Common'h v. New York Etc. R.

OPINION, Me. Chief Justice Paxson : This was a re-argument. When the case was first heard, a majority of the court were of the opinion that the question whether the manner in which the lands in controversy were held was a device to evade the act of April 26,1855, P. L. 329, should be passed upon by a jury. The judgment was accordingly reversed and the record sent down upon this single point: Commonwealth v. Railroad Co., 114 Pa. 340. In the meantime, another case between the same parties and involving precisely the same question, came up from Elk county. Upon a very careful consideration of it we came to the conclusion that we had erred in sending it to a jury, for the reason that the facts were all admitted, and it was for the court to pass upon their legal effect. All this fully appears in the opinion filed in that case: Commonwealth v. Railroad Co., 132 Pa. 591. The judgment in the last case was for the defendants below, and was affirmed. We then ordered a re-argument of the case from Jefferson county, and it was heard at the present term of the court in the Eastern District. After a further consideration of the question, and the additional light furnished by [460] the re-argument,, we adhere to the views expressed in Commonwealth v. Railroad Co., 132 Pa. 591. As the principles involved were fully discussed in that opinion, we do not think it necessary to go over the ground again. Everything was then said that we deemed essential, and further elaboration would be but repetition, and that is neither desirable nor profitable. Judgment affirmed. Mr. Justice Sterj&ett and Mr. Justice Clark. noted their dissent.