incident to particular land. Whether a privi-, I see any material significance in the fact lege is a personal right or is appurtenant to that, in this particular instance, the easesome estate, and therefore an easement, is determined by a fair interpretation of the instrument creating it, aided, if necessary, by the situation of the property and the surrounding circumstances."

See Id., §§ 28, 47.

Thus it may be seen that the right created in the grantor by the deed from A. to B. has all the attributes of an easement appurtenant to the mineral estate vested in the former. It is an incorporeal right. attached to corporeal property, and, when brought into legal existence, generally speaking, it would pass upon a conveyance of the latter under the general description of "appurtenances." Id., § 20 et seq., and cases hereinbefore cited.

ment happens to be appurtenant only to the mineral estate underlying certain portions of the surface of the property covered by the grant. Where one is the owner of an entire property, both the surface and underlying estates, of necessity no easement, either of the right of support or the right to let down the surface, can exist; for such incorporeal rights can be brought into being only upon a severance of the one estate from the other (Jones on Easements, §§ 24, 597, and 835; Kieffer v. Imhoff, 26 Pa. 438, 442; Coleman's App., 62 Pa. 252, 274; Zerbey v. Allan, 215 Pa. 383, 387, 64 Atl. 587; Capron v. Greenway, 74 Md. 289, 293, 22 Atl. 269), and then, if of the latter character, the right must be expressly and plainly granted. Here the grant under discussion, i. e., the deed from A. to C., transferred the mineral estate under a large tract of land, of which the lot previously conveyed to B. formed but a small part, and it is plain that this deed did not grant to C. the right to let down the surface of any land where an easement to that effect had not previously been created, for the words of the instrument did not expressly confer the right so to do; but it is equally plain that where such a right already existed it was an easement appurtenant to the

with. The judgment entered by the court below rests upon the theory that, since the deed from A. to C. did not expressly give the right to let down the surface of all the property conveyed, it could not pass an easement previously created to disturb the surface of a particular portion thereof; but, as I have endeavored to show, this position is not in accord with the relevant rules of law, and no authority has been cited which either directly or by necessary implication sustains it.

While it is well established that a right in the owner of the mineral estate to let down the surface will "not be implied from language that does not necessarily import it" (Id., § 599; Pennsylvania cases already cited), yet we find no ruling anywhere to the effect that, after such right has been created by apt and sufficient language, and vested in the owner of the mineral estate, it will not pass upon a conveyance of that estate like every other easement appurtenant thereto, particularly when, as in the present instance, the deed contains full and explicit language sufficient to include all appurtenanc-estate conveyed and, as such, it passed therees of every kind and description. A right of the character of the one with which we are dealing, when properly created, adheres to the estate for whose benefit it was brought into existence, the same as covenants running with the land (Scranton v. Phillips, 94 Pa. 15, 23), and, in order so to do, it need only be convenient, not necessary or essential, to the enjoyment of the dominant estate (Zell v. Universalist Society, 119 Pa. 390, 402, 13 Atl. 447, 4 Am. St. Rep. 654; Manbeck v. Jones, 190 Pa. 171, 173, 42 Atl. 536; Hunstock v. Limburger, 115 S. W. 327, 329; Dority v. Dunning, 78 Me. 381, 6 Atl. 6; Cihak v. Klekr, 117 Ill. 643, 653, 7 N. E. 111; Pettingill v. Porter et al., 8 Allen [99 Mass.] 1, 85 Am. Dec. 671. See, also, Jones on Easements, § 29). To my mind, clearly, the right to let down the surface, retained in 1873 by A., vested in an easement appurtenant to the mineral estate (Jones on Easements, § 90), and this passed under the general terms of its subsequent conveyance to C.; hence A. could not afterwards deal therewith, and its deed purporting so to do necessarily failed of that effect.

I see no merit in the contention that because a grant of the coal, without more, does not confer a right to disturb the surface of the overlying estate, therefore such a grant could under no circumstances be held to pass a previously created right, or easement, so to do, even where, as in this case, the right to let down the surface had been appurtenant to the mineral estate for a period of 18

