Wettengel v. Allegheny County Light Co. , 223 Pa. 79 ( 1909 )


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  • Opinion by

    Mr. Justice Fell,

    The findings of fact and the conclusions of law, clearly and concisely stated by the learned judge of the common pleas, fully sustain the order dismissing the original bill and the decree en*83tered on the cross bill. It is to be observed that the decree asked for by the cross bill is broader than the decree entered. The prayer of the bill is that the defendants be forever enjoined from constructing or maintaining any wires upon the highways of the city of Pittsburg, above or below or among any of the wires of the plaintiff. The decree made enjoins the defendants in the cross bill from maintaining the wire described in the findings of fact, and directs the removal of the same. The wire described in the findings of fact is one that passes across the street near the plaintiff’s wires, the maintenance of which interferes in some measure with the use of the street by the plaintiff, endangers the lives of its customers, imperils its property, and entails an additional expense for inspection. The right to maintain the wire in this place, and incidentally any wire in any place where it would interfere with the use of the street by the plaintiff or endanger its property or entail upon it additional expense, was the right adjudicated.

    This was as far as the decree could properly go and, with this understanding of it, we affirm it. The plaintiff’s right was based on a public use of the street' by virtue of charter privilege and municipal consent, and any interference with the safe and convenient use of its wires was an encroachment upon a public right that was paramount to any right in the abutting owners. Its standing in equity to maintain its bill was that it sustained a material and specific injury different in kind from that sustained by the public at large. The broader question of the right of the defendant to maintain a wire across the street where it would neither interfere with nor endanger the public use of the street, if this is practicable, was not involved in the proceeding.

    The decree is affirmed at the cost of the appellants.

Document Info

Docket Number: Appeal, No. 62

Citation Numbers: 223 Pa. 79

Judges: Brown, Elicin, Fell, Mestrezat, Mitchell, Potter, Stewart

Filed Date: 1/4/1909

Precedential Status: Precedential

Modified Date: 2/17/2022