Opinion by
Mr. Justice Mitchell,
When this case was here before, 148 Pa. 621, it was upon the commonwealth’s appeal from the refusal of an injunction. The bill was filed to prevent the rebuilding of the approach to the bridge upon the grounds as stated in the opinion of this court, that it was ultra vires and was a public nuisance by interference with the highway. The master negatived both grounds and advised a dismissal of the bill, but the court below was of opinion that the approach was in effect a relocation of the terminus of the bridge, and as such was ultra vires. An injunction against the rebuilding was however refused on the ground that the disadvantages would be without corresponding benefit. The complainant was therefore left to its remedies at law. The decree was affirmed in this court but upon the broader ground that the proposed approach was not a relocation nor ultra vires, but an exercise of the right to rebuild the bridge at a safe height above the water, as demonstrated by experience, and the necessary ancillary right after so building it to construct a proper and convenient approach.
The present appeal is by the defendant and raises an entirely different question. The decree of the court below enjoined the appellant from supporting the approach upon a pier erected wholly or in part within the limits of the Carbondale road, and [399] commanded the defendant, “immediately after building said elevated approach, to remove the present stone pier from the limits of the said highway.” After the affirmance of this decree, the commonwealth filed a supplemental bill to enforce the order to remove the stone pier from the limits of the highway, and the court made a new decree commanding the removal within ninety days. From this decree the defendant has taken the present appeal.
We are obliged to hold that this decree was improvidently made. Neither it nor that part of the original decree on which it rests, is capable of specific enforcement without the establishment of the essential but disputed fact of the encroachment of the existing pier on the Carbondale road. That fact has never been judicially ascertained. The master refused to find it. In the view that he took of the case recommending the. dismissal of the bill, the fact became immaterial. It is true he reported that in his opinion the preponderance of the testimony was “ in favor of the view that this stone pier is partly at least in the original lines of the Carbondale road,” but he also reported that it was in the right of way taken by the Pa. & N. Y. Canal and R. R. Co., and his conclusion was that “ the evidence as to the pier is insufficient to warrant a chancellor in decreeing its removal.” The learned court below in its original opinion accepted the master’s remarks upon the preponderance of the testimony, as a finding that part of the pier was in the highway, and adverting to the rule that the public is entitled to the whole highway whether ordinarily used or not, held that the removal of the pier in part at least must be commanded. In the face of the master’s final explicit finding that the evidence was insufficient to warrant a chancellor in decreeing its removal, the view of the court can hardly be sustained, but even if it could, the decree would still be improvident, for the question remained, what part of the pier and how much of it was within the lines of the road. In this connection the master’s use of the words within “the original lines” is very significant, coming immediately after the finding that “the exact limits of the Carbondale road as originally used were undefined,” and followed by the recital of the siibsequent changes in the road which will be noticed further on. In fact this part of the opinion and decree was of very subordinate [400] importance, and necessarily received less attention than the real contest which was upon the right to rebuild the overhead approach at all. Whether, if rebuilt, it should be rested on so much of this pier as might be in the highway, was a mere makeweight at best, and the court in decreeing upon it reached its “ conclusion with less hesitation because the master reports that it (the pier) is not absolutely necessary to the structure.” The court made no finding of the facts for itself from the evidence. The decree might and perhaps ought to be accepted as an inferential finding that a part of the pier is within the highway, but it was a finding on the master’s report, and the inference could go no further than his language would carry it, that the pier “ is partly, at least, in the original lines ” of the road. The essential fact, what part if any is within the present lines, remained undetermined, and without it the plaintiff had no claim for relief with regard to the pier.
On the hearing of the supplementary bill and answer, the court below treated the first decree and its affirmance by this court, as conclusive, and without further inquiry into the fact of encroachment of the pier on the highway, decreed its removal in ninety days. This was error. The first decree was incapable of enforcement for the reasons already stated, and it got no assistance from the action of this court. That part of the decree was in favor of the commonwealth, and of course on the commonwealth’s appeal it was not objected to, assigned for error, nor passed upon by this court in any way.
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Opinion by
Mr. Justice Mitchell,
When this case was here before, 148 Pa. 621, it was upon the commonwealth’s appeal from the refusal of an injunction. The bill was filed to prevent the rebuilding of the approach to the bridge upon the grounds as stated in the opinion of this court, that it was ultra vires and was a public nuisance by interference with the highway. The master negatived both grounds and advised a dismissal of the bill, but the court below was of opinion that the approach was in effect a relocation of the terminus of the bridge, and as such was ultra vires. An injunction against the rebuilding was however refused on the ground that the disadvantages would be without corresponding benefit. The complainant was therefore left to its remedies at law. The decree was affirmed in this court but upon the broader ground that the proposed approach was not a relocation nor ultra vires, but an exercise of the right to rebuild the bridge at a safe height above the water, as demonstrated by experience, and the necessary ancillary right after so building it to construct a proper and convenient approach.
The present appeal is by the defendant and raises an entirely different question. The decree of the court below enjoined the appellant from supporting the approach upon a pier erected wholly or in part within the limits of the Carbondale road, and [399] commanded the defendant, “immediately after building said elevated approach, to remove the present stone pier from the limits of the said highway.” After the affirmance of this decree, the commonwealth filed a supplemental bill to enforce the order to remove the stone pier from the limits of the highway, and the court made a new decree commanding the removal within ninety days. From this decree the defendant has taken the present appeal.
