Pusey et al. v. Wright et al.

• Decision Date: 01 January 1858
• Citation: 31 Pa. 387
• Parties: Pusey et al. versus Wright et al.
• Court: Pennsylvania Supreme Court

31 Pa. 387

Pusey et al. versus Wright et al.

Supreme Court of Pennsylvania.

APPEAL IN EQUITY from the Common Pleas of Lancaster county.

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B. & Ed. Champneys, for the appellants.—The injury complained of, if it exist without authority of law, and without the consent of the owners of the soil, is such an one, as in its nature, would be a proper subject for the exercise of the power of injunction. The principle is, that whenever the wrong is of such a character as to amount to a permanent occupation of the property, thereby affecting the owner's right to the freehold, and depriving him of the proper enjoyment of his estate, an injunction can be issued to prevent it, or to restrain its further continuance: 2 Story's Eq., § 928; Hart v. Mayor, &c., of Albany, 9 Wend. 578-9; Adams' Eq., 403-4, 407-8; 1 Johns. Ch. 319; Bonaparte v. Camden and Amboy Railroad Company, 1 Bald. 210-33; 7 Johns. Ch. 335-6; 6 Id. 499, 500; Drewry on Injunctions, 36 Law Lib. 167, 168, 170; Bevans v. The Turnpike, 10 Barr 176; Commonwealth v. Bank of Pennsylvania, 3 W. & S. 193; Wesley Church v. Moore, 10 Barr 280.

The burden of proof, under the pleadings, was upon the defendants: Bush v. Livingston, 1 Caine's Cas. 72; Allen v. Crobcroft, Barnard. Ch. 373; 2 Eq. Cas. Abr. 247; 3 Greenl. Ev., §§ 250, 253, 289; 2 Story's Eq., § 1529; 2 Dan. Ch. Pr. 242; Hart v. Ten Eyck, 2 Johns. Ch. 74; Boyd v. McLean, 1 Id. 589.

Shaeffer and Dickey, for the appellees.—The rules governing the granting of injunctions are so fully set forth in the opinion of the court below, that we do not deem it necessary to discuss them. And the point made as to the burden of proof is equally free from difficulty: 2 Story's Eq., § 1528; 3 Greenl. Ev., §§ 283, 285, 287, 289; Horton's Appeal, 1 Harris 67; Eberly v. Groff, 9 Id. 251; Adams' Eq. 21; 2 Dan. Ch. Pr. 9, 10.

The opinion of the court was delivered by THOMPSON, J.

The heirs of Jonathan Pusey, deceased, were substituted as plaintiffs in this case, the bill having been filed in his lifetime.

The bill sets forth that an agreement was entered into between Jonathan Pusey and the defendants, by which the former granted to the latter a right to construct a private railroad through his property in the borough of Columbia, consisting of a lot of about seven acres, from their furnaces, situate above his property, on Shawnee Creek, so as to enable them to connect their road with the Columbia Railroad below him; with the privilege to him to use the same in common with them, with certain turnouts and connections, to be constructed for his benefit; the defendants to fence and maintain fences on each side of the road, through the plaintiffs' property; and for any damage he might sustain by reason of the construction of the road, compensation to be made, in addition to the privileges mentioned, by the payment of such money as might be awarded him for damages, by three disinterested men, mutually to be chosen by the parties. The bill charges that the road was not located according to the agreement of the parties — that the common use was not permitted to the plaintiff — that the connection and turnout were not constructed — that the assessors of the damages were not agreed upon by defendants, and the fencing was not done according to contract; and concludes with a prayer for a perpetual injunction against the maintenance and use of the road by the defendants. In addition to the general prayer that the defendants be required to answer the several matters charged in the bill, they were specially interrogated in regard to them, "whether the said defendants did not make and enter into a covenant and agreement with complainant, for the privilege of laying out and making as aforesaid a railroad through the property aforesaid of your complainant, and upon the terms and conditions, and with the restrictions and limitations as hereinbefore set forth and expressed to be done and performed and observed on the part of said Archibald and John Wright."

In answer to the bill, the respondents admit that they constructed their road on and over the property and premises of the plaintiffs, under a contract with the said Jonathan Pusey, and license by him to do so. That the agreement was entered into after application made to the Court of Common Pleas of Lancaster county, to obtain the right of way through the said premises under the laws of this Commonwealth, and upon the solicitation and suggestion of the said Pusey, that there was no necessity for such proceedings, as they could amicably agree therefor; that the road was and is located and constructed in strict conformity with the agreement. That the said Jonathan Pusey saw and knew of the location and construction of the road, and that no objection was made to the location and construction by him or his agent present, until after the work had so far progressed as to be ready for the rails. They further admit that damages to the premises were to be compensated upon the award or assessment of three men to be chosen for that purpose by the parties, and aver their readiness and willingness now and at all times to unite with complainants in making choice of them, and to pay what may be awarded by them; but they positively deny the existence of any of the other covenants or agreements alleged in the bill, such as the right to a common use of the road — the agreement to permit a connection therewith — the construction of a turnout, and fencing and maintaining fences along it.

The issue being thus made, the complainants introduce evidence on the subject of the injury done the property by the construction of the road. They now complain and assign for error, the rejection of the testimony of John Cooper, which they say tended to prove their case. But this is not apparent. He was not present at any bargain between the parties, but speaks of declarations of Jonathan Pusey only, on this point. His testimony was chiefly as to the injury to the premises, and damages. But being a party plaintiff on record, as guardian, and there being no order first had for his examination as a witness, the court decided that he was liable for costs, and his transfer of the trust to his ward, who had arrived at age, did not discharge him from liability; that he was therefore incompetent, and accordingly rejected his testimony, as they did that of Thomas S. Richards, a witness for the respondents. There was no error in this ruling.

In the opinion of the Court of Common Pleas the case stood simply on bil...