A. Wishart & Sons Co. v. Erie Railroad

Supreme Court of Pennsylvania

A. Wishart & Sons Co. v. Erie Railroad

128 A. 730, 283 Pa. 100, 1925 Pa. LEXIS 352

CourtSupreme Court of Pennsylvania

DecidedMarch 16, 1925

DocketAppeal, 62

StatusPublished

Cited by5 cases

This text of 128 A. 730 (A. Wishart & Sons Co. v. Erie Railroad) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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A. Wishart & Sons Co. v. Erie Railroad, 128 A. 730, 283 Pa. 100, 1925 Pa. LEXIS 352 (Pa. 1925).

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Opinion

Opinion by

Mb Justice Schaffer,

This bill was filed to enjoin the obstruction of an alleged road, crossing the railroad tracks and right-of-way of the corporations defendant, and leading into *102 plaintiff’s property. The court below refused the relief prayed for and dismissed the bill; plaintiff appeals.

In the bill, appellant characterized the road as a “road or way” without indicating whether it was a public or private one, but throughout its brief speaks of it as a “public crossing.” There is no question that the crossing was originally a bridge erected many years ago by the Commonwealth over a canal, to provide the then owner, whose land had been cut in two by the water course, with a connecting span. The canal was later abandoned and the land formerly devoted to it was acquired by defendant companies. At that time, the ground on both sides was owned by one person, who, however, in 1900 sold to several purchasers sections of the land on either side of the railroad.

It is clear that plaintiff is relying on the long use of the crossing (for more than twenty-one years) by the public to establish certain rights which it argues the railroad company cannot take away. If by the evidence produced appellant established the public nature of the “road or way” which constituted the crossing, it thereby showed that the bill of complaint was improperly brought in its name to obtain the relief sought. There is no allegation or evidence that the injury to plaintiff is peculiar in kind or differs more than in degree and extent from that sustained by the general public. Under these circumstances, the remedy for the obstruction of a public road, as in the case of any public nuisance, must be sought by the public authorities, either the attorney general or district attorney: Com. ex rel. Attorney General v. Kepner, 1 Pearson 182; Hobson v. Phila., 155 Pa. 131; Gold v. Phila., 115 Pa. 184; Sparhawk v. Union Passenger R. R. Co., 54 Pa. 401; Jones on Easements (1898), sec. 543; Goddard, Law of Easements, 6th ed. (1904), page 539; 32 Corpus Juris, pages 47, 295.

The decree of the court below is affirmed at appellant’s cost.

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Opinion by

Mb Justice Schaffer,

This bill was filed to enjoin the obstruction of an alleged road, crossing the railroad tracks and right-of-way of the corporations defendant, and leading into *102 plaintiff’s property. The court below refused the relief prayed for and dismissed the bill; plaintiff appeals.

In the bill, appellant characterized the road as a “road or way” without indicating whether it was a public or private one, but throughout its brief speaks of it as a “public crossing.” There is no question that the crossing was originally a bridge erected many years ago by the Commonwealth over a canal, to provide the then owner, whose land had been cut in two by the water course, with a connecting span. The canal was later abandoned and the land formerly devoted to it was acquired by defendant companies. At that time, the ground on both sides was owned by one person, who, however, in 1900 sold to several purchasers sections of the land on either side of the railroad.

It is clear that plaintiff is relying on the long use of the crossing (for more than twenty-one years) by the public to establish certain rights which it argues the railroad company cannot take away. If by the evidence produced appellant established the public nature of the “road or way” which constituted the crossing, it thereby showed that the bill of complaint was improperly brought in its name to obtain the relief sought. There is no allegation or evidence that the injury to plaintiff is peculiar in kind or differs more than in degree and extent from that sustained by the general public. Under these circumstances, the remedy for the obstruction of a public road, as in the case of any public nuisance, must be sought by the public authorities, either the attorney general or district attorney: Com. ex rel. Attorney General v. Kepner, 1 Pearson 182; Hobson v. Phila., 155 Pa. 131; Gold v. Phila., 115 Pa. 184; Sparhawk v. Union Passenger R. R. Co., 54 Pa. 401; Jones on Easements (1898), sec. 543; Goddard, Law of Easements, 6th ed. (1904), page 539; 32 Corpus Juris, pages 47, 295.

The decree of the court below is affirmed at appellant’s cost.

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128 A. 730, 283 Pa. 100, 1925 Pa. LEXIS 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-wishart-sons-co-v-erie-railroad-pa-1925.

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