We are obliged to hold that this decree was improvidently made. Neither it nor that part of the original decree on which it rests, is capable of specific enforcement without the establishment of the essential but disputed fact of the encroachment of the existing pier on the Carbondale road. That fact has never been judicially ascertained. The master refused to find it. In the view that he took of the case recommending the. dismissal of the bill, the fact became immaterial. It is true he reported that in his opinion the preponderance of the testimony was “ in favor of the view that this stone pier is partly at least in the original lines of the Carbondale road,” but he also reported that it was in the right of way taken by the Pa. & N. Y. Canal and R. R. Co., and his conclusion was that “ the evidence as to the pier is insufficient to warrant a chancellor in decreeing its removal.” The learned court below in its original opinion accepted the master’s remarks upon the preponderance of the testimony, as a finding that part of the pier was in the highway, and adverting to the rule that the public is entitled to the whole highway whether ordinarily used or not, held that the removal of the pier in part at least must be commanded. In the face of the master’s final explicit finding that the evidence was insufficient to warrant a chancellor in decreeing its removal, the view of the court can hardly be sustained, but even if it could, the decree would still be improvident, for the question remained, what part of the pier and how much of it was within the lines of the road. In this connection the master’s use of the words within “the original lines” is very significant, coming immediately after the finding that “the exact limits of the Carbondale road as originally used were undefined,” and followed by the recital of the siibsequent changes in the road which will be noticed further on. In fact this part of the opinion and decree was of very subordinate [400] importance, and necessarily received less attention than the real contest which was upon the right to rebuild the overhead approach at all. Whether, if rebuilt, it should be rested on so much of this pier as might be in the highway, was a mere makeweight at best, and the court in decreeing upon it reached its “ conclusion with less hesitation because the master reports that it (the pier) is not absolutely necessary to the structure.” The court made no finding of the facts for itself from the evidence. The decree might and perhaps ought to be accepted as an inferential finding that a part of the pier is within the highway, but it was a finding on the master’s report, and the inference could go no further than his language would carry it, that the pier “ is partly, at least, in the original lines ” of the road. The essential fact, what part if any is within the present lines, remained undetermined, and without it the plaintiff had no claim for relief with regard to the pier.
On the hearing of the supplementary bill and answer, the court below treated the first decree and its affirmance by this court, as conclusive, and without further inquiry into the fact of encroachment of the pier on the highway, decreed its removal in ninety days. This was error. The first decree was incapable of enforcement for the reasons already stated, and it got no assistance from the action of this court. That part of the decree was in favor of the commonwealth, and of course on the commonwealth’s appeal it was not objected to, assigned for error, nor passed upon by this court in any way.
The present question therefore is now before us for the first time, and we are of opinion that the decree of the court below is erroneous not only on the ground already discussed, but on the merits. The case bears very strong indications of belonging to the class in which the name of the commonwealth is used not to enforce substantial rights in the public interest, but to assert a technical title for private ends. The Carbondale road, on which this pier is claimed to encroach, was never laid out by legal proceedings, but became a highway by popular use largely if not chiefly by persons coming to and from the ferry which crossed the river at this point. It ran parallel to the river, at the foot of a bluff or steep bank sixteen feet in height, and was without any defined limits. Between it and the river the state at a date fixed by the master as “ some fifty years ago,” con[401] structed the North Branch canal, over which persons going to the ferry crossed by a bridge on the line of the ferry road, now known as Mill street in the borough of' Pittston. In 1850 the appellant built its bridge, and in 1852 the borough of Pittston laid out its main street on the top of the bluff parallel to the Carbondale road and only twenty to twenty-five feet from it. In 1860 two railroads were built crossing the Carbondale road diagonally at grade, and. later the canal passed into the hands of the Penna. & N. Y. Canal & It. R. Co., which drained it, built tracks upon its bed, and took down the bridge at the ferry road. In 1875 the larger part of appellant’s bridge across the river having been swept away by flood, it was rebuilt at a higher level, and among other reasons to avoid the dangerous grade crossings of the railroad, an elevated approach was built, resting partly on the disputed pier, and connecting the bridge at its new grade with Main street on top of the bluff. This change was made with the consent of the borough of Pittston, and of some if not all the owners of property on the ferry road, including the predecessors in title of Mr. Ross who is really the active plaintiff in this litigation. In consequence of these changes, as the master reports, “ instead of the Carbondale road the great mass of the people used Main street which was every way preferable.”
The same popular action which established the road in the beginning, relegated it to disuse when it no longer served the public convenience. On this subject the master reports, that “ in the view I take of this case, public rights are not involved. . . . The only private property that was shown to be injured is the property of Mr. Ross. His purchase was after the elevated bridge was built, and that fact must have been in the minds of the parties when the sale was made.” And the learned court below based its refusal of the injunction asked by the bill, largely on “ the advantages to the public accruing from the maintenance of the present elevated approach, and the disadvantages without corresponding benefit to the public which would result from its demolition.”
These considerations could not of course take away or impair public rights in a highway once acquired, but they are reasons, why a court of equity may withhold its aid when no real public, interest is to be subserved, and more especially why it may require the public right to be strictly proved. Upon this last [402] principle we rest this case. The commonwealth has failed to establish the fact of the occupation of any part of the highway by the pier in question. The master reported that it was “ impossible to say with any degree of certainty, whether or not the stone pier is in the highway,” and further that “ the evidence as to the pier is insufficient to warrant a chancellor in decreeing its removal.” There has been no finding to the contrary except as already noted by insufficient inference, .and the conclusion of the master that the bill should be dismissed was the logical and proper disposition of the case. This appeal comes too late for us to take that course now with regard to the original bill, but the commonwealth having found it necessary to invoke the aid of the court by supplemental bill to enforce the original decree, we are entitled to examine if that decree is one that we can enforce, and if so, whether in sound equity we ought to do so. For reasons already stated we are of opinion with the appellant on both these questions.
Decree reversed and injunction dissolved with directions to dismiss the supplemental bill. Appellee to pay all costs subsequent to the filing of said supplemental bill.