The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-03-04

Seven opinions from President Judge
edwards and one from Judge Kelly
were handed down at the opening of
court yesterday morning.
Two of them are given below in full.
In the first, Judge Edwards passes up
on a matter which has been the basis
of many damage suits. In the second,
Judge Kelly makes a decision that a
case stated can not be submitted in
equity proceedings.
Thomas Pickcrc VS.. Borough of Old Forge.
Exceptions to report of referee
While the exceptions in this are numer-
Gus, there are only two that require consid-
Grafton and they were the only exceptions pressed
by counsel at the argument. The first relates to
thc referees refusal to affirm defendants first
law point which was as follows: "That the time
md manner of draining the streets of the munic.
Ipaity requires the exercise of judgment, and by
Wv municipal authorities are vested with the
.,ower OF exercising their judgment. The
duty of exercising is of a judicial and not of
administrative character. Therefore, the in
sufticiency of drainpipe to carry off on all occas.
ions the water flowing towards it will not give
the owner the right of action against the munic-
ipaty, 1t only was a mistake in Judgment
and not negligence on the part of the municipal
ity."
As a proposition Of law, where the facts justify
the application of it, the point is well stated
and is sustained by abundant authority: Fair
W. Philadelphia, SIS Pa. 30S; Pressnan VS.. Dick.
son City, IL Sup. ct. 2S6; and other cases. But
II the case at bar the point is not well taken,
because OF the difference in the facts and circun-
stances OF the case. The evidence shows that
the improvement complained of obstruc-
lion to the flow Of water in natural water
course resulting in the flooding O. the plaintiffs
land after every storm. This is the finding of the
referee and it is supported by abundant testi-
mony Such being the fact the is in the line
OF King vs. Boro., l52 Pa. so, and Riddle VS.. Del
Co., l56 Pa. 6i3
The other exception argued concerns the as.
scssment of damages against the borough of Old
Forge. 1t seems that the borough was incor.
porated May ., 1899 1t was formerly in the
township of Old Forge. Evidence was admitted
as to the overfiowine of defendants land since
1896; but the referee dsaows all damage claimed
before the organization OF the borough. He dis
tinctly finds the amount of damage suffered by
the plaintiff since the township became a bo.
rough. We cannot say, as contended by defend
ants counsel, that the evidence was not suff.
cient to enable the referee 10 ascertain the
amount of damages asSessabe against the DO.
rough. II seems that he has been caeeful on this
point and he has been conservative in his estimate
Of the amount the plaintiff is entitled to recover
We need not discuss the other exceptions The
matters already considered TO raise the only
material questions in the case.
Now, March 3, 1902, all the exceptions are over
ruled and the prothonotary is directed TO enter
judgment in accordance with the recommended
tion Of the referee.
II. NJ, Edwards. P. j.
Michael Collins VS.. Hymon Stone. In EQUITY
Bill for specific performance.
The parties to this action have filed an agree
ment in the form of case stated, in which the
facts agreed to- We can find no authority
for the practice OF submitting n case stated in
equity proceedings, and we therefore refuse TO
decide the question submitted as upon case
lated, However, have before lis the plain.
ihs hill and the defendants answer together
Nith an agreement on the facts SET forth in The
sO-caled stated, and ARD therefore in a
position to dispose of the matter upon the undis-
puted facts, which are:
l. On the 22d day of February, 1897, lIymon
Stone, by articles of agreement agreed to convey
to James W. Gilligan, lot OF land in the town.
ship of Carbondale, Pennsylvania for the price
or consideration OF 800, payable $50 in cash, and
the balance in instalments of $25 OF more every
three months, with interest
q James Gilligan died, ntesate, the 9TH
day OF june 1900, leaving 10 survive him a
minor child, Mary Glligan. At the lime OF his
death there was balance of purchase money due
on the contract of $50.
B. On or about the lst day OF December, 1900,
Ellen Collins, the mother of James Gillgan de-
,eased, paid the said balance due upon the con-
tract TO Iiymon Stone, and thereupon liymon
Stone, joined by his wife, by consent Of Ellen
Collins, executed a deed for the property de-
scribed in the contract, to Mary Gilligan minor
child and heir of james Gilligan.. deceased, and
delivered the same to Ellen Gilligan
4. On the 18th day OF December, 1900, letters
of administration up on the esate-oi James Glli-
gan, deceased, were granted 10 Josephine Gilli-
gan. On the 18th day of February 1901, 10.
sephine Gilligan, admnistratrix, presented her
petition TO the orphans court praying for an
order to make private sale Of the interest Of
James Gilligan, deceased, in the property in
question for the purpose of paying debts of the
deeedent and on the same day the order was
made as prayed for and the property sold to
Michael Collins, tie plaintiff, for 1915 which
sale was duly confirmed and deed delivered to
purchaser by the administrative.
8. Michael Collins. the purchaser thereupon