manner as to throw stones or dirt on the land of Cleveland. A petition was filed in behalf of Cleveland, charging O'Rourke with violating this injunction. Upon the hearing, on the return of this petition, it was decreed that O'Rourke had been guilty of violating the decree of the court, and he was adjudged in contempt. It was decreed that he pay the costs of the complainant in the contempt prcceeding, also a counsel fee of $250, and that sentence, by way of fine or imprisonment, be suspended until the further order of the court, and that said O'Rourke appear before this court, when required, for such further order and sentence. We concur in the view of the vice-chancellor, that there was a violation of the decree of the court of chancery, and that the appellant was properly adjudged to be in contempt. But we are of the opinion that the order thereupon made cannot stand. In the first place, we can find no authority in this state for the imposition of counsel fees upon a person adjudged to be in contempt. Chancellor Haines, in Magennis v. Parkhurst, 4 N. J. Eq. 433, ruled that even costs in a proceeding for violating an injunction should not, as a general rule, be allowed to a defendant who successfully purged his contempt, because the proceeding was criminal in its nature. In the only case cited by the chancellor in support of this conclusion, namely, Rex v. Plunket, Burr. 1329, the court, while declaring it to be contrary to their general practice, yet, in that instance, gave costs. And in McDermott v. State, 10 N. J. L. 63, costs were awarded to a defendant under similar circumstances; and the award of costs, at the discretion of the court, is the settled practice, in courts of equity, in contempt proceedings: Bowden v. Russell, 36 L. T., N. S., 177; Vernon v. Vernon, 4 L. J. Ch. 118. But I find no case in which counsel fees have been awarded to a successful litigant in contempt proceedings, aside from two cases in the courts in the state of New York, and one case in the federal court of the northern district of New York. In the state of New York, however, counsel fees are awarded under a statute which permits the court to impose upon a defendant in contempt the costs and expenses in contempt proceedings. A counsel fee, while held not to be a part of the costs, is held to be embraced within the term "expenses": Davis v. Sturtevant, 4 Duer, 148; Clark v. Barnes, 76 N. Y. 301; 32 Am. Rep. 306. The federal case, obviously following the practice of the state courts, is Doubleday v. Sherman, 8 Blatchf. 45. The power to award a counsel fee is purely statutory. No legislative authority in this state can be discovered which. permits it in this class of proceedings. The chancery act (Rev., p. 125, sec. 113) confers power upon the chancellor to allow a counsel fee, instead of a retaining fee, to be included in the bill of costs. But this section is inapplicable to the present proceedings, -1. Because the section mentioned, as amended (Rev., p. 127, sec. 122), can apply only to decrees for the payment of money; and 2. Because no retaining fee could have been taxed in a contempt proceeding, and so there would exist nothing for which a counsel fee could be substi tuted. We think that the order is irregular in another particular. The order was to pay costs and counsel fees, but the defendant was left in suspense as to whether any further punishment was to be inflicted, and he was decreed to hold himself in readiness to appear, upon order, for such order and sentence as might seem meet to the court. I do not think that a punishment for a contempt can be broken up into portions. If the court undertakes to adjudge a punishment at all, the judgment must be entire and final for the particular contempt. Nor does it seem conformable to the provisions of section 103 of the chancery act, that a party who has been adjudged to be in contempt shall be permitted, by future conduct, to evade the payment of the fine mentioned in that section. The decree is reversed. CONTEMPT. CONVICTIONS FOR CONTEMPT, WHEN VOID: See note to Ex parte Sternes, 11 Am. St. Rep. 256; see also note to Morrill v. Morrill, 23 Am. St. Rep. 109. When a superior court imposes a fine upon an attorney for contempt, and further orders that he purge himself of the contempt, and after the fine is paid m kes a other order, suspending the attorney from practice in said court until he has purged himself of the contempt by apologizing, the supreme court can, by a writ of mandamus, compel said court to vacate and set aside its order of suspension. The latter part of the first order, if it required more than the payment of the fine, required more than the court had a right to order, and was absolutely void, and could furnish no foundation for the proceedings which led to the second order, which was therefore absolutely void as an entirety: State v. Sachs, 2 Wash. 373; 26 Am. St. Rep. 857. AM. ST. REP., VOL. XXXL-46 AGES. [151 PENNSYLVANIA STATE, 30.] STREETS - OCCUPATION OF, BY RAILROAD NEw Servitude. — When the state authorizes the construction of a railroad upon a line which makes it necessary to cross one or more public highways or streets, the grant is subject to two limitations, one in favor of the public for the preserva. tion of the way; the other in favor of the land-owner, requiring no ad. ditional servitude to be imposed upon the land covered by the public easement without compensation. STREETS-OCCUPATION BY RAILROAD - ADDITIONAL SERVITUDE - The au thorized construction of