11 Pa. Super. 649 | Pa. Super. Ct. | 1899
Opinion by
In the trial of this case in the court below, the defendant claimed that the precise question involved therein had been determined in Becker v. Lebanon, etc., Street Ry. Co., 188 Pa.
The only question for our consideration is whether or not the proceeding in equity in Becker v. St. Ry. Co., supra, was an actual determination of the question involved in this action of ejectment. If it was, the judgment of the court below must stand. The report of the case in 188 Pa. 484, supra, is very full, and an examination of it leaves no doubt as to what was involved in it and determined by it. In that case the second of the plaintiff’s prayers for relief was “ That the defendant be commanded, directed and enjoined to at once abate and remove any portion of the said railway, its embankment, ties, rails and fittings, poles and wires, where the same had been constructed and are located and in position on the said Berks & Dauphin turnpike road in the said township of South Lebanon in front of and along the land of the plaintiff, as complained of, and to leave the said turnpike road in as good condition, repair and shape and the plaintiff’s facilities for coming and going to and over his land by way of the said turnpike road at the said place as they were, before the said railroad was constructed.” This prayer was denied in the court below and that denial affirmed in the Supreme Court. What would have been the effect in the present case of a verdict for the plaintiff, a judgment entered thereon and a writ of habere facias possessionem issued therein? The sheriff in execution of that writ would undoubtedly have done precisely what the plaintiff asked to have done in his prayer for relief quoted above. He could have done nothing more and the defendant would have been satisfied with nothing less. The precise question, therefore, was determined in the bill in equity above referred to, and that determination must stand and bar a recovery in the present case. It is true that in the opinion of the Supreme Court it is said: “ Appellant plants himself firmly on his legal right, and, if he were in a court of law, his position would be incontestable, but'he has come into a court of equity, asking its aid by injunction, which is of grace and not of right; ” but in the same opinion the manner in which that legal right is to be enforced and its infraction atoned for is clearly and distinctly stated as follows: “ In view of the learned judge’s findings in the present case on the loss to the defendant, the inconvenience to the public, the small
All of the assignments of error, whether relating to the admission of testimony or the charge of the court, embrace this single question.
A careful consideration of the whole case and of the judgment of the court in the equity proceeding leaves no doubt in our mind of the correctness of the disposition of the present case in the court below.
Judgment affirmed.