established and opened before there was any severance of the surface from the subsurface property in the vicinity where it is located. At long intervals there have been some surface subsidence, upon and near said avenue, the most notable of which was in January, 1915, when there occurred a decided settlement amounting to about 3 feet in a portion of said avenue located some 200 feet south of the Simpson Methodist Church lot. This made a marked change in the grade of the street, did some damage to sidewalks and the buildings on abutting property, and required a change of location of one or more catch-basins. It did not, however, cause any suspension of traffic on said avenue. Such subsidence seems to have resulted from what is called a squeezing of the pillars in the new county vein, and as a result of the mining done there by the defendant prior to 1906. On account of that, and other operations in the mines years ago, it is expected that additional surface subsidences will hereafter result, without reference to any present mining operations. Apparently, the best method of avoiding such subsidences is to fill the existing voids in the mines by an expensive and protracted system of packing and flushing. The court below approved the findings of the chancellor to the effect that the operations in the surface veins had nothing whatever to do with the subsidences above re ferred to; and that at least 50 per cent. of the coal could be removed from the surface veins, underneath the avenue, without in any manner endangering the same; and that in removing the coal from the veins outside of the limits of the avenue it was not shown to be necessary to make any allowance for its lateral support. In the final decree the court below refused the injunction restraining defendant from the mining of coal under and adjacent to the avenue, but retained the bill to secure compliance with certain restrictions and specifications in said decree provided. [1, 2] The title of property abutting on a public street extends to the center of the street, and the owner thereof is entitled to all minerals therein, with the right of removal so long as he leaves the street intact. "The soil and any mineral deposits within the limits of the highway belong to the owner of the fee, and he is entitled to remove them so long as he does not interfere with the public use of the highway." American & English Encyclopedia of Law (2d Ed.) vol. 15, p. 418. [3-5] But the abutting owner cannot remove minerals from under or adjacent to an established highway in such manner as to cause a subsidence or other injury thereto; and to do so is a nuisance, which in a clear case will be restrained in equity at the suit of the municipality. A street is entitled to such support as will keep it in place, both lateral and vertical. If the removal of coal at the side or underneath will destroy the street, it may not be done. But such coal may be removed to any amount that will not injure the highway. And the amount that may be so removed is a matter of fact. Here the chancellor finds that 50 per cent. may be safely taken from under the avenue and so decrees. The defendant's operation in the mining of coal on its own premises, outside of the bounds of the highway, is certainly prima facie lawful, and the burden is on the plaintiff to show wherein such act will injure the avenue. The chancellor and court below find in effect that the evidence fails to establish plaintiff's contention that to save the avenue from subsidence the coal in the adjacent property must be left in place for lateral support and also find that such contention is speculative and not based on facts. The chancellor had the advantage of seeing the witnesses and the maps, etc., and, with counsel, visited the mines in question, and had a better opportunity than this court of ascertaining the real conditions; and, as his findings were approved by the court below and have the conclusiveness of the verdict of a jury, we cannot say such findings are so manifestly wrong as to justify setting them aside. If the removal of coal causes such a sub sidence in a public street as to constitute a nuisance therein, it is no defense that the mining is skillfully done. An encroachment upon a highway is an invasion of public rights and cannot be sustained upon any theory of weighing the advantages and disadwhere there is a severance of the surface vantages of the respective parties; and, from the subsurface, an established highway is entitled to the support of both. A city may go underneath the surface of its streets for the construction of pipe lines, conduits, etc., and for any other lawful municipal purpose. The question of a mandatory injunction does not seem to be properly raised by the pleadings, or by the statement of the questions involved, and we refrain from discussing it. The court below, while refusing to grant the injunction prayed for, retained the bill for certain purposes looking to the protection of the public; we cannot say that error was thereby committed. Should necessity require further proceedings, the matter is still in the hands of the court below. The assignments of error are overruled, and the decree is affirmed. (256 Pa. 328) COMMONWEALTH ex rel. KEATOR et al. v. ever, are reserved to the grantors with the right CLEARVIEW COAL CO. (Supreme Court of Pennsylvania. Jan. 22, 1917.) 