Delaware & Hudson Co. v. Olyphant Borough

73 A. 458, 224 Pa. 387, 1909 Pa. LEXIS 802

Opinion

Per Curiam,

The appeal is from a decree awarding a preliminary injunction restraining the defendant from interfering with the plaintiff in the exercise of a right acquired by grant from the owner of the fee, to use the surface in mining and removing coal. As pointedly stated by the learned judge who heard the case: “The right which it asserts here is the' right to the use and enjoyment of certain of its land and tenements in accordance with the terms and purposes of the grant under which they are held. The injury which it seeks to prevent is the taking of some part of the property for public use without due process of law and just compensation.” On an appeal from a decree awarding or refusing a preliminary injunction we do not consider the merits of the case except to determine whether there was reasonable ground for the action of the court. The only claim of right by the defendant that is open for consideration at this time is that by ordinance it has adopted certain streets plotted by the owner of the fee after his grant of surface rights. This ordinance gave it no right as against the plaintiff.

The decree is affirmed at the cost of the appellant.