cific performance of the company's duty to repair the streets, is, however, in our opinion, well taken. So far as that duty is statutory, it must be enforced by the remedy provided by the statute. In the present case, however, the plaintiff's claim is founded wholly, or almost wholly, upon the contracts made with the various railway companies operated by the defendant company by which they bound themselves to keep the streets in repair. There is nothing in the fact that the plaintiff is a municipal corporation, or that the defendant is a public service corporation, which can give the plaintiff any peculiar right to a decree for specific performance different from the right of one individual against another. The only cases in which specific performance has been decreed in Pennsylvania are the common cases of the sale of land and the very few cases concerning personal property in which it has appeared that for some peculiar reason a suit for damages for failure to perform would not give adequate relief, such as the case of Vail v. Osburn, 174 Pa. 580, 34 Atl. 315, where specific performance was decreed of an agreement to cut and deliver bark to a tannery from trees close to the tannery, where it appeared that bark could not be obtained otherwise. Unless some such element appears, equity leaves the parties to their legal remedy. Especially must this be the case where the contract sought to be enforced specifically is for putting streets in repair and thereafter keeping them in repair, which would involve a supervision of the court over the matter for an indefinite time. No case has been pointed out to us wherein specific performance of such a contract has been asked for or decreed as the principal relief sought by a plaintiff. On the contrary, there have been quite a number of cases in this commonwealth where the breach of duty to repair streets by street railway companies has been enforced in action of assumpsit, as the cases of Reading v. United Traction Co., 215 Pa. 250, 64 Atl. 446. 7 Ann. Cas. 380, McKeesport Borough v. McKeesport Passenger Railway Company, 158 Pa. 447, 27 Atl. 1006, Philadelphia v. Ridge Avenue Passenger Railway Company, 143 Pa. 444, 22 Atl. 695, and many others. "Counsel for the plaintiff cites as precedents for the bill two cases, McKeesport v. Pittsburgh Railways Company, 50 Pitts. Leg. J. 377, and Patton Township v. Monongahela, Street Railway Co., 226 Pa. 372, 75 Atl. 589. In neither of these cases, however, did the bill pray for specific performance of a contract to repair. In the McKeesport Case, the bill was to forfeit the franchise of the railways company for breach of a condition upon which it was granted, namely, that it shall keep the streets in repair; and the prayer was not for an order requiring the repairs to be made, but for a decree of for sonable time, which is a very different thing. In the Patton Township Case, as in the MKeesport Case, the bill was to forfeit the franchise of the agreement of the railways company, namely, to lay a second track which it had agreed to do upon certain conditions, the existence of which it denied; and the prayer as to the want of repair of the track, which was already laid, was the same as that in the McKeesport Case, for forfeiture, unless the repair was made, it being alleged that the keeping of the street in repair was a condition subsequent to the grant of the franchise to lay the street rail-. way; and the prayer was that, unless the repair was made, the whole railway should be removed. The present bill contains no allegation that the duty to repair in any of the streets mentioned in the bill was a condition of the continuance of the franchise; nor does it ask for any forfeiture on that account. It is purely and simply a bill for specific performance. Being of opinion, therefore, that the court has no jurisdiction to grant the relief sought, for the reason above stated, the demurrer is sustained, and the bill is dismissed, at the costs of the plaintiff." An amendment to the original bill having been allowed, Shafer, J., filed the following opinion on demurrer: "A demurrer having been heretofore sustained to the bill in this case, the plaintiff' was allowed to amend by adding an additional paragraph to the bill. By the added paragraph, it is alleged that the city and the railways company are unable to agree upon the extent of the liability of the defendant or the manner in which the defendant should do the work or make repairs; that it would be difficult to keep an accurate account of the cost of said work so as to properly charge the defendant, the defendant being liable to the city only for repairs and cleaning done on only a part of the street; and that it is not practicable for the plaintiff to do the work and make the repairs, because in so doing it would interfere with the operation of the defendant's cars. To the amended bill, the defendant has demurred as before. Upon a careful consideration of the bill as amended, we are unable to see that it differs substantially from the original bill, or that anything contained in the amendment is sufficient to give jurisdiction to decree specific performance under the circumstances. "The demurrer is therefore sustained." Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. C. Elmer Bown and C. A. O'Brien, for appellant. David A. Reed and Allen H. Kerr, for appellee. PER CURIAM. The decree is affirmed for the reasons stated in the opinion of Judge (234 Pa. 208) after the meter was put in a test should be AMERICAN CONDUIT MFG. CO. v. KEN- made for a certain length of time, and the SINGTON WATER CO. Supreme Court of Pennsylvania. Jan. 2, Where a customer of a water company sought to restrain the shutting off of its water, and the water company filed a cross-bill for an accounting for water alleged to have been stolen by the complainant, and the chancellor found that an average of 9,000 gallons a day for 26 days a month for a specified period had been misappropriated by means of a meter device, a decree requiring complainant to pay defendant for the amount of water so taken, and enjoining defendant from shutting off the supply, provided complainant complied with defendant's rules, was proper. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 290-299; Dec. Dig. § 203.*] Appeal from Court of Common Pleas, Allegheny County. water furnished after October 1, 1903, and up to May 16, 1904, should be paid for by a rate to be established by the average readings of the meter for a certain time. “Fourth. The meter was put in by the plaintiff company, and either by the addition of new pipes or the adaption of those which were already in use, or both, the arrangement of the pipes conducting the water from the water main into the works of the plaintiff, at and immediately after the installation of the meter, was as follows: The street on which the water main lies runs north and south. From this main to the south side of the plaintiff's works, a pipe was run at right angles to it for some distance into the ground of the plaintiff. From this pipe, there extended north, and parallel with the street, three pipes, the first of which, counting from the street, passed through the meter; the Bill by the American Conduit Manufac-second extends some distance into the yard, turing Company against the Kensington Water Company for an injunction to restrain the defendant from shutting off complainant's water supply, in which defendant filed a cross-bill for an accounting for water stolen. From the decree, complainant appeals. Affirmed. and ends in a hydrant; and the third extends northward to a part of the plaintiff's works, including a gas engine. From the third pipe to the first, after the first passed through the meter, extended another pipe, in a southerly direction, connecting the first and third pipes. The stopcocks on these pipes were Shafer, J., filed the following opinion in one near the street, which would shut off all the court of common pleas: the water, one on the third pipe, and going "The bill is by a customer of a water comto the branch pipe leading south to the first pany to enjoin the shutting off of the water pipe, another one on the third pipe after that by it. The defendant company filed a cross-branch, one on the branch itself, and one on bill for an accounting for water alleged to be stolen by the plaintiff from the defendant company by means of a device connecting the main with the company's works, without passing through the meter. "Findings of Fact. "First. The plaintiff is a manufacturing company, having its works located in the borough of Kensington, Westmoreland county; and the defendant is a water company, incorporated for the purpose of furnishing water to the borough of Kensington under the laws of Pennsylvania relating to water companies. "Second. In September, 1903, and for some time prior thereto, the water company furnished water to the plaintiff at a certain rate per month, without measurement. Some time before October 1, 1903, the plaintiff was notified by the water company that they desired to install a meter; and that the flat rate theretofore prevailing would cease on October 1, 1903. the second pipe. The last four mentioned valves being within a foot or so of each other and inclosed in a box, which could be reached with a proper instrument from the surface of the ground, so as to turn them on or off. "Fifth. The object of this device was to enable the plaintiff to take the water without its passing through the meter, and the effect of the construction was that none of the water which passed through the second pipe could pass through the meter; that all the water which passed through the third pipe might be allowed to pass through the meter, or none of it pass through, as might be desired; and that all the water which passed through the first pipe might be made to pass through the meter, or