1. NUISANCE 64-PUBLIC NUISANCE-REMOVAL OF COAL IN PLACE INJUNCTION. Where a deed conveying underlying coal expressly waived the right of surface support, the grantee's removal of the coal in a lawful manner could not constitute a public nuisance, such as would be restrained in equity. [Ed. Note. For other cases, see Nuisance, Cent. Dig. § 138.] 2. EMINENT DOMAIN 69-TAKING OF PRI VATE PROPERTY-COMPENSATION. Where the surface of coal land was conveyed to a school district by deed expressly waiving the right of surface support, the subsequent mining of the coal under the surface to the injury of a school building would not be enjoined, as to do so would be a taking of private property for public use without compensation. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 171-179.] 3. EMINENT DOMAIN 18 SUPPORT FOR SCHOOL DISTRICT-CONDEMNATION BY DISTRICT. A school district whose school building stood upon coal land, as to which the right of surface support had been expressly waived, might, under its right to eminent domain, obtain such underlying coal as might be necessary to support the building. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 55, 87, 88.] Appeal from Court of Common Pleas, Lackawanna County. Bill in equity by the Commonwealth, on the relation of John D. Keator and another, against the Clearview Coal Company, to enjoin defendant from mining coal under a public school building. Bill dismissed on final hearing, and plaintiffs appeal. Affirmed. Argued before MESTREZAT, POTTER, MOSCHZISKER, FRAZER, and WALLING, JJ. George Wharton Pepper, of Philadelphia, and James E. Davis, of Scranton, for appellants. Ralph W. Rymer and M. J. Martin, both of Scranton, for appellee. "All coal and minerals under said lots, howto mine and remove the same without incurring in any way liability for any damage to the surface of said lots, or to any buildings or improvements which may be or have been placed thereon." And in one deed the following clause was added: "And the grantee covenants and agrees to accept the conveyance of this land, subject to the above exceptions, reservations and conditions, waiving support of the surface." This land was underlaid with 11 separate Veins of coal located at varying depths from the surface. The entire Robinson tract contains 26 acres, and adjoining the same is a piece of land known as the Earl & Griffith tract. Prior to the purchase of the lots by the school district, certain portions of the coal in said tracts had been leased to third parties and some mining thereof had been done. Subsequently in 1909 defendant obtained general leases of the coal under said tracts, authorizing and requiring it in substance to remove all the available coal remaining in the tracts. At large expense it sank a shaft and made all necessary preparations to successfully and skillfully carry on mining operations, which it proceeded to do, and removed and was removing the coal without providing adequate surface supports; and in 1914, when such operations had reached the vicinity of said building and caused it serious injury, this suit was brought. At about the same time the use of the building for school purposes was abandoned the pupils there attending were sent to other schools, which resulted in overcrowding and less school efficiency. After full hearing the court below dismissed the bill. and [1, 2] The school district in the purchase of the land expressly waived the right of surface support and perhaps unfortunately erected its building where the title to all the coal and the right to remove it was in another. So far as appears there was neither fraud nor concealment. The mining of coal is lawful; and, where, as in this case, the right to surface support is expressly waived, it is lawful to remove all of the coal; and it is difficult to understand how the doing of a lawful act in a lawful manner can constitute such a public nuisance as will be restrained in equity. For practical purposes, the right to coal consists in the right to mine it. An order of court that the coal or any part of it must remain permanently unmined as a support to the school building practically takes such coal from defendant and vests it in the school district. It would in effect be a taking of private property for public use without compensation, which the Constitution forbids. WALLING, J. By permission of the Attorney General, this bill was filed in the name of the commonwealth, at the relation of two citizens and taxpayers of the school district of the city of Scranton, to restrain the Clearview Coal Company, defendant, from mining coal under and adjacent to a public school building, to the injury