her grantees, we cannot understand by what warrant private citizens undertake to sit in judgment on and annul her acts, and the resolutions of her officers. But, passing this feature of the case, let us see how, in fact and in law, this matter stands. By the Act of the 25th of February, 1826, P. L. 55, the canal commissioners were authorized "to agree with the owner, or owners of any land, through which the said canal is intended to pass for the purchase and occupation thereof, on behalf of the State."

Here was the grant of a power certainly of sufficient breadth and generality; their purchases were to be confined to lands through which the canal was intended to pass, but there was no limitation either as to amount or quality; that was left to their sole discretion. They might be extravagant to the last degree; they might buy 100 acres where but ten were necessary, but there was no power which could call them to account, or reverse their judgment, except that by which they were created: the General Assembly of the Commonwealth.

Again; if they did so purchase, under the