MCCREARY V. BOMBERGER.

[151 PENNSYLVANIA STATE, 323.]

WILLS-POWERS under- MORTGAGE. When a devisee for life is made executrix with power to sell the real estate, a mortgage executed by such devisee will bind the remaindermen.

POWERS - EXECUTION OF INTENTION. When a donee of a power to sell land possesses also an interest in the subject of the power, a convey. ance by him in his own name, without reference to the power, will be deemed an execution of it, if an intent to so execute it is made to appear.

W. B. Lamberton, for the appellant.

Samuel J. M. McCarrell, for the appellee.

PAXSON, C. J. The learned judge below instructed the jury to find a verdict for the plaintiff, subject to the reserved question whether there was any evidence in the case to sustain such verdict. Subsequently he entered judgment for the defendant non obstante veredicto.

The learned judge was of the opinion that Sarah Bomberger took but a life estate in the land in question under the will of her husband, Lewis Bomberger. The will, so far as it applies to the present case, is as follows: "I give, devise, and bequeath to my beloved wife, Sarah Bomberger, my house and lot in which I now reside, and all the household furniture and other items belonging to me not herein particularly mentioned; to have and to hold the said messuage and appurtenances and goods and chattels for and during her natural life; and at the death of my said wife all the property hereby devised and bequeathed to her as aforesaid, or so much thereof as may remain unexpended, I give and devise unto my son, Michael Bomberger, in trust for his wife, Ann Bomberger, and their heirs; and further, if at any time it should be deemed advantageous to dispose of said house and lot, my said executrix, or in the event of her death, the said aforenamed trustee, is hereby authorized and empowered to sell and dispose of the same, the proceeds to be reinvested in or secured by other real estate, subject to the same conditions."

The said Sarah Bomberger was made executrix of the will. We need not discuss the extent of her interest in the real estate, for, conceding it to be but a life interest, it by no means follows that the mortgage did not bind the remainder. It will be noticed that the will gives her an absolute power of sale, subject to the provision that the proceeds are to be rein

vested in or secured by other real estate. It is familiar law in this state, that an absolute and unrestricted power to sell includes a power to mortgage. It was said by Justice Sharswood, in Zane v. Kennedy, 73 Pa. St. 192: "We cannot regard this as an open question. It was expressly decided in Lancaster v. Dolan, 1 Rawle, 231, 18 Am. Dec. 625, that a power to sell does include a power to mortgage, which is a conditional sale." We need not multiply authorities upon so plain a proposition.

It was contended, however, that inasmuch as Mrs. Bomberger did not execute the mortgage in her name as executrix, but merely in her individual capacity, that it did not bind the estate in remainder. The fact that she sealed the mortgage personally, and not as executrix, will not prevent its execution being referred to the power of sale, if that is necessary to carry out the intent of the parties. It is the intention. of the parties that governs the construction of the instrument: Hay v. Mayer, 8 Watts, 203; 34 Am. Dec. 453. The distinction settled by the decisions appears to be this: When a donee of a power to sell land possesses, also, an interest in the subject of the power, a conveyance by him, without actual reference to the power, will not be deemed an execution of it, except there be evidence of an intention to execute, or, at least, in the face of evidence disproving such an intention: Jones v. Wood, 16 Pa. St. 25.

We think there is abundance of evidence that Mrs. Bomberger intended to execute the power. It is true, there is no reference to it in the mortgage, and if it were an unbending rule that such a reference must appear upon the face of the papers, the defendant's position would be unanswerable. When all the circumstances surrounding the transaction are considered, we do not think it can be sustained. It must not be forgotten that the lumber for which the mortgage was given was used in the construction of a house upon the premises devised to her by her husband. This was not a literal compliance with the will, but it was a substantial one, and one of which the remaindermen have no cause to complain. She was authorized to sell the property and invest it in other real estate. Instead of doing so, she built another house upon it, and executed this mortgage to enable her to do so. She thus increased the value of the estate in remainder to that extent. The further fact that the trustee joined in the execution of the mortgage is also a pregnant circumstance to

show the intention of the parties. He could have joined for no other purpose than to bind the estate of those in remainder. If Mrs. Bomberger had intended to bind only her life estate, the joinder of the trustee was wholly unnecessary. Nothing that he could do could bind the estate of the widow. In this view, it is unnecessary to discuss the question how far the trustee was authorized to sell or mortgage the property during the lifetime of Sarah Bomberger. She had the right to mortgage it, and the action of the trustee is important only as throwing light upon the intention of the parties.

The judgment is reversed, and it is now ordered that judg ment be entered for the plaintiff upon the verdict.

POWER OF SALE, WHETHER INCLUDES POWER TO MORTGAGE: See note to Stokes v. Payne, 38 Am. Rep. 343. If an interest and a power co-exist in the same person, an act done without reference to the power will, as a rule, affect the interest, not the power: Phillips v. Brown, 16 R. I. 279; but when a power is given to an executor by virtue of his office, and not to him as an individual, there being no other evidence that it was intended to be beneficial to him, the presumption is, that it was given for the purpose of being executed in the interest of the estate, and not for his own benefit: Sweeney v. Warren, 127 N. Y. 426; 24 Am. St. Rep. 468. The question as to the testamentary execution of a power is always one of intention; and it is not necessary that such intention shall be declared in express terms: Cooper v. Haines, 70 Md. 282. The intention to execute a power sufficiently ap pears, -1. When there is some reference to the power in the instrument of execution; 2. Where there is a reference to the property which is the subject-matter on which the execution of the power is to operate; 3. Where the instrument of execution can have no operation, unless in execution of the power: Terry v. Rodahan, 79 Ga. 278; 11 Am. St. Rep. 420; Cooper v. Haines, 70 Md. 282

PENNSYLVANIA COMPANY V. PENNSYLVANIA SCHUYLKILL VALLEY RAILROAD COMPANY.