thereof and alleged prejudice of the public school system of the district. The building in question, known as school No. 40, contains 16 rooms, accommodating 637 students, and is situate in the second ward of the city; it was erected in 1902 on lots purchased by the district from the Robinson heirs by contract in 1896 and Unmined coal is real estate, and the school consummated by deeds in 1900. Both the district under its right of eminent domain contract and deeds contain reservations of by paying for the same can take all of the coal and minerals in the following terms: coal in question which may be necessary to CONTRACT 90 support its building. Certainly the school | 4. SCHOOLS AND SCHOOL DISTRICTS district cannot directly take such property ILLEGALITY - PRESUMPTION OF without compensation to the owner, neither can it do so indirectly under the police power of the commonwealth. [3] It is only in rare cases of overwhelming necessity that private property may be taken or destroyed for the public good. It may sometimes be done, for example, by the destruction of a building to stay the spread of a great fire or of a disastrous flood. But this is not such a case. And it makes no difference that other school buildings are similarly situated. If the school district of a city were to erect a system of public schools upon leased ground, you could not at the expiration of the lease defeat the lessor's right of re-entry on the ground that to do so would cause irreparable injury to the public schools. The primary obligation of furnishing adequate school buildings rests upon the district, and if any are found to be without surface support, or upon leased premises, the district must under existing laws supply the deficiency, by condemnation or otherwise. The assignments of error are overruled, and the decree is affirmed. (256 Pa. 281) KREUSLER v. SCHOOL DIST. OF THE BOROUGH OF McKEES ROCKS. 86(2)- (Supreme Court of Pennsylvania. Jan. 8, 1917.) contract. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 203-205.] 2. SCHOOLS AND SCHOOL DISTRICTS ~~82(1)— CONTRACT-INVALIDITY-CONSTRUCTIVE AND ACTUAL NOTICE. Where a contract for the erection of a school building was entered into in June, and the contractor was notified by taxpayers before the work was begun that the contract was illegal, and bill for injunction was filed in July, and he continued the work until enjoined in November, he had not only constructive, but actual, notice of the invalidity of the contract. Where a contract with a school board to erect a school building offends the constitutional inhibition as to the district's indebtedness, the contractor cannot allege ignorance of its indebtedness and is presumed to know that the contract is illegal and unenforceable. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. $8 209, 211-213.] Appeal from Court of Common Pleas, Allegheny County. Assumpsit on implied contract for construction of school building by H. L. Kreusler against the School District of the Borough of McKees Rocks. Judgment and verdict for plaintiff on one claim, and judgment for de fendant non obstante veredicto as to another claim, and plaintiff and defendant appeal. Affirmed. The facts appear in the following opinion of Swearingen, J., in the court of common pleas: Two separate claims are embraced in this suit: First, the plaintiff seeks to recover the value of work done upon and materials furnished for a school building; and, second, the value of certain repairs to the foundation of said building, which foundation had been built by another party. At the trial there was no real dispute about the amount of the claim, but the right to recover for the first was denied, and as to the second the contention was that a payment of $10,200 should be credited to it instead of to the first, thus leaving nothing due the plaintiff at all. The jury, under instructions, found a verdict for the plaintiff, stating each amount separately, so that we might determine the several questions of law upon this motion for judgment non obstante veredicto, and thus end the whole controversy. First Claim. June 9, 1908, the school board of the district of McKees Rocks entered into written contract with Henry L. Krcusler whereby he undertook the construction of the superstructure of a school building, for which he was to be paid the sum of $148,970, 85 per cent. thereof in monthly estimates as the work progressed, and the remainder within 30 days after completion. Before anything was done under the agreement, certain taxpayers of the district notified the school board and the contractor not to proceed with the work, because no provision had been made for increasing the indebtedness of the district by submitting the same to a vote of the electors, and further that an application for an injunction would be made in case the notice was disregarded. This notice was served upon the contractor and the school board July 6, 1908. Thereafter a bill in equity was filed by taxpayers, in which it was alleged that the