Graff Furnace Co. v. Scranton Coal Co., supra, in no sense rules the present appeal. In that case there was no question of a previously existing easement appurtenant to the estate granted. The Graff Case was a proceeding in equity to restrain the owner of the underlying mineral estate from disturbing the plaintiff's land. The surface of the lot there in controversy overlaid part of the coal conveyed by the deed from A. to C., referred to in the present case. After disposing of its mineral estate to C., A. sold and conveyed to a certain predecessor in title of the plaintiff in the Graff Case the lot there in question, "excepting and reserving" the minerals underneath the same, with the right to mine without incurring liability for injury to the surface; this exception being made expressly for the benefit of the grantor and also of "all persons who may have derived title to said coal ✦✦ from the party of the first part [the grantor]." In dismissing the bill, we ruled that the words of this latter deed were controlling, that the

port governed, and that it was not necessary leges granted in this ordinance the said George to determine in whom that right was vest-Westinghouse, Jr., and his assigns agree to fured, so long as it was apparent that it did nish to the city of Pittsburgh, free of cost and expense, all the natural gas necessary for fuel not vest in the plaintiff. In the course of for the buildings of the police, fire, markets and the opinion, however, this significant pas-city property departments so long as said pipes shall be in use, the city of Pittsburgh to make sage occurs: all necessary connections at its own proper cost and expense."

"The owner of the entire estate may likewise grant the surface of the land and reserve the mineral estate with the right to mine and remove it without liability for any injury or damage done to the surface, and in such case the grantor or those claiming through him may mine and remove all the coal without being compelled to support the surface."

In the case at bar, the present owner of the coal is one claiming through such a grantor as just described; and I cannot agree that the latter, when it stipulated for the right to let down the surface, became a mere licensee of its grantee. One may have a license conferred upon him, but I know of no authority which holds that a grantor of real estate may by words inserted in his own deed retain or confer a license upon himself, in or over the subject-matter conveyed; although, of course, it is well established that he may thus create an easement. For the reasons stated, I mark my dissent.

burgh was under the control of council and ad- ́ Third. The administration of the city of Pittsministered by that body through its various committees, except as to the fire department, which and under the control of council; and of these was administered by a commission created by committees were the police committee, the markets committee, and the city property committee. Fourth. The markets committee had under its control all the markets and market houses of the city of Pittsburgh.

Fifth. The fire department had under its control all the engine houses and any other building necessary for the operation of the fire depart

ment.

Sixth. The police committee had lost control of the buildings necessary for the operation of the police department by the ordinance of March 12, 1884, the control going to the city property committee; but, in fact, the police committee still exercised the control over the station houses, and the only public building that the city property committee controlled was the city hall.

Seventh. The board of health of the city of Pittsburgh owned the property which is now STEWART, J., joins in the above dissent. known as the Municipal Hospital, which it had

(256 Pa. 492)

CITY OF PITTSBURGH v. EQUITABLE

GAS CO.

(Supreme Court of Pennsylvania. Feb. 19,
1917.)

GAS 12-CONSTRUCTION OF FRANCHISE
FURNISHING GAS TO CITY.

Under an ordinance granting a franchise to lay gas pipes, in consideration of which the holder and its assigns should furnish the city free of cost all the natural gas necessary for fuel for the buildings of the police, fire, markets, and city property departments while the pipes were in use, the successor to the franchise was not required to furnish gas to buildings subsequently constructed by the city and which could not be classified with those under the control of such departments at the time of the passage

of the ordinance.

[Ed. Note.-For other cases, see Gas, Cent. Dig. § 4.]

Appeal from Court of Common Pleas, Allegheny County.

Bill in equity for an injunction by the City of Pittsburgh against the Equitable Gas Company. Decree for defendant, and plaintiff appeals. Affirmed.

Evans, J., filed the following findings of fact and conclusions of law in the court of common pleas:

Findings of Fact.

purchased from William Ward and others by deed dated April 11, 1874.

Eighth. The board of health of the city of Pittsburgh was a body corporate erected by the act of April 8, 1851 (P. L. 587), with power to take and hold all the real estate necessary for the purposes and objects of the corporation.

Ninth. The city of Pittsburgh is not entitled to any gas free of cost for lighting purposes.

Tenth. The city of Pittsburgh has heretofore paid for the gas used for fuel in the buildings and at the places designated in Exhibit A, attached to defendant's answer.

Conclusions of Law.

First. The true meaning of the fourth section of the ordinance of November 13, 1884, granting to George Westinghouse and his assigns the right to occupy the streets and alleys of the city of Pittsburgh for the purpose of laying gas pipes and transporting natural gas is that the buildings of the police department and under the control of the police committee, of the fire department and under the control of the fire comthe control of the market committee, and of the mission, of the markets department and under city property department and under the control of the city property committee, shall be furnished gas for fuel free of cost and expense.

Second. Only such additional buildings as come within the class of buildings of the police, fire, markets and city property departments in 1884, are included in the provision of the fourth use of which the city is entitled to gas free of section of the Westinghouse ordinance, for the

cost.

