County of Allegheny v. Gibson. aroused by a sense of common danger. The law will not tolerate the spectacle of a great city looking on with indifference, while property to the value of millions is being destroyed by a mob. To prevent just such occurrences was one of the objects of the act of 1841. The fact that the State, when called upon, rendered its assistance, and sent a portion of its military to the scene, did not absolve the county from its implied obligation to preserve the peace, nor from its responsibility for a neglect of that duty. Were it otherwise, it might be to the interest of a municipality to increase the size of the mob. The right of the plaintiffs to recover is further resisted upon the ground, 1. That being non-residents, they are not entitled to the benefit of the act of 1841; and 2, That the property having been shipped at Cincinnati for Philadelphia, and destroyed on the cars en route, was not "situate" in the county defendant, within the meaning of the act. The first ground of objection appears to be based upon a mistake of fact. The "history of the case," furnished by the defendant, asserts that the plaintiffs are citizens of Philadelphia. I notice, however, that in the case of Webb & Son, argued with this, the plaintiffs are citizens of Baltimore, Maryland. As therefore the point must be met in that case, I will dispose of it here. No authority has been cited, nor has any sufficient reason been shown, why the act should not apply to the property of non-residents. It is broad enough in its terms to cover it. "In all cases," is the language of the statute. There is nothing in the spirit or reason of the act to discriminate against non-residents. The stranger robbed had his remedy against the hundred, as well as if he had been an inhabitant thereof. Our entire system of law, for the protection of person and property, places the citizen and stranger upon the same plane of security. It has never yet said to a mob: You must not touch the property of A., because he is a citizen of the State, but you may work your will upon the property of B., because he is a non-resident. On the contrary, it protects the property of a stranger stopping for a single night at a hotel, so far as he brings it with him, precisely as it protects that of a lifelong citizen. Any other rule would be churlish and inhospitable, and if successfully asserted, would very materially lessen the business of the State, by diverting passengers and freight into channels where a more liberal rule of law prevailed. County of Allegheny v. Gibson. * * Strictly speaking, Was the property situated within the county? personal property cannot be said to have a situs. It is situated wherever it may happen to be for the time being. This is all that the word means in the act of assembly as applicable to personal property of this description. The act as before stated is remedial as to the sufferer. Similar acts have been invariably so regarded, and have been construed liberally. In Hyde v. Cogan, 2 Doug. 699, which was one of the cases growing out of the Lord George Gordon riots of 1780, the statute was largely considered, and all the judges except Lord MANSFIELD gave an opinion. Said WILLES, J.: "The sixth clause I rather consider as remedial. It may be said. to be penal as to the hundred, but is certainly remedial as to the sufferer." ASHHURST, J.: "The purpose of this act is remedial, and therefore it ought to receive a liberal construction." BULLer, J.: "The statute is so penned that the words might possibly admit of two constructions, and therefore it is material to consider whether it is penal or remedial, because there is a well-known difference in the rule of construction as applied to laws of the one sort and of the other. When they are remedial the interpretation is to be liberal, so as best to apply to the end. *If the clause upon which this case arises (6) is remedial, which I think it is, the most extensive sense must prevail, and it was so held in both cases cited at bar. Radcliffe v. Eden; Wilmot v. Horton. But independent of authority, as the clause is remedial, it must receive a liberal construction." It was accordingly held in that case that under the statute of George I, commonly called the Riot Act - which made it felony without benefit of clergy for any persons unlawfully, riotously and tumultuously assembled together, to the disturbance of the public peace, unlawfully and with force to demolish or pull down any church or chapel, or any building for religious worship, etc. if any persons riotously assembled, in part demolish or pull down a dwelling-house, and at the same time destroy goods and furniture in the house, although such goods and furniture were not destroyed by means of the pulling down of the house, the hundred is liable, under the above statute, for the destruction of the furniture, as well as of the house. And in Donoghue v. City of Philadelphia, supra, an accidental destruction by fire, communicated from a building fired by a mob, was held to be within the act. In Commissioners of Kensington v. County of Philadelphia, 1 Harris, 76, it was held that a municipal corporation is included within the VOL. XXXV-86 County of Allegheny v. Gibson. term person or persons, authorized by the act of 1841, to bring suit for injury to its property by a mob. Of a similar statute in New York the Supreme Court of that State in Schiellein v. Kings County, supra, said: "The statute must receive a reasonable and liberal construction." And of our own statute Justice ROGERS said at nisi prius, in Hermits of St. Augustine v. County of Philadelphia, supra: "The act of assembly has been carefully drawn, and is wise, just and beneficial in its character. If the act is always rigidly enforced when violated, the effect will be found highly beneficial." It requires no strain to bring the property in question within the letter and spirit of the act of 1841. On the contrary, it would require a wrenching of the law to hold that the act did not apply. * The learned judge was right in rejecting the offers of evidence embraced in the second, third and fourth specifications. It is manifest that if received they would not have amounted to a defense. The offers were also vague, involving conclusions rather than facts. An offer to show that the mob was beyond the control of the civil authorities was incomplete in the absence of any attempt to prove its numbers or size, or that an effort had been made to suppress it. An examination of the bill of exceptions shows that while the