amount of this contract was in excess of 2 per cent. of the assessed valuation of property within the dis82(1)-trict, and that therefore the board had no power to incur such a debt without having first obtained the consent of the electors, which admittedly had not been sought. The prayers were, inter alia, for a decree declaring the contract void and for an injunction restraining its perforinance. Henry L. Kreusler, this plaintiff, was made a party defendant, and service of the bill was had on July 20, 1908. Then a supplemental agreement between the plaintiff and the school board was made July 27, 1908, wherein it was provided that no indebtedness should be created by the contract of June 9, 1908, beyond the ex [Ed. Note. For other cases, sec Schools and School Districts, Cent. Dig. § 197.] 3. SCHOOLS AND SCHOOL DISTRICTS ILLEGAL CONTRACTS-SET-OFF. Where certain work was done under a valid agreement with a school board, made after an illegal contract for the erection of the superstructure of the school building, the school board's claim to set off a sum paid the contractor for work done on the superstructure was properly refused, as it was paid under an illegal contract, and as the law in such case would leave the parties where it found them. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 197.] tent of funds "legally available" therefor, but there was no reduction in the amount of the obligation of the contract. The bill was answered by defendants, and the cause came on for trial. November 10, 1908, the findings of fact and conclusions of law were filed, in which it was found that the indebtedness created by said contract was very largely in excess of 2 per cent. of the assessed valuation of property within the district. The contract was therefore held void, and an injunction was directed restraining its performance. Exceptions filed by the defendants were overruled, and March 12, 1909, the final decrce was entered in accordance with the decision. The defendants appealed to the Supreme Court, where the decree of the common pleas was affirmed. McKinnon v. Mertz, 225 Pa. 85, 73 Atl. 1011. The building was never completed, nor was any use made of what the plaintiff put in place. After service of the bill as aforesaid, the contractor began the work of constructing said superstructure about August 1, 1908. He did not suspend operations until the entry of the final decree. During the period mentioned the building was erected to about the floor of the first story, including the interior walls in the basement, and a large amount of material was delivered upon the lot to be used later. To the value thereof there were added 4 per cent. for overhead charges and 10 per cent. for profit, as shown in the amended statement of claim. Meantime, on August 5, 1908, the school board had paid Mr. Kreusler the sum of $10,200 in cach. The balance and the interest thereon constitute the first item of the verdict, to wit, $49,889.36. of the law is not sufficient. His is not a case where the district obtained this work and these materials by fraud or device or by violation of his rights, in which event the law will impose a duty of payment enforceable in form ex contractu, regardless of the intention of the parties. Such an obligation is sometimes designated a "constructive" contract. It is nothing but a fiction, adopted under circumstances above noted to prevent wrong. But it lacks the element of intention to enter into an agreement, which is essential to any contract whether express or implied. Hence this theory will not avail the plaintiff. What the plaintiff is obliged to show is an implied contract, that is, one which is inferred to exist from the facts and circumstances; and these he must prove with the same certainty as he would be required to do in case the arrangement had been expressly made. An intention to contract must appear. The distinction between constructive contracts, so called, and implied contracts is clearly stated in Hertzog v. Hertzog, 29 Pa. 465. But the plaintiff has entirely failed to establish any such implied contract with the school district. There was no evidence whatever of any request to him by the school board to do this work and furnish these materials, other than that contained in the writing of June 9, 1908. It was not pretended that there was any action taken by the school board looking to any employment of the plaintiff other than that of said specific agreement. All we have is that the plaintiff did this work and furnished these mahimself testified that what he did was under the terials upon land of the school district. But he illegal agreement, and not otherwise; and there is no doubt that such was the fact. Consequently no facts or circumstances are present from which a contract can be inferred. And if none can be inferred, the case presented has no foundation upon which to rest. It is therefore of and materials furnished was within the conno importance that the value of the work done tiff nor the board intended to be