Third. By the terms of the ordinance of November 13, 1884, the gas company is not bound First. By an ordinance approved the 13th day to furnish gas free of cost to the buildings desigof November, 1884, the city of Pittsburgh grant-nated in the tenth finding of fact. ed to George Westinghouse and his assigns the Fourth. The injunction should be dissolved so right to occupy the streets and alleys of the city far as it affects the right of the defendant to of Pittsburgh for the purpose of laying gas turn off the gas used for light in all the buildpipes therein for the purpose of transporting nat-ings, and so far as it affects the right of the ural gas. defendant to turn off the gas used for fuel or Second. The fourth section of that ordinance light in the buildings designated in the tenth provided: "That in consideration of the privi- finding of fact.

The court on final hearing dissolved a [dent by William Campbell in his own right preliminary injunction which it had granted and as administrator of the estate of Joanna in so far as it affected certain buildings. Campbell, deceased, against the Wells Bros. Plaintiff appealed. Company. From a judgment refusing to take off a compulsory nonsuit, plaintiff appeals. Reversed.

Argued before BROWN, C. J., and MESTREZAT, POTTER, MOSCHZISKER, and WALLING, JJ.

Argued before BROWN, C. J., and MESCharles A. O'Brien, B. J. Jarrett, and Her- TREZAT, POTTER, STEWART, and FRAmann F. Ruoff, all of Pittsburgh, for appel-ZER, JJ. lant. Edwin W. Smith, David A. Reed, and James J. Breen and Mark W. Collet, both Reed, Smith, Shaw & Beal, all of Pittsburgh, of Philadelphia, for appellant. Robert P. for appellee. Shick and Winfield W. Crawford, both of Philadelphia, for appellee.

GENCE.

EXPERTS NEGLI

In such case evidence of expert to show that defendant's method of raising the derrick through the floor of a building was unusual and more dangerous in itself than the customary method was admissible.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2319, 2320.]

3. TRIAL 46(1)-EVIDENCE-FORMAL OFFER. Where a question to a witness does not clearly disclose the purpose of the testimony, counsel should make a formal offer stating the purpose so that the court can rule the question intelligently.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 115.]

MESTREZAT, J. [1] The learned court below was clearly wrong in excluding the testimony offered by the plaintiff to show that the defendant company had not furnished sufficient planks to cover that part of the third floor of the building where the deceas ed and his coemployés, engaged in hoisting the mast of the derrick, were required to work, and the lack of which planks made the place unsafe. The negligence laid in the statement is:

That the defendant "did not furnish to the said Alexander Campbell safe, secure, and proper means for the performance by him of his duties as such employé, but, on the contrary, wholly neglected so to do, and did carelessly and negligently fail to provide proper flooring or covering, either permanent or temporary, at the point on the third floor of said building where the said Alexander Campbell was at the time of said wrongs and injuries, working at the orders and under the direction of said defendant company."

The testimony covered by the first and second assignments was competent to sustain the allegations of the statement. The testimony embraced in the first assignment was not simply the opinion of the witness, as the learned court presumably thought, but direct and positive evidence of the fact that there were not sufficient planks to cover the floor at the place the deceased was working. Welsh, the witness, and the deceased were

4. TRIAL 83(1)-ADMISSION OF EVIDENCE-structural iron workers, and were working OBJECTION.

Objection to testimony by words "objected to" is not to be commended, and counsel should state the reasons for his objection so as to enable the court to rule intelligently on the questions raised.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 193-198, 200-209.]

5. MASTER AND SERVANT 182(1) PRINCIPAL"-STATUTE.

"VICE

An employé in charge of a gang of men in raising a derrick and who personally directed the laying of a planking around the foot of the derrick was a "vice principal" for whose negligence the master was liable within Act June 10, 1907 (P. L. 523), relating to the liability of a master for the negligence of a vice principal.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 371.

together on the third floor of the building in raising the derrick at the time the deceased fell through the open "bay" or panel to the basement and was killed. Welsh described the conditions existing at the foot of the derrick where the men were working, and then testified that there were not sufficient planks to cover the floor at that place. He testified to what he saw, and it was error to reject the evidence.

[2] There are several assignments which, as we understand, were intended to raise the question of the right of the plaintiffs to show that the method used by the defendant in raising the derrick through the third floor was unusual and more dangerous in itself than the customary method. Testimony offered for such purpose was competent and should have been admitted. McGeehan v. Hughes, 223 Pa. 524, 72 Atl. 856; Liptak v. Trespass for the death of plaintiff's dece Kurrie, 244 Pa. 117, 90 Atl. 442. The tes

For other definitions, see Words and Phrases, First and Second Series, Vice Principal.]