part of it might be allowed to pass through the meter, and a part to pass through the branch pipe, as desired. "Sixth. According to the readings of the meter from May 16, 1904, to June 30, 1904, a settlement was made for the water used between October 1, 1903, and May 16, 1904, the parties having agreed to settle for this water, not actually measured, according to the readings of the meter for a month and a half after May 16th. "Third. From that time until the following May, there appear to have been negotiations of some character between the plaintiff and defendant as to the method of furnishing water, and no meter was in fact "Seventh. The water company continued to put in until May 16, 1904; and it was agreed furnish water and render monthly bills thereby the parties some time before that that | for, according to the readings of the meter, on its schedule of rates, until about October 22, 1910; the same being paid by the plaintiff company. through the by-pass, and was therefore not measured by the meter, during the time from May 16, 1904, to October 22, 1910, and we "Eighth. The present officers of the plain- have no evidence of the amount which could tiff company were none of them connected have so passed. The best that can be done with the company at the time the device under the circumstances, in view of the rule above mentioned was installed. The presi- that everything is to be presumed against dent of the company at that time, by whose the party by whose fault the want of more direction the device was put in, being dead. accurate measurement arose, is to take the The fact of its existence was known to some various uses of the different parts of the of the employés. plaintiff's works, and the amount of water probably used by them, and in that way ascertain the amount of water which may well have passed through the by-pass and been used by the plaintiff. "Ninth. The bill in this case alleges that the first knowledge any of the officers of the company had of the existence of the by-pass, 'which caused it to make an investigation,' was on or about May 1, 1910. The present president of the plaintiff company, who has held that office since January, 1910, and immediately before that time was secretary and treasurer of it, testified that Armstrong, who was then a foreman for that company, said to him, as he saw a check made out for the water company, that the water company had done him a wrong, and he had gotten even with them, saying: 'I fixed it down at the fixture, so we are getting a lot of water we are not paying for. This is denied by Armstrong, who says he never told the president of the company anything about it until May, 1910. The fact is, however, that no steps were taken to investigate any supposed method of stealing water until May, 1910, when Armstrong, who had in the meantime gone out of the service of the plaintiff company, and had had some contention with them, informed the president of the company of the nature of the by-pass, giving him a sketch of it. "Tenth. At that time, or some time later in the summer, the president of the plaintiff company directed one of the valves to be turned, so that the water could not pass through the gas engine, and ordered it to be cut off, so that it could not be re-turned, and some of the valves were so cut off. "Eleventh. The officers of the plaintiff company did not communicate to the water company the existence of the by-pass; and it became known to them only by information from Armstrong, given in October, 1910. On October 22, 1910, the water company made an examination of the plant, taking off the meter and substituting for it a piece of pipe with a stopcock in it, and making tests at different parts of the plant, from which it was ascertained that, in addition to the water at the hydrant, which could not pass through the meter, water was running to the gas engine, although the stopcock in the pipe, substituted for the meter, was closed. The valves were then closed, so that, so far as appears, no water went through the bypass since that time, except what may have gone by way of the hydrant. “Twelfth. It is obviously impossible to determine with accuracy, or any approxima "Thirteenth. The defendant has given evidence as to the amount of water probably used in the gas engine and at the hydrant, and also of the amount probably wasted by a leak, alleged to be in the gas engine, together with the number of hours and days when these sources of loss to the defendant were probably in operation; and the plaintiff has given evidence tending to show that the estimate of the defendant is too large. No attempt was made on the part of the defendant to show anything about the water which may have passed into the other parts of the works through the connection which, when open, competed with the connection through the meter. The evidence on the part of the defendant shows that it is not unreasonable to believe that an average