Wakeling v. Cocker , 23 Pa. Super. 196 ( 1903 )

Opinion by

Oklady, J.,

The bill in equity, filed by the plaintiff, might well have been dismissed for other reasons than the one given by the court below. There was no proof of irreparable injury, and the terms of the contract or arrangement by which the cornice in dispute was originally erected was not shown in proof. Nor is there any testimony as to any change of the location of the legally established building line on Frankford avenue. To sustain the appellant’s contention would be to authorize the maintenance of the cornice over a highway of the city. A mere legal right in the plaintiff will not move the court, if on a consideration of the whole case an injunction ought not in good conscience to issue: Powers’s Appeal, 125 Pa. 175; Penna. Railroad Co. v. Glenwood, etc., Railway Co., 184 Pa. 227. In this case there were disputed facts which have been passed upon by the court, which we will not disturb, as we are not satisfied that there was manifest error in the conclusion reached: Hancock v. Melloy, 187 Pa. 371; McMillin v. McMillin, 183 Pa. 91; Barlott v. Forney, 187 Pa. 301. As was said by Mr. Chief Justice Gibson, in the case of Barter v. Commonwealth, 3 P. & W. 253, the title of a municipal corporation to the soil of its streets, for those purposes that concern the public enjoyment and convenience, is paramount and exclusive; and no private occupancy, for whatever time, whether adverse or permissive, can vest a title inconsistent with it. A recognition of the same doctrine may be found in the case of Com. v. Alburger, 1 Wh. 469; Com. v. McDonald, 16 S. & R. 390; Penny Pot Landing Case, 16 Pa. 79; Kopf v. Utter, 101 Pa. 27. The public is not deprived of its rights by encroachment. Buildings erected on highways acquire no rights on account of time or expenditures: Wartman v. City of Philadelphia, 33 Pa. 202; Philadelphia v. P. & R. Railroad Co., 58 Pa. 253; Smith v. Union Switch and Signal Co., 17 Pa. Superior Ct. 444.

The assignments of error are overruled and the judgment is affirmed.