learned judge rejected the offers as a whole, he nevertheless allowed the witnesses to proceed, with the understanding that they were to be checked if necessary. In this way the defendants got before the jury a very full history of the riots, which was not contradicted in its essential features. Upon all the points presented the law is against the county. The judgment must therefore be affirmed. - Judgment affirmed. NOTE BY THE REPORTER. In Solomon v. City of Kingston, 24 Hun, 562, the plaintiff's store took fire, and a crowd, which had assembled to see the fire, having shown an inclination to break into the store, the chief engineer turned a stream of water upon them, whereupon he was struck with a brick, and went away to get a revolver. While he was gone → some fifteen minutes - the crowd kicked the door and windows open, went into the store, broke the show-cases therein, threw and left upon the floor a portion of the goods, and carried other portions of them away. It was held that the city was liable, under the statute, for the loss and damage, as well as for what was carried off as for what was literally "destroyed," and that notice to the public authorities of the danger was unnecessary. under the circumstances. LEARNED, P. J., said: "It is plain that though the original purpose for which the crowd assembled was lawful, yet they might unite in unlawful conduct, and thus become rioters." "It could make no real difference whether the rioters actually destroyed the personal property on the premises of Solomon, or whether they took it out of his premises and then actually destroyed it. And whether they destroyed the boots and shoes by cutting them to pieces, or by wearing them out, would matter very little to the plaintiff." "When the crowd became a riot, there was no time to give notice." Saltonstall v. Little. SALTONSTALL V. LITTLE. (90 Penn, St. 422.) Deed-reservation of timber-limitation of time of entry. In a deed reserving the right to cut and remove timber," at any and all times, also the right of ingress and egress at any and all times for the space of twelve years from the date above written, for the purpose so as aforesaid," the right of entry and of property ceases with the twelve years.* JECTMENT. The decision depended on the construction of EJECT the following clause in a deed: "And also reserving unto the parties of the first part hereto, their heirs and assigns, all the pine timber on the aforesaid six warrants or tracts, together with the right and privilege to cut, remove, take and carry away the same, or any part thereof, at any and all times, also the right of ingress and egress at any and all times, for the space or term of twelve years from the date first above written for the purpose so as aforesaid." The plaintiff had judgment below. George A. Rathbun, for plaintiffs in error. John G. Hall and C. H. McCauley, for defendant in error. PAXSON, J. Whether we regard the clause in controversy, in the deed from Kingsbury to Veazie, as a reservation or an exception, the result is the same, for in either event Kingsbury or his grantee of the timber was restricted to twelve years, in which to cut and remove it. The reservation of the timber was not an absolute severance of it from the freehold. It was a severance only upon the condition of its removal within twelve years. It is true no such express condition appears, and the words proviso, ita quod and sub-conditione, so much relied upon by Lord COKE, are not to be found in the reservation. But conditions may be implied as well as expressed. There is abundance in the reservation from which such a condition may be implied. "If a man grant all his trees to be taken within five years, the grantee cannot take any after the expiration of five years, for this is in the nature of a condition annexed to the grant." Bacon's Abr., tit. Grant. In Boults v. • See contra, Irons v. Webb (12 Vroom, 203), 32 Am. Rep. 193, and note, lyi Saltonstall v. Little. Mitchell, 3 Harris, 371, there was a sale of the land, excepting and reserving therefrom all the timber that is suitable for rafting and sawing of every description." In that case no time was limited within which the timber must be removed, yet it was held that "the grant was in its very nature determinable; the right to cut timber was not to continue forever at the pleasure of the grantee and his assigns; and if from the destruction of the trees, the subject of it, or the refusal of the party to exercise his right after a reasonable notice to do so, the right itself is determined; the privilege of entry is gone with it, and the owner of the land may sue for breach of close, though he may not recover in damages the value of trees taken, the property of which is not in him." In the case in hand, the parties have fixed the time during which the trees may be removed. Had no time been limited, the law would have allowed a reasonable time in order that the grantor might not be defeated of his reservation. But he would have been compelled to remove them upon reasonable notice, otherwise the reservation would have been a perpetual servitude, which was not contemplated by the parties, and is repugnant to the grant. Having fixed their own time for the removal of the timber, it is too clear for argument, that the right of entry falls with its expiration. It was contended, however, that even if the right of entry is gone, the right of property in the trees remains, and the case stated was evidently framed to meet this possibility. It would certainly be a barren right to own trees upon another's land, with no right of entry to take them away. The plaintiffs have no such property in the timber. The limitation upon the right of entry was a limitation upon the exception itself. It was a reservation of the timber for twelve years and no longer. After that time, the trees remaining passed with the grant of the soil to which they were attached. This is the construction placed upon such agreements in the lumber regions where they are frequent, and it accords with reason and common sense. We made a somewhat similar ruling in Leconte v. Royer, decided in 1877. It also appears by the case stated, that Kingsbury sold the timber in question, to one Joseph S. Hyde, twenty-six days before his deed to Veazie, with the right to take it off for twelve years from the date of the sale. Whatever the rights of the defendants may be, the plaintiffs by their own showing have none. The judgment is reversed, and judgment on the case stated for the defendant. Judgment reversed. |