Appeal from Court of Common Pleas, Philadelphia County.

timony of experts who have duly qualified | 2. WORDS AND PHRASES "GOVERNOR." themselves to testify is admissible. Kehler A "governor" is a reducing valve that works automatically, so that, no matter how high the pressure comes in one direction, it will be reduced to a standard pressure.

v. Schwenk, 151 Pa. 505, 55 Atl. 130, 31 Am.
St. Rep. 777; Boop v. Laurelton Lumber
Co., 212 Pa. 523, 61 Atl. 1021; Bardsley v.
Gill, 218 Pa. 56, 66 Atl. 1112.

[3] Where a question put to a witness does not clearly disclose the purpose of the testimony, counsel should make a formal offer stating the purpose so that the court can rule the question intelligently. The questions excluded by the court and covered by these assignments may be objectionable in form, and therefore we will not convict the court of error by sustaining these assignments. An expert should be asked his opinion, and not to make a comparison between conditions supposed to be similar in two building operations.

[Ed. Note.-For other definitions, see Words and Phrases, Governor.]

--

ASSIGN

3. APPEAL AND ERROR 743(1)
MENTS OF Error-SuffICIENCY.
Assignments of error which fail to state the

page where the matter referred to is to be found
in the paper book or appendix are defective.
[Ed. Note.-For other cases, see Appeal and
Error, Cent. Dig. § 2999.]

Appeal from Court of Common Pleas, Philadelphia County.

Trespass for damages for personal injury by Harry F. Keeling, Jr., against Harrison Bros. & Co., Incorporated. Verdict for plaintiff for $9,846, and judgment thereon, and defendant appeals. Affirmed.

Argued before MESTREZAT, POTTER, MOSCHZISKER, and FRAZER, JJ.

It will be observed that the learned counsel for the defendant failed in every instance to state the reasons for his objections to the testimony which was excluded and is covered by the several assignments of error. The counsel for the plaintiff requested the court G. Stem, both of Philadelphia, for appellee.

to have the reasons for the objections stated, which the court declined. The objections to all the testimony were made by the counsel simply saying, "Objected to." This prac tice is not to be commended. Counsel should have stated the reasons for his objections

so as to enable the court to rule intelligently on the questions raised.

[4, 5] In his remarks granting the nonsuit the learned court says:

"There is nothing to show that Mecker could be dignified by any such position as that of foreman or vice principal or any officer which would require the men to obey him or do what he said."

Alfred D. Wiler, of Philadelphia, for appellant. John J. McDevitt, Jr., and Samuel

MOSCHZISKER, J. The plaintiff sued to recover for personal injuries. He secured a verdict upon which judgment was entered, and the defendant has appealed.

Harry F. Keeling, Jr., was a general me

chanic in the employ of Harrison Bros. & Co., Incorporated, at their plant in the city of Philadelphia. He worked there about 11 months, left for a short period, and then returned. At the time of the accident he had been back in defendant's service for about 9 weeks. He was 23 years of age when injur ed. The defendant's plant is equipped with an air-pressure system which is used for vaSome of plaintiffs' testimony was excluded rious purposes in the course of the manufacon this theory of the case, and the action ture of chemicals. The pressure therein is of the court is the subject of several assign-maintained at a standard of 80 pounds. One ments of error. These assignments must of the pipes of this system runs through the be sustained. We have carefully examined toolroom in which the plaintiff worked. the testimony, and it was ample, if believed by the jury, to show that Mecker was in charge of the gang of men who were raising the derrick and was present and personally directing the laying of the planking around the foot of the derrick. This brought him within the act of June 10, 1907 (P. L. 523), and his employers are responsible for his negligence.

At

the date of the accident, January 20, 1915, this pipe was equipped with what is known as a "globe valve," or spigot, to turn on and off the flow of compressed air, when used at that point. On the day of the injury there was delivered to the plaintiff what is known as a "ball float," which is a hollow metal sphere approximately 5 or 6 inches in diam

eter and the thickness of a 10 cent piece, similar to the ball float in the water tank of every bathroom. This float had some leaks in it, which the plaintiff was instructed to repair. In order properly to locate them, the plaintiff put some water into the ball and attached the latter to the air pipe. After marking the places where the water was forced out, plaintiff made repairs accordingly. Then, to test the job, he again employed the air pressure, whereupon the ball burst and some hard material struck him in the left eye. As a result, he not only suffered great pain, but has had his sight impaired

to such an extent as entirely to disable him | Mesta Machine Co., 251 Pa. 618, 623, 97 Atl. as a mechanic. 101; Campbell v. Wells Bros. Co., 100 Atl. 1050. Here it is sufficient to say that, on the facts as we must assume them to have been found by the jury, under the law, the verdict was properly sustained; hence the judgment entered thereon will not be disturbed.