of 9,393 gallons was lost to the defendant daily for 26 days of each month during the period in question, amounting in a month to 244,218 gallons; the total amount so taken being obtained by multiplying this amount by the number of months from May 16, 1904, to October 22, 1910. "Fourteenth. As to the amount of water supplied by the defendant to the plaintiff from October 1, 1903, to May 16, 1904, it appears that the gas engine and hydrant were in use during that time substantially as they were afterwards; that no meter was then in use, although the flat rate had been discontinued; and that the water so supplied was paid for by the plaintiff company upon the average of the meter readings for a certain time after May 16, 1904. The defendant company was therefore deceived in its settlement for the water furnished during these months. No water was, however, stolen during these months. "Fifteenth. The market value of water during all the time in question was 30 cents per thousand gallons. The meter rates charged by the defendant company were, for 500 gallons or less daily, 30 cents per thousand: from 1,000 to 5,000 gallons daily, 25 cents per thousand; from 5,000 to 15,000 gallons daily, 15 cents per thousand. The rate, however, at which water was actually furnished to the plaintiff by meter was by special contract, under a schedule known "Sixteenth. Some time before the filing of the bill, the defendant company made a claim upon the plaintiff company for a sum of money, amounting to something less than $6,000, for the water alleged to be stolen, and demanded payment of it, and threatened, if the same were not paid, to shut off the water altogether. The plaintiff refused to make the payment demanded, and thereupon filed this bill. "Conclusions of Law. "First. Upon a state of facts, such as appears in this case, it seems to us that there is a single principle of law upon which the rights and duties of the parties is to be determined; and that is the principle embodied in the maxim, 'Omnia prææsumuntur contra spoliatorem.' We deem it unnecessary to cite cases to show the applicability of this any loss of water which occurred before May 16, 1904. Rates," in which the price of 500 gallons per day is 30 cents per thousand, 5,000 gallons per day, 12.31 cents per thousand, 9,000 "Fourth. As to the price which the plaindaily is 10.94 cents per thousand, and of 10,- tiff should pay for the amount of water so 000 gallons per day is 10.75 cents per thou- determined to have been taken, it is contendsand; the whole of the last-mentioned sched-ed by the plaintiff that it is liable only for ule being set out in the seventh paragraph the price which the defendant would have of the answer. been entitled to receive for the same, if it had passed through the meter, according to the schedule of rates published by the company. The defendant's contention is that it is entitled to recover the market price of the water taken by the gallon, without reference to the rates at which water was furnished to customers by meter. The only evidence on the market value of water during the time in question was that it was 30 cents per thousand gallons, which is much greater than the schedule of rates published by the company. We do not well understand how the plaintiff company can claim any rebate from the ordinary or market price of water, because it stole a large quantity, and are therefore of opinion that the measure of defendant's damage is the market value of water, namely, 30 cents per thousand gallons. The defendant is obviously entitled to interest, or its equivalent, upon the value maxim to the case in hand. of the water so taken, the delay in payment "Second. A strict application of this max-being caused entirely by plaintiff; and, as im might justify a finding against the plain- the payments for water delivered should tiff for all the water which the device in- have been made monthly, the interest ought stalled by it could have taken from the de- to be calculated upon the amount found to fendant. The defendant company had not be taken each month. undertaken to show how much this might be, but has taken a view of the matter more favorable to the plaintiff, and shown the amount which, considering the construction of the pipes and apparatus through which water was taken, and the uses to which it was put in the operation of the plaintiff's works, may reasonably be supposed to have been taken by the plaintiff. As it is evidently impossible to ascertain with any approach of accuracy the amount of water actually taken, and as this impossibility was created solely by the wrong of the plaintiff, we think the plaintiff is chargeable at least with the amount which it may have probably taken, to say nothing of what it may possibly have taken. "Fifth. The relief prayed for by the plaintiff is an injunction to prevent the defendant from shutting off the supply of water now furnished by it by meter, which