bound otherwise than by the writing. That was void from the beginning and was incapable of ratification. We know of no hypothesis whereby it can become valid in part, so as to supply the basis of school district responsible for what was not conan implied agreement, and thus render the templated by either party. This results in no legal hardship upon the plaintiff. He was dealing with a school district, and was obliged to take notice of the limitation of the powers of the board of directors, because those are prescribed by public law. The work the plaintiff did and the materials he furnished were under and pursuant to the written contract of June 9, 1908. He himself testified at the trial as follows: "Q. All the work you did on that superstructure was done under that instrument, or contract, was it not? A. With the exception of the reinforcing Q. I say, all the work you did on the superstructracting power of the board. Neither the plainture? A. Yes, sir. Q. All the work you did on the superstructure was done under that contract? A. Yes, sir." And there was other evidence to the same effect, and none to the contrary. The contract under which the plaintiff did this work and furnished these materials was illegal; it was not merely ultra vires; it was in violation of public law. Our Constitution has ex pressly deprived school districts of the power of increasing debt beyond 2 per cent. of the assessed valuation of property within the same, unless by consent of the electors. Article 9, § 8. Therefore, when this school board undertook of its own motion to incur a greater indebtedness, its action, being in direct violation of constitutional law, was absolutely void. Seylar v. Carson, 69 Pa. 81. And this has already been determined. McKinnon v. Mertz, supra. But when did this illegality of the contract arise? Manifestly at its very inception, because the board was attempting to perform a prohibited act. To what extent was it void? Certainly in its entirety, not merely partly, but wholly. It therefore cannot form the basis of any right of action, either directly as upon the instrument or impliedly as upon a quantum meruit. Pittsburg v. Goshorn, 230 Pa. 212, 79 Atl. 505. Since the plaintiff cannot recover upon the written instrument, which he admits, yet he contends that he can recover the value of the work done and materials furnished by him as upon a quantum meruit, and he bases his demand upon the proposition that the amount so claimed does not exceed the limit of the school board's power to contract indebtedness, and that therefore the district is liable; it having received the benefits. Is the principle thus invoked applicable to the facts and circumstances disclosed in this record? To succeed the plaintiff must establish contractual relations with the district; a mere fiction law that all persons contracting with a munici"It is a general and fundamental principle of pal corporation must at their peril inquire into the statutory power of the corporation or of its officers to make a contract; and a contract beyond the scope of the corporate power granted or conferred by the Legislature expressly, or by fair implication, is void, although it be under the seal of the corporation." 2 Dillon on Mun. Corps. § 777 (5th Ed.). We therefore hold, upon principle, that the plaintiff was charged with notice of the invalidBut the facts conclusively ity of this contract. show that the plaintiff is not in position to complain of the action now taken by the school district. Before he did any work or furnished any materials, he was expressly notified that the contract was illegal. Notwithstanding this information, he proceeded to do the work and furnish the materials for which he now seeks to hold the district liable. The slightest inquiry on his part, which we hold he was bound to make in any event, would have disclosed that the school board was utterly powerless to bind the district by the contract made with him. He need not have expended a dollar of the money that he now claims. It follows that his present situation is of his own making, and that without | pears by the cases cited, but we think the any fault on the part of the defendant. In view of the foregoing we are of opinion, that the plaintiff cannot have judgment against the defendant for the first item of the verdict. Second Claim. After the contract for the erection of the superstructure was made, the plaintiff was authorized to reinforce the foundation which had already been constructed. This was an entirely separate arrangement. The plaintiff did the work and furnished the materials, and the amount claimed therefor, with interest, constitutes the second item of the verdict, to wit, $11,746.55. The amount of this contract was clearly within the limit of the board's authority. There was no dispute at the trial as to the amount. The evidence was sufficient to establish the employment of plaintiff by the board, and there was no evidence to the contrary. The defendant contends, however, that the plaintiff