(255 Pa. 462) Chicago Railway Company and another. RODGERS et al. v. PITTSBURGH, FT. W. Judgment for defendants on directed verdict, & C. RY. CO. et al. and plaintiffs appeal. Affirmed. (Supreme Court of Pennsylvania. Jan. 8, 1917.) Argued before BROWN, C. J., and MES1. RAILROADS 68-RIGHT OF WAY-CON-TREZAT, POTTER, STEWART, and FRAVEYANCE-DESIGNATION OF WIDTH. ZER, JJ. Where a deed to a railroad company conveys "the full and perfect right of way through and over said lots or lands" for railroad purposes, but does not specify the width of the right of way, the railroad has the right to appropriate land of such width as the board of directors, in the exercise of their honest judgment, deem necessary for the future as well as for then existing railroad purposes. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 159, 160.] 2. RAILROADS 68-RIGHT OF WAY-CONVEYANCE-WIDTH. Where in such case, a few days after the conveyance, the railroad in eminent domain proceedings condemned a right of way on either side of said grant 80 feet in width and connecting with the grant, and filed a description of the lands so taken by it with the clerk of the common pleas court, as required by its charter, it thus indicated to the grantor in such deed just what the width of the right of way through his intervening property would be, and thereby became entitled to a right of way eighty feet in width under such deed. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 159, 160.] 3. RAILROADS 73(1)-RIGHT OF WAY WIDTH-INDICATION. In ejectment by the record owner of land through which the right of way was granted for a part of the land in the possession of the railroad company and included within the 80-foot right of way, where the full width of 80 feet was unused from the time of the conveyance in 1850 until 1883, and thereafter the railroad company occupied the full width until the action was brought in 1911, and no claim in opposition to the right of way had theretofore been presented, and the railroad's possession was manifest to plaintiffs when they acquired title, defendants were not estopped to claim title to a right of way 80 feet in width under a grant, and the court properly directed a verdict for defendants. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 179.] 4. RAILROADS 68-RIGHT OF WAY-WIDTH -SLOPE OF EMBANKMENT. In such case, where it appeared that the railroad was built upon an embankment, the lower court properly decided that the right of way could not be restricted to the level top of the 80-foot wide embankment, but had a right to the necessary slopes, although they extended in some places 40 feet beyond the 80-foot right of way. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 159, 160.] . 5. EJECTMENT EVIDENCE. 94-RECOVERY IN PART Where plaintiffs in ejectment were entitled to some part of the land described in the writ, but where the limit of such land was not described in the testimony, the court properly refused to permit a recovery for a fractional part of the land described in the writ. [Ed. Note. For other cases, see Ejectment, Cent. Dig. § 279.] S. S. Mehard, C. D. Scully, and C. B. Me. hard, all of Pittsburgh, for appellants. W. S. Dalzell, of Pittsburgh, for appellees. BROWN, C. J. In this ejectment both parties claim from Benjamin Dilworth as the common source of title. At the conclusion of the testimony a verdict was directed for the defendants. At the time the learned trial judge affirmed defendants' point for binding instructions he gave no reason for so disposing of the case, but subsequently, in the opinion overruling plaintiffs' motion for a new trial, the reasons are stated at length. The land in controversy is claimed by the defendants as part of their right of way acquired from Benjamin Dilworth in 1850, by grant from him to the Ohio & Pennsylvania Railroad Company, their predecessor in title. Their claim is that the right of way so acquired was 80 feet in width, and, if this be true, as the court below held, under the record and documentary evidence in the case, the plaintiffs are not entitled to recover, as the strip of land in controversy is within the 80 feet. [1] The Ohio & Pennsylvania Railroad Company, to whose rights the appellees have succeeded, was incorporated by act of April 11, 1848 (P. L. 1849, p. 754), and by its charter was authorized to enter upon any land and appropriate as much thereof as might be deemed necessary for its corporate purposes. Nothing is said in the act as to the width of a strip of land that it was so authorized to take. A portion of its proposed road was located through lands of Benjamin Dilworth, and on May 5, 1850, he granted to it by deed "the full and perfect right of way through and over said lots or lands" for its railroad purposes. With the grant indefinite as to the width of