a railroad upon a public street, which injuri ously affects the adjacent owner by interfering with the access to or drainage from his property, or the exclusion of light and air therefrom, imposes an additional servitude for which he may recover damages. STREETS OCCUPATION OF, BY RAILROAD - ADDITIONAL SERVITUDE — DAM. - When a railroad company owns the diagonal corners on public streets, and is authorized by the city to connect them by an overhead bridge, which the company places on abutments twenty-three feet high, built upon its own land, the adjoining owner upon one of the remaining corners is entitled to recover damages for any additional servitude thus imposed upon his property, as for the exclusion of light and air therefrom, but he is not entitled to recover on the ground that his property is diminished in value by the use to which the railroad company puts its property; nor is he entitled to recover for the mere exposure of his property to the noise, smoke, dust, and danger from his horses or those of his visitors becoming frightened by moving trains. STREETS OCCUPATION OF, BY RAILROAD. EXPERT EVIDENCE is not necessary to determine the value of city property as affected by the occupa tion of a street by a railroad. All persons familiar with the property, who have formed an opinion, are competent to testify as to its value. STREETS OCCUPATION OF, BY RAILROAD · ADDITIONAL SERVITUDE. Mere exposure to danger of horses being frightened by passing trains twenty-three feet above the surface of the street is not an obstruction to access to adjoining property, nor the imposition of a new servitude for which the adjoining owner is entitled to recover. - STREETS-OCCUPATION OF, BY RAILROAD-ADDITIONAL SERVITUDE. The mere proximity of a railroad in the street may render adjoining dwelling-houses less desirable without imposing any liability on the railroad company for the loss sustained by their owners. Such proximity of the road, so that the noise of passing trains can be heard, or the dust and smoke therefrom be noticeable, imposes no additional servitude. SERVITUDES - USE OF PROPERTY. - The use to which a railroad company puts its city property by building abutments thereon imposes no additional servitude on the property of an adjoining owner, although it may diminish its market value. Everett Warren and Edward N. Willard, for the appellant. S. P. Price and H. M. Hannah, for the appellee. WILLIAMS, J. This appeal presents several important questions. One of these does not seem to have arisen heretofore in this state. In New York, and some other of our sister states, it has been considered and decided; but these decisions are influenced by the legislation peculiar to the jurisdiction in which they have been made, and are not as helpful as under other circumstances they might be. In the case now before us we have the following facts: The plaintiff, Jones, is the owner of a piece of land lying in the northeast corner made by the crossing at right angles of Washington Avenue and New Street, in the city of Scranton. His front upon Washington Avenue is sixty-three feet, and upon New Street ninety-five feet. In the corner standing back a few feet from the streets he has a double dwelling-house, and he has one or more dwelling-houses farther out New Street. The southeast corner, which is directly across Washington Avenue from the plaintiff's double house, is owned by the defendant company, as is the northwest corner, which is directly across New Street. On each of these corners it has erected a substantial stone abutment about twenty feet high, upon which it supports an iron bridge eighteen feet wide, that spans the intersection of the streets below in a diagonal direction. This bridge is an overhead crossing for the defendant's line of railroad, and the tracks upon it are about twenty-three feet above the surface of the streets below. The center of the bridge is about twentyseven feet from the corner of plaintiff's lot, and about forty feet from the nearest corner of his double dwelling-house. The right of way of the railroad company, as the law would define it, would reach over upon the corner of the lot about three feet and overhang a triangular piece of ground beyond the street lines having that depth at the corner. The defendant has, however, released its right to this corner, and defined the extent of its right of way so as to exclude therefrom any portion of the plaintiff's land outside the streets over which its bridge is suspended. The situation of the plaintiff's land and double dwelling-house, of the defendant's abutments, bridge, and right of way as now defined, and of the streets, is shown by the following diagram: After the overhead crossing was completed and occupied by the defendant, this suit was brought to recover consequential damages, which he alleges he has sustained by reason of the construction and use of it. The defendant denies the right to a recovery, alleging, first, that it has taken, injured, or destroyed no portion of the plaintiff's property in the construction of its crossing; and next, that it has a clear legal right to operate its line of road in the manner contemplated by its charter, and commonly employed by railroad companies without liability therefor. The first of these positions makes it necessary to inquire into the nature and extent of the title which the defendant acquired in these public streets by virtue of its charter, and the consent of the city of Scranton to construct an overhead |