[151 PENNSYLVANIA STATE, 334.]

EMINENT DOMAIN-DAMAGES-ABUTTING OWNERS. A lot-owner whose lot does not approach nearer to the line of a railroad than from one to two hundred feet, but who is within reach of the noise and dust produced by the ordinary operation of the road, is not entitled to recover damages for the consequential injury sustained by reason of such noise and dust.

EMINENT DOMAIN-DAMAGES.— DISTINCT TRACTS OF LAND connected only by means of a way, either private or public, cannot be treated as one for the assessment of damages inflicted under the exercise of the right of eminent domain.

EMINENT DOMAIN

- DAMAGES

- ABUTTING PROPERTY. - A parcel of land some distance removed from a street, and connected with property abut

ting thereon only by means of a private way, cannot be treated as abutting property for the purpose of claiming damages inflicted by the exercise of the right of eminent domain.

EMINENT DOMAIN DAMAGES. ONE WHO DOES NOT OWN LAND ABUTTING upon a street appropriated by a railroad in the exercise of the right of eminent domain is not entitled to recover damages on the ground that the street has been made inconvenient and dangerous to himself and other travelers.

EMINENT DOMAIN-DAMAGES-ABUTTING OWNERS. - Property must be actually invaded, or it must abut upon a highway that is invaded in the exercise of the right of eminent domain, to entitle the owner thereof to recover damages.

Mason Weidman, for the appellant.

Guy E. Farquhar, for the appellee.

WILLIAMS, J. The plaintiff holds the title to two pieces of real estate in the borough of Pottsville. One of these, known as the Bannan homestead, has a front on Coal Street, over part of which the defendant's road has been built. The other contains several acres, has been laid out into building lots fronting upon Jackson Street and two or three other streets, and is separated from the homestead lot by an intervening tract, known as the Whiting tract. It does not front upon Coal Street, but at its nearest approach thereto has a tier of lots from one to two hundred feet in length between its lines and the street.

In this action the plaintiff seeks to recover damages by reason of the location of the defendant's railroad over part of Coal Street. A recovery was had for the damages sustained by the Bannan homestead, but the learned judge of the court below instructed the jury that there could be no recovery of damages for the alleged consequential injury to the larger tract, because it did not abut on Coal Street, along which the railroad was built. This instruction is the error assigned.

The general question thus raised is, whether a lot-owner whose lot does not approach nearer to the line of a railroad than from one to two hundred feet, but who is within reach of the noise and dust produced by the ordinary operations of the road, may recover damages for the consequential injury sustained by reason of such noise and dust. If so, it is not easy to see why all citizens of Pottsville living near enough to the line of defendant's road to notice the noise and smoke and dust of its trains might not sustain an action. But the question is not now an open one in this state. It was fully considered and distinctly ruled in Pennsylvania R. R. Co. v.

Lippincott, 116 Pa. St. 472; 2 Am. St. Rep. 618; and in Pennsylvania R. R. Co. v. Marchant, 119 Pa. St. 541; 4 Am. St. Rep. 659.

The appellant seems to have been of this opinion, for it sought to escape the force of the rule laid down in those cases by showing the existence of a right of way across the Whiting tract, twelve feet wide, by means of which it was alleged that the larger tract was connected with the smaller, so that they were to be treated as one.

It was further alleged that as this alley connected with the private way from the Bannon homestead to Coal Street, so that the owner had access to Coal Street by means of the alley to the private way, and thence over that way to the street, the larger tract became thereby an abutting tract upon Coal Street, with the same right to recover as though its lines had extended to and along that street.

The proposition that two distinct tracts of land connected. only by means of a way, whether private or public, cannot be treated as one for the assessment of damages is well settled. If it was otherwise, how long may the way be? Over how many intervening lots or blocks or tracts of land will an "alley twelve feet wide" draw the tract of land at its farther end? If the owner of the homestead lot had other tracts connected by grants of a right of way with this alley, would the alley unite all these outlying properties with the homestead, so that they could be taken into account for an entry on the homestead lot alone?

But the plaintiff insists that, however this may be, the alley certainly makes the larger tract an abutting property on Coal Street. If it cannot be treated as part of the homestead by means of the private way, then it is brought into a position to claim damages independently as abutting on the street over which defendant's road passes. But it must be remembered that the grant under which this right is asserted is a grant of a right of way only. The way is of no higher order than a public way. It affords one means of access to Coal Street. The right of the grantee is a right to reach Coal Street by this route, so far as the rights of the grantor over the intervening land are concerned.

Now, an abutting owner owns, subject to the public right of passage, to the middle of the street on which his lot fronts, and a railroad laid upon the street may be said to take from him and to interfere with access to his property fronting the