Kitchen v. Smith , 1882 Pa. LEXIS 281 ( 1882 )

Mr. Justice Trunkey

delivered the opinion of the court, December 30th 1882.

Assuming that the execution of the lease was not properly proved, and that, if proved, it should have been received as evidence of the covenants of both lessor and lessee, the- error in admitting it was harmless. In adducing the’testimony that followed, in the points submitted and in the charge of the court, the lease was treated as in evidence for each party, for all purposes where pertinent to the issue; and in this court it was virtually conceded the lease was genuine. The qualified admission was in response to the defendants’ objection. They could have removed the qualification by withdrawing opposition, and as to that they have no ground for complaint. But the lease was admissible upon the testimony of Whitehill. When a private writing is not directly in issue, but comes incidentally in question, its execution may be proved by any competent testimony, without calling the subscribing witness. The plaintiffs’ claim was the amount of taxes they had been compelled to pay, although assessed on land owned by the defendants. One of the incidents in their case was the relationship of landlord and tenant. This was not proved by the lease alone; but by that and other evidence. They did not need the lease to show the landowner’s liability for the taxes, for the landlord is liable, unless the lease obligates the tenant to pay them. Their claim was founded upon a payment of taxes which the defendants ought to have paid, and any fact showing it was not a voluntary payment was an incident. The lease was admitted on the testimony of the lessor, and no question is raised respecting the sufficiency of the certificate of probate by the subscribing witness.

It appeal’s by the record that all the testimony which was received, was submitted, as if there had been no questions reserved respecting its admissibility. Practically, that disposed of the reservations. After the verdict, to have ruled any testimony incompetent would have called for a new trial. Had any of the testimony been incompetent and of such character as tended to prejudice the minds of the jurors, the error in the receiving of it would not have been cured by ruling it out after the arguments had closed: Railroad Co. v. Decker, 82 Pa. St. 119. Although such reservations as those set out in the fourth and fifth specifications seem useless, yet there is no error: they did not interfere with the hearing and considering of the evidence by the jury. Nor did they mislead the counsel, for he took his exceptions when his objections were overruled and before the testimony was heard.

“It shall be lawful for the overseers of the poor of any township, having first obtained the approbation of any two justices of the peace of the county, to lay a rate or assessment, not exceeding one cent in the dollar at one time, upon any real and personal estate within such township “ Act of April 15th 1834, sec. 26, P. L. 515. Approbation of two justices of the peace lies at the foundation of the power of the overseers to lay a rate or assessment. And if not first obtained, tlieir act in laying a tax is unauthorized by the statute. So the law is written and neither the overseers of the poor nor the courts can treat it as obsolete.

Section 29 of the same Act provides that the overseers of the poor of every township shall cause the rates or assessments laid by-them to be entered in books, which they shall sign and deposit with the town-clerk, but if there be no town-clerk the-books shall remain with the overseers, and the town-clerk, or overseers, as the case may be, shall permit any person, charged with township rates and levies, to inspect the same at all reasonable times, without any fee or reward. This section is directory of things to follow the lawful laying of rates or assessments, and the validity of the tax does not rest upon them. If overseers neglect to perform the duties directed by this section they may incur severe penalties, although the rates or assessments laid by them, after having first obtained the approval of two justices of the peace, are valid and collectible.

Part of the plaintiff’s claim was for poor taxes levied by the overseers of the poor for Beaver township. I. H. Alt, one of the overseers for 1877, called to prove the laying of the rates, in cross-examination testified, that the overseers did not have the approbation of two justices of the peace; also that they made no entry in any book but the duplicate. And George Snyder, one of the overseers for 1878, called for like purpose, testified that the rates for that year were not laid with the approval of two justices of the peace. The testimony, instead of showing that the laying of the rates or assessments was legal, affirmatively showed that the provisions of the 26th section of the Act of 1831 had been disregarded, and it was error to admit the duplicates described in the second and third specifications of error.

The lease vested.in the lessees and their assigns, the exclusive possession of the land for the purpose of searching for, producing, storing and transporting oil. They had the right to possession of so much of the land as necessary for said purpose, and were in the actual possession of a considerable part, if not the whole. Their right was not a mere license. The rulings of the court, in the charge and answers to points, were not erroneous as respects the defendants — their sixth point was rightly refused.

None of the other questions raised by the specifications of error need remark, except the right of the lessees to conduct away the gas without liability to account. It is said that the offer to prove that the plaintiffs had so taken the gas and consumed it on other property, was overruled upon the authority of Eier v. Peterson, 41 Pa. St. 357. The defendants’ claim for the gas is not under the contract, it is not within the terms of the defalcation Act, and if they have right to recover for it they cannot avail it as set off. Speaking for myself I exclude the inference that I agree that the lessees have the absolute right of property in the gas. I think the dissenting opinion by Woodward, J., Kier v. Peterson, supra, is sustained by his reasoning and the authorities therein cited. Gas often escapes in large quantities from oil wells, and is of great value for fuel. It is conducted to towns and extensively used in mills and dwelling houses. Its value may greatly exceed tire value of the oil produced. That a tenant, who has only the right to take oil, or salt, may conduct away the gas and appropriate it to his own use, seems to me an arbitrary conclusion.

Judgment reversed and venire facias de novo awarded.