the defendant had threatened to do, unless it were paid the sum demanded by it for the water taken, as above described. As the defendant company is a public service corporation, it seems to us to be bound to furnish water to the plaintiff, notwithstanding the matters above set forth. To hold otherwise would be to make it the judge in its own cause, and to enable it to impose upon the plaintiff a penalty for its wrongdoing different from that which is provided by law. We are therefore of opinion that the plaintiff is entitled to an injunction restraining the defendant "Third. As to the water supplied from Oc- company from ceasing to supply water to tober 1, 1903, to May, 1904, we do not see the plaintiff by meter, so long as the plainhow, under the pleadings, the defendant is tiff company shall comply with the reasonentitled to recover anything in this proceed- able rules of the defendant company in reing. The bill alleges the stealing of watergard to the supply of water. to have taken place from October, 1903, down "Sixth. No question of the jurisdiction of to the present time; whereas, in fact, the ac- the court to entertain either the bill or the tual taking of water by means of a by-pass cross-bill was raised by either party. began in 1904, and the wrong done to the "Seventh. Let a decree be entered that the defendant was the procuring of a settlement defendant be enjoined from cutting off the with it for the water theretofore supplied supply of water to the plaintiff, so long as upon a false basis. As no relief is prayed the plaintiff shall comply with the rules of for on this ground in the cross-bill, we are the water company and pay, according to of opinion that the defendant is not entitled its rules, for the water supplied, according plaintiff company shall pay to the defend-¦ month, during the period beginning with ant company, within 30 days hereafter, al! arrearages for water supplied since the filing of the bill; and, further, that the plaintiff company pay to the defendant company for the water taken by it at the rate of 30 cents per thousand gallons, with interest to be calculated from the end of each month upon the amount due for that month, the amount of each month to be ascertained by taking 9,393 gallons of water taken each day for 26 days in each month, the calculation to begin with May 16, 1904, to October 22, 1910; and that the plaintiff pay the costs. May 16, 1904, and ending October 22, 1910; further, that the American Conduit Manufacturing Company, the plaintiff, shall pay to Kensington Water Company, the defendant, for the water so taken by it at the rate of thirty (30) cents per thousand gallons, with interest to be calculated from the end of each month upon the amount due for that month, being the sum of six thousand nine hundred sixty-six dollars and fifty cents ($6,966.50); it is also further ordered, adjudged, and decreed that the American Conduit Manufacturing Company, the plaintiff, shall forthwith remove the system or arrangement of pipes constituting the by-pass complained of in the cross-bill filed in the above-entitled suit, or shall make such changes in the arrangement of the pipes constituting the by-pass as shall render the operation of the same as a by-pass physically impossible, and that this shall be done under the supervision and subject to the reasonable inspection of the employés of the Kensington Water Company, the defendant, in accordance with the rules of the said Water Company; and it is further ordered, adjudged, and decreed that the American Conduit Manufacturing Company, the plaintiff, pay the costs." "And now, to wit, June 24, 1911, this cause came on to be heard at this term, and was argued by counsel, and upon consideration thereof it is ordered, adjudged, and decreed as follows, viz.: That the defendant, Kensington Water Company, is enjoined from cutting off the supply of water to the American Conduit Manufacturing Company, the plaintiff, so long as the plaintiff shall comply with the rules of the Water Company and pay, according to its rules, for the water supplied, according to the meter readings, provided that the American Conduit Manufacturing Company, the plaintiff, shall pay to the Kensington Water Company, the defendant, within 30 days hereafter, all arrearages for water supplied since the filing of the bill; and it is further ordered, adjudged, and decreed that the American Conduit Manufacturing Company, the plaintiff, Edward Schreiner, for appellant. William has unlawfully taken from Kensington Wa-Watson Smith and Alexander Black, for apter Company, the defendant, through the by-pass arrangement complained of in the cross-bill, water to the amount of nine thousand three hundred and ninety-three (9,393) gallons for each day, for 26 days in each Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. pellee. PER CURIAM. The decree is affirmed on the findings of fact and conclusions of law by Judge Shafer. |