Appeal, No. 554 | Pa. | May 3, 1897
Opinion by
The learned referee prepared a report in which he recommended a decree 'in conformity with the prayer of the bill. After argument on exceptions to the report he concluded that as the right of way dedicated by the defendant to public use was in Chester county where the plaintiffs resided and the residence of the defendant was in Montgomery county, the court in which the bill was filed had no jurisdiction of the matters complained of in it. He accordingly modified his report and recommended a decree dismissing the bill and dividing the costs between the parties. The learned court, on exceptions to the report as modified, held that the question of jurisdiction should have been decided in favor of the plaintiffs. In so holding the court was clearly right. The parties being within the jurisdiction of the court, the court will under ordinary circumstances grant relief even in reference to a subject-matter beyond the territorial cognizance of the court: Penn v. Lord Baltimore, 1 Vesey, Sen. 444; Vaughan v. Barclay, 6 Whart., 392" court="Pa." date_filed="1841-04-03" href="https://app.midpage.ai/document/vaughan-v-barclay-6314234?utm_source=webapp" opinion_id="6314234">6 Wharton, 392; Munson et al. v. Tryon et al., 6 Phila. 395; Jennings Bros. & Co. v. Beale, 158 Pa. 283" court="Pa." date_filed="1893-11-06" href="https://app.midpage.ai/document/jennings-bros--co-v-beale-6241851?utm_source=webapp" opinion_id="6241851">158 Pa. 283; Roper v. Roper, 3 Tenn. 1" court="Tenn." date_filed="1811-07-06" href="https://app.midpage.ai/document/cotton-v-greenlee-3894724?utm_source=webapp" opinion_id="3894724">3 Tenn. 1 Ch. 53; Parkes v. Parkes, 3 Tenn. Ch. 647; Wood v. Warner, 15 N. J. Equity, 81; Topp v. White, 12 Heisk. (Tenn.) 165; Great Falls Mfg. Co. v. Worster, 23 N. H. 462; DeKlyn v. Watkins, 3 Sandf. Ch. (N. Y.) 185. The case of Morris v. Remington, 1 Parsons’ Select Eq. Cases, 387, which was cited by the referee as warranting the modification of his first report, was clearly inapplicable to the case in hand, and not opposed to the rule under which
We need add nothing further to what was said by the cfourt below respecting jurisdiction. The court however thought that the defendant was entitled to have the bill dismissed at the costs of the plaintiffs because he averred in his answer to it that he did not intend to build a schoolhouse on the strip of land in question without their consent, and because in its opinion this part of his answer had not been overthrown by the evidence. This view of the case does not appear to have been suggested by any exception before the court, and it seems to have entirely overlooked or disregarded the referee’s finding of facts. He distinctly found that “prior to the filing of the bill the defendant threatened to build a schoolhouse upon one end of the boulevard, which would materially affect its use as a highway, and would permanently injure the plaintiffs.” Besides, the defendant’s averment in this particular must be considered in connection with other averments in his answer and his testimony in the case. These, so considered, are clearly evincive, of a purpose on his part to appropriate the strip of land in question for his exclusive benefit in plain disregard of his dedication of it to public use, and of the representations on which he sold the lots to the plaintiffs. His testimony respecting dedication was uncorroborated, and flatly opposed by his own acts and the testimony of many reputable and disinterested witnesses. But it is not necessary to discuss or specifically refer to the evidence applicable to the issues of fact made by the bill and answer. We have read and considered the whole of it, and our conclusion is that it fully sustains the referee’s finding of facts, and warrants and requires a decree restraining the defendant from obstructing or interfering in any manner with the free use by the public of the boulevard or highway in question.
Decree reversed and record remitted to the court below with direction to enter a decree in accordance with this opinion. The costs to be paid by the appellee.