was paid $10,200 illegally, and that said sum can now be set off against his lawful demand for the value of the repairs to the foundation. In view of the decision in Pittsburgh v. Goshorn, supra, we are of opinion that this po sition is not well taken. This money was paid It conclusion of the learned court below that under the facts and circumstances of this case there can be no recovery for work and materials furnished under such contract in an action of assumpsit on an implied contract is sustainable on principle and is supported by well-considered decisions in many jurisdictions. McKinnon V. After the [1, 2] The action is assumpsit on an implied contract for the value of work done and materials furnished towards the construction of a superstructure of a school building for the defendant school district and for repairs made on the foundation of the building which had been built by another party. The parties entered into a written contract for the erection of the superstructure of the building, but on a taxpayers' bill the court held that the contract created an indebtedness in excess of the constitutional limit, and was therefore void and of no effect, and an injunction was awarded reto Mr. Kreusler on his written contract. was apparently paid without any actual intent straining its performance. to defraud the district. But, having been paid Mertz, 225 Pa. 85, 73 Atl. 1011. upon an illegal contract, the law leaves the contract was made in June, 1908, the plainparties just in the condition in which it finds them." Clearly the defendant has its action tiff began work and continued operations unagainst the school board, which unlawfully di- til he was enjoined, in the early part of the This following November, by the final decree of verted the money intrusted to its carc. claim cannot therefore be set off against the the common pleas. In the meantime, howjust claim of the plaintiff for repairing the founWe therefore ever, he was notified by an association of dation of the school building. hold that the plaintiff is entitled to judgment taxpayers that the contract was within the for the value of his work and materials in reconstitutional inhibition and not to proceed pairing the foundation of said building, to wit, with the work, and later, on July 21st, the bill was filed by taxpayers to enjoin the Verdict for plaintiff for $61,635.91, made carrying out of the contract for the construcThe plaintiff up as follows: (1) $49,889.36 for work done tion of the school building. in construction of superstructure, after de- therefore had at least not only constructive ducting a payment of $10,200 made by school notice of the invalidity of the contract, but district out of funds of school district; (2) also express notice by the taxpayers of the The district that it was illegal, and not to pro$11,746.55 for reinforcing foundation. ceed with the work. He also disregarded the notice contained in the bill filed to enjoin him from doing the work under the contract. The building was never completed, nor has the defendant used the material put in place by the plaintiff. In this action he claims to recover as upon a quantum meruit the value of the work and materials furnished during the time he was engaged in the operation on the ground that the defendant received the benefit of the work and materials, and the amount claimed is within the constitutional limit authorizing the school district to incur an indebtedness. the second item of the verdict. court entered judgment for defendant n. o. v. as to the first item of the verdict, and sustained the entry of judgment on the second item of the verdict. Plaintiff and defendant both appealed. MOSCHZIS Argued before BROWN, C. J., and MES- R. A. Balph and James Balph, both of Pittsburgh, for plaintiff. Samuel S. Mehard and Garnet R. Speer, both of Pittsburgh, for defendant. MESTREZAT, J. These are cross-appeals from the same judgment, and will be considered together. We have examined the numerous authorities cited by counsel in both appeals, and are not convinced that the conclusion of the learned judge of the court below is not correct. His opinion so clearly vindicates the judgment he entered that the discussion here will be only an amplification of the reasons he has so well stated. We are aware of the conflict of authority in the different jurisdictions on the right of a contractor to recover money expended or property delivered under a void contract, as ap We do not agree with plaintiff's counsel that he can recover his claim in an action on an implied contract. The contract of 1908 was ultra vires the school board and against the policy of the state. The only authentic admissible evidence of public policy of a state on any given subject is its Constitution, laws, and judicial decisions, and the public policy of a state of which courts take notice and to which they give effect must be decided from those sources. the state has spoken through its Legislature, there is no room for speculation as to what Where |