the right of way, what did the railroad company take under it? It clearly had the right to appropriate land of such width as its board of directors, in the exercise of their honest judgment, deemed necessary for the future as well as for then existing railroad purposes. Railway v. Peet, 152 Pa. 488, 25 Atl. 612, 19 L. R. A. 467. [2] The Ohio & Pennsylvania Railroad Company was not able to agree with the owners of lands immediately east and west of the Dilworth tract, and, within ten days from his grant to it, condemnation proceedings were instituted by it for the assessment of damages to be paid to those owners. The Appeal from Court of Common Pleas, Alle- record of the condemnation proceedings, gheny County. Ejectment by William B. Rodgers and another against the Pittsburgh, Ft. Wayne & properly admitted in evidence to show what the railroad company then regarded as a necessary width for its right of way, establish ed the fact that at the time Dilworth executed his grant to it it claimed and obtained, by proper adverse proceedings, from the adjoining owners, a right of way 80 feet in width through their properties. and the definition by condemnation proceedings of the claimed right of way of the Ohio & and west of the Dilworth land as 80 feet in Pennsylvania Railroad immediately to the east width, and that the railway was not bound to use its entire property to the full width until [3-5] But it is contended that, notwith- the exigencies of traffic required it, directed a verdict for the defendants. If the court were standing this, as the railroad company, under right in this view, it followed that the defendthe grant to it from Dilworth of a right of ants' occupancy of the land formerly of its way indefinite in width, occupied and used grantor could not be limited to the level top of from 1850 to 1883 a strip of land only 32 with it necessary slopes on the river side, which the 80-foot wide embankment, but also carried feet wide through his property, it thereby in places extend 40 feet beyond the top line of established the width of the right of way, be the level roadbed. It was contended that in yond which neither it nor its successors in any event there was some space between the title could subsequently go in the construc-erty line for which plaintiffs were entitled to a foot of such slope and plaintiffs' southern proption or widening of their roadbed, and that verdict. The court declines to accept this view, the land outside of that width is in the ap- since, to recover any such fractional part of pellants, Dilworth's successors in title. But the ground described in the writ, the jury must have been able to describe the property for for the fact that the railroad company, by which such a verdict could be rendered, and its condemnation proceedings, clearly indicat- there were no definite and certain limits fixed in ed to Dilworth, within a few days from his or presented by the plaintiff's testimony or apgrant to it, that the right of way which it to pass upon that question would have been pearing in the case. To have allowed the jury would require would be 80 feet in width, there asking them to guess at the metes, bounds, and might be force in appellants' contention, and area.' Philadelphia & Reading Railroad Company v. Obert, 109 Pa. 193, 1 Atl. 398, might support it. The statute incorporating the railroad company required it to deposit with the clerk of the court of common pleas a description of the lands taken by it under condemnation proceedings, and, in a proper draft so deposited, the lands taken by it to the east and west of the Dilworth tract were described by metes and bounds, running up to that tract on each side of it. There was thus indicated to Dilworth just what the width of the right of way would be through his intervening property. If the railroad company so indicated the width to him, as it manifestly did, his grant passed such width to it, and its nonuser of the entire width for a period of years was not an abandonment of the portion not used. Railway v. Peet, supra. At the time appellants' predecessors acquired title it appeared from the acts of the appellees upon the ground that they claimed title to land lying between the center line of its road and a line 40 feet distant therefrom on each side. When these appellants acquired their title in 1900, this was manifest to them, and there was no evidence that from 1884 down to the time this action was brought any claim had ever been made by any one in opposition to the right of way claimed by the appellees. On the contrary, in a letter written to the Pittsburgh, Ft. Wayne & Chicago Railway Company by William B. Rodgers, one of the plaintiffs, on April 23, 1904, he distinctly recognized the company's right of way "40 feet wide on the south side of your center line." It is not necessary to refer to other matters taken into consideration by the court below in sustaining the action of the trial judge in directing a verdict for the defendants. It was properly directed for the following taken from that opinion: "The court, being of the opinion that under the original charter act, the Dilworth grant, Judgment affirmed. (255 Pa. 475) COMMONWEALTH ex rel. GAST v. KELLY. [Ed. Note.