Corey v. Edgewood Borough , 18 Pa. Super. 228 ( 1901 )

Opinion by

Rice, P. J.,

1. Inasmuch as the plaintiff sued the defendant as a borough and alleged in the bill that it is a borough, we do not think it competent for him to say upon the hearing of the cause that it had not the powers of a legally incorporated borough by reason of the fact that the petition for its corporation was not recorded, especially as the decree of incorporation contains every element of notice and description required by law and was duly recorded.

2. Whatever might be said of the failure to transcribe the grading and paving ordinance in a separate book kept especially for the purpose if the bill had been filed before the work was done, we agree with the court below in holding that, as the plaintiff did not invoke the aid of equity until after the work under the ordinance was well in progress and the injury complained of, that is the removal of the tracks, was complete, the “plaintiff will have obtained all the relief which he is entitled to in equity by having an injunction to prevent further interference by the borough with the right of way, and with his replacing his railroad tracks at the present grade of the street, leaving him to the remedies provided by law to recover such damages as he may have sustained by reason of the change of the grade of the street.” We think this conclusion is justified by the principles enunciated in Heilman v. Lebanon, etc., Street Railway Co., 175 Pa. 188; 180 Pa. 627, Becker v. Lebanon, etc., Street Railway Co., 188 Pa. 484, Mackintyre v. Jones, 9 Pa. Superior Ct. 548, and Jones v. Pittsburg, McKeesport, etc., Railroad Co., 11 Pa. Superior Ct. 202.

3. Under the evidence and the finding of the court below it does not clearly appear that the plaintiff is the exclusive owner of the right of way. Such being the case we think the court below was right in holding that the damages occasioned by the change of grade should be assessed in a single proceeding where the rights of all persons interested will be protected.

The decree as modified and amended in No. 164, April term, 1901, is affirmed and the appeal of J. B. Corey is dismissed at his costs.