Bunnell's Appeal, 69 Pa. 59

Bunnell's Appeal

69 Pa. 59 | Pa. | 1871

The opinion of the court was delivered, May 8th 1871, by

Agnew, J.

It is not to be denied that the Supreme Court and the several Courts of Common Pleas have jurisdiction to restrain public nuisances, under certain circumstances. This power is conferred by the 5th clause of the 13th section of the Act of 16th June 1836, extended over the state by subsequent legislation. But the power will be exercised only when the right is clear and not doubtful, and when the threatened injury is of a permanent, or an irreparable character. The mere fact that there is a remedy at law by indictment or action will not alone prevent the exercise of the power, but it is a reason why the jurisdiction of chancery should be confined to cases of a very plain character, where the injury is irreparable and cannot await the slow progress of the legal redress. The authorities upon this branch of equity will be found to be pretty fully collected in the cases of Commissioners v. Long, 1 Parsons’ Eq. Cases 143, and Commonwealth v. Rush, 2 Harris 186.

Tested by these principles we think the decree of the court cannot be supported upon two grounds, to wit, the uncertainty of the location of the public road upon which the alleged nuisance was erected, and the temporary character of the structure placed upon the alleged route of the road. While it must be conceded that the evidence of a public road being laid out by authority of law in the vicinity of the locus in quo is indisputable, and that an opening order was issued, there is really no reliable evidence that the route followed the lane or road through James Bunnell’s farm, on which he built the stone walls in question, or that it was even opened there under the opening order. True, there is evidence of a narrow lane passing through his land, and that work has been done on it under the authority of the supervisors of the township, and other circumstances from which a jury possibly might infer that the road was located there. But on the *63other hand there are countervailing circumstances which involve the route in doubt. It is admitted on all hands that the road was never opened throughout its whole length, and that the travelled route does not correspond in many places with the survey of the road as returned by the viewers. It has been shifted at many points and has been disputed and closed for many years by the occupants of the Bunnell farm, by brick fences, poles, bars, and gates. It is said by a number of witnesses that the road or lane through that farm coincides substantially with the survey of the laid out road. But even this is by no means clear, indeed is extremely doubtful. Doubtless the lane does correspond with the survey as made by the surveyors, Miller and Hine, but this does not prove that it corresponds with the original survey or location by the viewers. The surveyors admit that they found no trace of an original survey, dating back to the year 1820, and that they had no guide in beginning. True, they were shown the place where the house of Evans had stood, but how far the starting-point was from the house no one living can tell, and no evidence remains to indicate. The record calls for it as near the house. They began twenty-two perches from it. What warrant was there for this, except that by starting there their route would coincide with the lane. As they proceeded, their line crossed and recrossed the travelled route at many places, deviating from it sometimes fifteen and eighteen perches; and the last distance in the record falling short of the terminus by ninety perches. What clear evidence is there then that the surveys of these artists followed the original line of the viewers. Then again it is even more than doubtful whether the lane or road through the Bunnell farm was opened through that route, while the proof is clear it was not done under the direction of the supervisor. The two Bunnells, Benjamin, senior and junior, both testify that the road was opened by the elder Bunnell, thirty-seven or thirty-eight years ago, or thirteen years after the location by the viewers for private use, and when first opened the supervisor did not direct him where to work. When this is coupled with the other facts in the cause, it leaves the mind in a state of uncertainty whether the locus in quo is the public road, and the case becomes one to be settled by the verdict of a jury.

Finally, the alleged nuisance is clearly not one of that character which should invoke the aid of a chancellor. It is but a ay all of stone and timber built across the road, a mere barricade, to prevent passage, temporary in character, easily removed, and inexpensive. A few hours’ work after a conviction by indictment and trial would remove the obstruction at a small cost of money. It is neither permanent nor irreparably injurious. Upon a view of the whole case, therefore, we are of opinion it is one where the plaintiff should be sent into the courts of law for his redress, civil *64or criminal, provided both at common law and by statute. This is not the ordinary case, which was evidently in the mind of the learned judge, of an old and long-known road, clearly indicated by usage, by the recognition of the highway authorities and other sufficient evidence of its lawful location, where the loss of the original evidence is fully supplied by the facts. But here the facts that the road was never opened throughout its entire length, that through the Bunnell farm it was opened many years after the view by private hands, that the surveys lately made had no reliable beginning or ending point, and that the route has been disputed many years, are all reason to lead a chancellor to doubt and to send the case to a jury, while the obstruction complained of is but an unimportant barricade made to contest the right, and not a permanent or valuable erection, or likely to produce irreparable injury.

The character of this contention evidently requires that the defendant should hear his share of the expense of it.

The decree of the Court of Common Pleas is therefore reversed, and it is ordered that the costs be paid by the plaintiff and defendant in equal proportions.