25 Pa. 161 | Pa. | 1855
The opinion of the Court was delivered by
This is a bill by one who claims common of pasture in certain land called the South Common in Allegheny City. The prayer is for an injunction to restrain the railroad company from using any part of the common for the purposes of the railroad. By the Act of 11th September, 1787, the purchasers of in-lots in the town became entitled to common of pasture in 100 acres of land reserved for the purpose by the state when the lots were sold by her authority. The right of the state has since been transferred to the City Councils, and the latter, in consideration of the sum of $300 annually, have granted to the railroad company a perpetual lease of the right of way through the common of the width of fifty feet. Under this grant the railroad was located and constructed in the summer of 1851. No objection was made by the plaintiff to this proceeding for about two years, although it took place under his view. The South Common, before the grant to the railroad company, was a strip of land of the width of 144 feet. It has not been enclosed. It has been as open to the public at large as to the commoners themselves. The herbage is about as abundant as that which might be found in a recently disinterred street of Herculaneum. The plaintiff’s right to take the herbage by the mouths of his cattle is of no appreciable value. Neither he nor those under whom he claims the lot to which the common is said to be appurtenant, have exercised the right within twenty-one years. But, on the other hand, neither the state nor the City Councils, while owning the soil, have exercised acts of ownership adverse to the plaintiff’s claim. The Act of 13th April, 1840, is relied on as containing an acknowledgment of the right of common. We may concede for the present, without, however, deciding the point, that this recognition, together with the absence of any adverse enjoyment or claim, may be sufficient to preserve the right of common of pasture from the influence of nonuser. But these circumstances will not preserve it from destruction by the positive acts of the commoner himself. The evidence is sufficient to show that about forty years ago the owner of the lot claimed by the plaintiff gave twenty feet from the rear of his lot, for the purpose of widening a twenty feet alley, called Water Alley, into a street of the width of forty feet, and that at the same time he extended this front line of his lot, so as to enclose twenty feet of the land in which he claims common of pasture. The same thing was done by the other lot-holders, whose lots were situated between the South Common and Water Alley. Water
The annoyance alleged to arise from the necessary uses of the railroad, is not a nuisance per se. The learned president of the District Court has shown that, until this be determined by a jury to be a nuisance in fact, the Court will not interfere by injunction on that ground.
On the whole, the decree of the District Court, denying the injunction and dismissing the bill, ought to be affirmed.
Mr. Justice Woodward concurs in this opinion. Mr. Justice Lowrie did not sit in the case. The other two judges are in favour of granting the injunction. The Court being equally divided, the result is that the decree of the District Court stands affirmed.
Decree affirmed.