-For other cases, see Elections, Cent. Dig. § 29.] 2. ELECTIONS 187 -- MEN-UNEXPIRED TERM. BOROUGH COUNCIL Where, at an election for borough councilmen for an unexpired term, the tickets did not use the word "unexpired," but had the particular office segregated on the printed ballot "Council-Short Term (Vote for One)," the failure to put the designation in the precise language of the May 14, 1915 (P. L. 312), does not declare the statute did not invalidate the election, as Act irregularity to be fatal, and, under the facts of the case, the deviation from the statutory requirements did no harm. [Ed. Note.-For other cases, see Elections, Cent. Dig. § 161.] 3. QUO WARRANTO 55-EVIDENCE-CERTIFICATE OF ELECTION-EFFECT of NonPRODUC TION. Where a successful candidate for borough councilman did not receive the certificate called for by Act June 13, 1840 (P. L. 683), and Act April 3, 1851 (P. L. 320), but secured a certicate from the clerk of court, to whom the election officials made their return, and received a substantial majority of the votes cast, the nonproduction of a proper certificate in quo warranto proceeding was immaterial. [Ed. Note. For other cases, see Quo Warranto, Cent. Dig. §§ 63-65.] 4. ELECTIONS TION-EFFECT. 267-CERTIFICATE OF ELEC ballot box that title is derived to an elective ofIt is by the public expression through the fice. The certificate of the board of canvassers is merely evidence of the person to whom the majority of votes was given. While the certificate may be conclusive in a controversy aris ing collaterally or between the person holding it and a stranger, in a proceeding instituted in the name of the people it is only prima facie evidence of the right. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 242, 243.] UTE. BOR Under Act March 31, 1860 (P. L. 400) § 66, and Act May 28, 1907 (P. L. 262), declaring it unlawful for any councilman to be interested in any contract for the sale of supplies, etc., to the municipality, or to be a stockholder in any corporation interested in a contract with the city, and that a violation of such provision shall make him ineligible to office, he must get rid of his disqualification before he is appointed or elected; but where a law merely forbids him to hold the office, or exercise its duties, it is sufficient if he qualifies himself before he is the removal of Dr. Goodrich from the borough was but temporary; that the latter had not resigned or given notice to the borough authorities of an intention to vacate or abandon his office of councilman; that the subject of his removal was not formally brought 5. MUNICIPAL CORPORATIONS 140 OUGH COUNCILMEN-QUALIFICATION-STAT- to the attention of the council until its regular meeting on December 6, 1915, when a vacancy was declared, and he (Kelly) duly The respondent chosen to fill the place. contended that no vacancy existed until the date last mentioned, and therefore the relator could not have been lawfully elected in the previous month. He raised no question as to the marking or casting of the tickets at the November election, or concerning the result of the balloting on that occasion; it being admitted by him that Mr. Gast had fairly received a substantial majority of the votes then cast. The validity of the elec sworn. ВОВ 6. MUNICIPAL CORPORATIONS 140 OUGH COUNCILMEN-ELIGIBILITY. One who is a stockholder in a corporation tion, however, was attacked upon several holding a contract with a borough at the time grounds, all of which are again urged on of his election as councilman thereof, in violation this appeal, namely: (1) That no notice prior of Act May 28, 1907 (P. L. 262), and who bona fide parts with his stock before taking his thereto had been given by the borough secreseat, does not forfeit his right to the office. tary to the county commissioners of a va7. MUNICIPAL CORPORATIONS 150 — BOR- cancy in the membership of the borough OUGH COUNCILMEN-VACANCY-STATUTE. council; (2) that no election proclamation Although Borough Act May 14, 1915 (P. L. had been made by the high constable; (3) 312), does not specifically provide that the removal of a councilman from the borough shall that the ballots contained a defective desigleave a vacancy in the office occupied by him, nation, in that they failed to state the canwhere the facts disclose a removal and an actual didates for the office in controversy were abandonment of the office, a vacancy is created. running for an "unexpired term"; (4) that [Ed. Note.