The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-02-19

The opinions in the eight Backawan-
ma cases. in which decisions were rem
dered by the Superior court at Will
Transport. last Friday, have been re-
ceved by Prothonotary Samuel II.
Stephens
one Of them is of especial interest
because 1t speaks in warm terms of
commendation of the reasonings of the
late lamented Judge F. w. Gunster. 1t
is the opinion of Judge William w.
Porter affirming the decision in the
celebrated line fence case Of Kelly
against Donnelly. and is as follows
The plaintiff and defendant own adjoining lots
upon which houses erected. BY reason OF
the removal OF one OF the houses It became
necessary to construct a portion OF the fence
between the properties. The trial Judge finds
and the court on exceptions confirms the finding
THAT the fence is being built on the line but
in such a manner that the northcrly face of the
posts and rails will he on the mathematical
division line between the lots in question, lcav
ing the posts and rails entirely on Mrs. Kclly's
land, while the southerly face OF the boards to
be put on fence will he on the division line
leaving the boards entirely the DEFENDANTS
land" The result is projection greater
side of the line than the other. This method
Of construction the fence was cnioined. The final
decree OF the court below requires that no fence
shall be constructed by the defendant on the
division line between the lots owned by the
parties which "sllal extend onto the land of the
plaintiff a greater distance than onto the land of
the defendant"
This was clearly right The trial judge has
given to the adjudication containing
not only full findings, but an admirable discus.
sion OF the law. This the court below, after due
hearing on exceptions, has confirmed in an ade-
quatc opinion. Further discussion is therefore,
tl,o
order. Decree affirmed.
CARPENTER AFFIRMED.
The opinion affirming ex-Judge j. W.
Carpenters finding in the case of Levin
against the PAUL. estate is also highly
commendatory in it's comments on the
findings and charge of the trial Judge
This is particularly of interest, mas
much as the attorneys for the appel
liant made q most vigorous, not to say
vicious, attack on the charge.
The opinion is written by Judge
Beaver. 1t first diSmiSses the dues-
ton: whether a tenant who rents
room, with privilege of hall and stairs
for egresS and ingress, and who cove
nants to repair is estopped from MAIN
tanning an action against his landlord
for injuries received from the stairs
being out of repair?' Judge Beaver
says on this point:
The question thus stated is not sufficiently full
in view oil the facts of the case. The real ques
tons is: "Can one OF several tenants, who claim
under separate leases and use common stair
way, recover in an action against his landlord
for injuries resulting from the said stairway be-
ing out of repair"' II the plaintiff had been the
sole occupant OF the second and third floors,
which We're reached by the common stairway,
there would. undoubtedly, he force in the ap.
pellants argument: but the landlord, being under
obligations to furnish the means OF ingreSs and
cgress by means OF the stairway, was bound to
keep the same in proper repair
Any other view of the respective rights of the
landlord and tenants would lead to confusion
and uncertainty. and would place the response
biliy for the maintenance Of the stairway prac-
tically nowhere.
Regarding the allegation of the ap-
pellant, that there was no evidence
that the break in the stairway was the
proximate cause of the accident. Judge
Beaver. after quoting Indge Carpen-
ters charge on this point, says:
4 careful reading Of the cvidence satisfies
that the proNimate cause OF the injury could
readily be inferred by the jury from the condi-
tions which prevailed and the circumstances sur.
rounding the plaintiff at the time OF the injury,
as detailed by the witnesses who testified as to
the condition OF the stairway, and this was fairly
submitted for their hnding
CASE WAS WE'LL TRIED.
AS to the allegation that the charge
of the trial Judge was Inadequate and
did not properly present the defend
ants side of the case, Judge Beaver
saws: THE case was we'll tried. The
charge of the court was clear. hde-
ouate, full and satisfactory. We find
nothing in il of which the defendant