Wolbert v. City of Philadelphia

48 Pa. 439

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1865
• Status: Published

Opinion

Per Curiam.

— The plaintiff was not in limine by the Act of Assembly of April 8th 1846, § 1, Purd. 404, which forbids any court of equity in the city of Philadelphia to grant or continue injunctions against the erection or use of any public works of any kind, erected or in progress of erection under the authority of an act of the legislature, until the questions of damages shall be finally decided by a common law court.

We consider Fairmount Park a public work within the meaning of this Act of Assembly. And it is in progress of erection under the authority of legislation, both state and municipal. The injury complained of in the plaintiff’s bill was occasioned by the “progress” of the work, and he has instituted no proceedings at law to settle his damages.

Upon this state of facts it would seem that the plaintiff is barred out of courts of equity by the above Act of Assembly, unles's, indeed, we limit the act to works erected or in progress at its date. After reflection on the point, we think the words “ erected or in progress” relate not to the date of the enactment, but to the time of the resort to a court of equity; and so construed, the plaintiff has no right to be in such a court.

The decree dismissing the plaintiff’s bill is affirmed, on the ground that the court has not jurisdiction.