-For other cases, see Municipal the relator had not received an election cerCorporations, Cent. Dig. §§ 333-337.] tificate from the proper officials; (5) "that Appeal from Court of Common Pleas, Al- the relator was disqualified to be a member legheny County. Quo warranto by the Commonwealth of Pennsylvania, on relation of William Gast, against Harry B. Kelly, to determine the title of councilmen in the borough of McKees Rocks. Judgment for relator, and respondent appeals. Affirmed. Argued before BROWN, C. J., and POTTER, MOSCHZISKER, STEWART, and WALLING, JJ. Edward F. Duffy and R. S. Martin, both of Pittsburgh, for appellant. Patterson, Crawford, Miller & Arensberg and Eckles & Conrad, all of Pittsburgh, for appellee. MOSCHZISKER, J. January 8, 1916, William Gast filed a suggestion for a writ of quo warranto, in the common pleas of Allegheny county, against Harry B. Kelly, averring that a vacancy had occurred in the council of the borough of McKees Rocks by reason of the removal from that locality, on or about September 1, 1915, of Dr. H. J. Goodrich, one of its councilmen; that at the regular election in November, 1915, the relator had been elected to fill the vacancy thus created, and had duly qualified, but in the meantime the respondent had been perImitted to intrude himself into the office in question, without legal authority or right. The respondent answered, inter alia, that * of said council at the time of his alleged election, at the time he took his oath of office, and at the time of the reorganization of the council of said borough, on the first Monday of January, 1916, when he first claimed a seat in said council, as well as at the time the said respondent filed his answer, * * because the relator was the owner and holder of 20 shares of the capital stock of the Ohio Valley Water Company, which had been and was furnishing water to the said borough under ordinance and contract;" (6) that, as a matter of fact, and in law, at the date of the election, November, 1915, no vacancy existed in the office here in question. The relator filed a replication, wherein he averred that both he and the respondent were candidates for the same place at the election in November, 1915, representing different parties, and that he (Gast) was legally chosen by a considerable majority; the respondent being accordingly defeated. He denied that the removal of Dr. Goodrich was only temporary, and averred the latter had given up his residence at McKees Rocks and permanently removed therefrom in August, 1915, or thereabouts; further, that this fact was well and generally known to the corporate authorities and the residents of the borough "a long time prior to the fall primaries for the year 1915." Therefore he contended For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "The borough council may fill any vacancy in their body until the municipal election next folpersons shall be chosen to fill such vacancies for lowing, at which election a sufficient number of the unexpired term. The voters shall designate on their ballots that the persons thereon named are voted for to fill an unexpired term." that a vacancy existed in the office thus sur- | Borough Act May 14, 1915 (P. L. 312, 412), by rendered by Dr. Goodrich, and that, the place section 2, art. 2, c. 8, provides: having been filled by the electors in November, 1915, the borough council had no power to elect the respondent, or any one else, to the same office in the following December. He refused to admit any material defect in the ballots, and averred he received the usual election certificate and had taken the oath of office prescribed by law; finally, he denied that "he is now" a stockholder in the before-mentioned water company, or "has any connection whatsoever" with that or any other corporation doing business or contracting with the borough, "either directly or indirectly." When the case came to trial, binding instructions were given for the relator, and the jury so found their verdict; whereupon the court below entered judgment ousting Mr. Kelly and seating Mr. Gast for the balance of the term vacated by Dr. Goodrich. The respondent has appealed. We shall consider the several matters to be determined in the order in which they are enumerated in the second paragraph of this opinion. The tickets here in question did not use the word "unexpired," but they had this particular office segregated on the printed ballot, under the following designation: "Council-Short Term (Vote for One)." On the established facts in this case, the failure to put this designation in the precise language of the statute did no harm; for it is plain beyond doubt that the electors knew the situation, and that they were voting to fill the unexpired term