Hill v. Hittel

64 Pa. Super. 317, 1916 Pa. Super. LEXIS 296

• Court: Superior Court of Pennsylvania
• Decided: October 9, 1916
• Docket: Appeal, No. 179
• Status: Published

Opinion

Opinion by

Head, J.,

In tbeir bill filed tbe plaintiffs prayed for a mandatory injunction requiring tbe defendant to remove a certain platform scale wbicb be was constructing on land, tbe ownership in fee of wbicb was unquestionably in him. Tbe learned chancellor found on tbe evidence that tbe interest of tbe plaintiffs in tbe land was but an easement of way to enable them reach a public highway upon wbicb tbeir respective properties did not abut.

Tbe weigh scale complained of was of great importance to tbe defendant in tbe conduct of tbe business wbicb for many years bad been carried dn at that place either by him or bis predecessors in title. Incidental to the construction of tbe platform there .was some slight change of grade in tbe surface of tbe ground over which tbe plaintiffs bad tbeir easement' and some corresponding modification of tbe surface water flow thereon. Tbe learned chancellor, in a full review of all of tbe testimony, concluded that, as to some of tbe plaintiffs no injury at all bad been shown, and as to one tbe injury, although nominal, was so slight as to be unappreciable. Tbe defendant, in bis answer, expressed bis willingness to complete tbe improvement in such a way as not only to remove these slight inconveniences but to make tbe condition of tbe entire way much better and more satisfactory than it bad previously been. This offer of tbe defendant was accepted and incorporated into tbe decree wbicb was entered. As we read tbe testimony, there is no room to doubt tbe controlling finding of fact to wbicb we have averted is amply supported by evidence. Under such circumstances we can only say in tbe language of tbe Supreme Court in Mercantile Library of Philadelphia v. Fidelity Trust Company, 235 Pa. 5: “The learned court below has found as a fact that there was no substantial interference with tbe use of tbe passageway and we must accept this finding as binding upon us.”

Tbe nature of a mandatory injunction and tbe unusual conditions wbicb bring about tbe entry of such a decree have been stated both in the Supreme Court and this court: Wakeling v. Cocker, 208 Pa. 651; Mackintyre v. Jones, 9 Pa. Superior Ct. 543; Asbury v. Carroll, 54 Pa. Superior Ct. 97.

Keeping in mind the principle enunciated in these cases, we readily reach the conclusion the record before us presents no substantial ground upon which a mandatory injunction could properly rest. We are of opinion the decree entered by the learned chancellor was right and should not be interfered with.

Decree affirmed.