of Dr. Goodrich. We recently had occasion to discuss a complaint somewhat akin to the one now before us, in Knight v. Coudersport Borough, 246 Pa. 284, 289, 92 Atl. 299, 300, and there said: "If the law declares a specified irregularity to be fatal, the court will follow that command, irrespective of their views of the importance of the requirement. In the absence of such declaration, the judiciary endeavor, as best they may, to discern whether the deviation from the had or had not so prescribed forms vital an influence as probably pre [1] The first two contentions of the appellant may be disposed of together. Rice, P. J., afterwards President Judge of the Superior Court, in the case of Com. ex rel. v. Rey-vented a full and free expression of the popular nolds et al., 5 Kulp, 547, states that: "An election will be sustained, notwithstanding there was no proclamation, if the electors had general knowledge of it, and a reasonable number of votes was polled." will. If it had, the irregularity is held to vitiate the entire return; otherwise, it is considered immaterial." See, also, McCrary on Elections, §§ 540, 549, 549a; and Brightly's Leading Cases on Elections, p. 266. There is no merit in the present assignment of error. While our attention has not been called to any decision of this court upon the point, yet the law as laid down by the eminent jurist [3, 4] So far as concerns the fourth ground just quoted appears to be supported by re- of complaint, it is true Act June 13, 1840 (P. spectable authorities in other jurisdictions. L. 683) § 1, provides that the inspectors and See McCrary on Elections, § 178 et seq.; judge of election shall make out a certificate Brightly's Leading Cases on Elections, p. 679, "for each person chosen as * a townciting Foster v. Scarff, 15 Ohio St. 532, 537, ship officer, which certificate shall be deliverwhere, in the latter case, Chief Justice Brink-ed to the person so chosen," and that section erhoff states: "We have no doubt that where an election is held in other respects as prescribed by law, and notice in fact of the election is brought home to the great body of the electors, though derived through means other than the proclamation which the law prescribes, such election would be valid." 14 of the act of April 3, 1851 (P. L. 320) provides that borough elections are subject to all the laws regulating township elections, "so far as applicable." The relator did not receive the certificate called for by these acts of assembly; but he did secure one from the clerk of the court to which the election officials had made their return, and, so far as the evidence shows, such was the customary credential presented by councilmen in the borough of McKees Rocks. Whether or not this certificate would, under ordinary circumstances, be sufficient, makes but little difference here, for, since it is freely admitted by the respondent that the relator received a substantial majority of the votes cast at the In the case at bar, the electors of the district had ample notice at the fall primary in 1915 of the alleged vacancy; for there was a spirited contest over the place, with all the notoriety which inevitably accompanies such a campaign, both at that time and at the following general election in November, when a much larger vote was cast than usual, apparently because of the struggle to gain this particular office. In view of these circum-election, it follows he was entitled to a propstances, and since the election at which the relator was chosen was held on the regular day ordained by law, in the customary place, and by the proper officials, it is now too late to question its validity for want of the usual proclamation or other prescribed notice. er certificate; or, to put the proposition in another way, his prima facie right as the successful candidate at the November election being assented to, the nonproduction of a proper certificate showing that fact, so far as the present controversy is concerned, is im "Where a statute declares that certain disqualifications shall render a person ineligible to an office, he must get rid of his disqualification before he is appointed or elected; but if the law merely forbids him to hold or enjoy the office, or exercise its duties, it is sufficient if he qualifies himself before he * is sworn.' through the ballot box that a title is derived to an elective office; the certificate of the board of canvassers is merely evidence of the person to whom a majority of votes was given. The certificate may indeed be conclusive in a controversy arising collaterally, or between the party holding it and a stranger, but when this proceeding is instituted in the name of the people it loses its conclusive character and becomes only prima facie evidence of the right." Brightly's Leading Cases on Elections, p. 435, quoting from People v. Cook, 8 N. Y. 67, 59 Am. Dec. 451. See, also, McCrary on Elections, § 374. More-ed. The real purpose of the legislation here over, in this case, the borough council did not refuse to receive the relator because he had not presented a proper certificate of election, but for quite a different reason, as we shall indicate in the next paragraph of this opin ion. The latter part of this rule governs in the present case; for, admittedly, the relator "got rid of his disqualification" before the court ordered the borough council to accept his oath and permit him to exercise the duties of the office to which he had been elect in question is to prevent one in public place from, directly or indirectly, being personally interested in contracts which he may have to pass upon officially, in other words, to forbid his occupying positions in any sense incompatible; but, in this connection, we said in Com. v. Pyle, supra: "A man may hold one office after he has been chosen to another which is incompatible with it, without thereby forfeiting either of them, provided he resigns the first before he enters upon the duties of the last." See, also, De Turk v. Com., 129 Pa. 151, 18 Atl. 757, 5 L. R. A. 853, 15 Am. St. Rep. 705. [5, 6] The fifth complaint raises a most important point, and, for purposes of its determination, we shall assume that the relator at the time of his election was a stockholder in a company which held a contract with the borough; further that he continued as such until immediately before the filing of his replication, when, the proofs show, he bona fide parted with this stock. It appears, The learned court below properly ruled the however, that, when Mr. Gast asked admis-point under discussion in favor of the resion to the council, he was not refused be-lator. cause of his interest in this company, but spe- [7] There remains but one other matter to cifically upon the ground that the place he claimed was already filled; further, that the council had elected the respondent, Mr. Kelly, to this place in December, 1915, because, in its opinion, no vacancy had existed in November, when Mr. Gast was elected. These being the undisputed facts, it becomes necessary to decide whether or not the action of the relator, in bona fide parting with the stock in question, prior to the order of court seating him as a member of the borough council, was sufficient in law to qualify him for admission to that body. Act March 31, 1860 (P. L. 382) § 66, provides: * "It shall not be lawful for any councilman to be * * * in any wise interested in any contract for the sale or furnishing of any supplies for the use of any municipality 串 ** * * shall be a member. * lating these provisions his * * office guilty of a misdemeanor." * * * of which he Any person vioshall forfeit and shall be Act May 28, 1907 (P. L. 262), provides: "That it shall not be lawful for any member of council of any borough be in any way interested, either directly or indirectly, in any contract for the sale or furnishing of any supplies for the use of such borough nor shall any such member of council * * * be a * of any * stockholder * corporation * * in any way interested in any [such] contract; and any person violating these provisions shall forfeit and also shall be guilty of be considered, and that is: Did the removal of Dr. Goodrich from the borough create a vacancy in the office occupied by him? The doctor not only transferred his office and home beyond the borough limits, but filed a notice, in the form of an affidavit, with the local authorities, certifying, in effect, that he had permanently left McKees Rocks and surrendered his office of councilman. Although the act of 1915, supra, does not specifically provide that the removal of a councilman from the borough shall leave a vacancy in the office occupied by him, yet the facts at bar show an actual abandonment of this particular office which, undoubtedly, created a vacancy. In this respect the present case is quite different from those relied upon by the appellant, where, in point of fact, there was no vacancy, or where, under the peculiar circumstances before us, we held that the vacancy in question did not occur until a formally tendered written resignation had been duly accepted. As truly said by the learned court below: "A vacancy created by removal from the borough is totally unlike that arising from resignation; the first arises instantly from the act of removal; the latter only by acceptance by council. Com. v. Clark, 249 Pa. 109, 94 Atl. 473, and Com. v. Krapf, 249 Pa. 81, 94 Atl. 553, are cases of resignation and have no application here." The same may be said of Com. ex rel. v. James, 214 Pa. 319, 63 Atl. 743, where there was no vacancy to be filled. Some of the assignments of error filed in |