Opinion,
Mr. Justice Mitchell :
The defendants were the authorized agents of the Lehigh Coal & Navigation Gompany, and their rights must be judged *148by the authority of that company to do the acts complained of. The place of the alleged nuisance was part of a public road in Lehigh township, and was also part of the tow-path of the navigation company. Both parties, therefore, had the right of way at this point, but that of the navigation company was prior and superior. It existed by direct legislative grant long before the road; and when the latter was opened, the limit of its legal right was to cross with as little interference as possible to navigation, including the use of the tow-path. Undoubtedly, when two public franchises have to be exercised at the same point, each must be regulated by due regard to the other, but the burden of proof is on the last comer to show that he is encroaching no more on the prior privilege than necessity requires.
In the present case the location of the road at this point was opposed by the navigation company on the ground that it would interfere with their franchises, and their exceptions to the report of the viewers were dismissed on the express ground that the road would not and could not legally be allowed to do so. It appears from the opinion of the learned court in that case, that the chief interference anticipated was from the contemplated building of a bridge across the canal and tow-path. We gather, however, from the present record that the contemplated bridge was never built, but instead, the public crossed directly over the lock-bridge and tow-path; the supervisor treating them as part of the public road for that purpose, and raising the tow-path so as to make the road easier for public travel. Whether this was in strict accordance with the decree of the court confirming the view of the road, or with the rights of the navigation company, we need not at present inquire. It is sufficient that it established a status as to the respective rights of the two highways, and may be fairly considered as doing so under the implied sanction of the court in its decree in the road proceedings.
This status lasted more than two years, from June, 1888, to November, 1890, when it was changed by the supervisor. The facts are not disputed. The point of intersection was a hollow as to the road, while it was a rise or elevation as to the towpath. It was to some extent an inconvenience to both. The supervisor, under the pretence of repairs, filled in the hollow *149for the convenience of his public, without regard to the corresponding inconvenience to the navigation company. This action was apparently of his own head, or at the suggestion of interested parties in the neighborhood, without the sanction of the court, without legal proceedings, and without any authority at all to justify it. The defendants, in the performance of their duties to the navigation company, removed the recent filling-in, and restored the prior condition of the locality. In so doing they were clearly within their legal rights. They would have been justified in preventing the filling-in, but they adopted the more prudent course of peaceably removing it instead. Their action bears no possible analogy to the conduct reprobated in Easton Ry. Co. v. Easton, 138 Pa. 505, or Cooke v. Boynton, 135 Pa. 102. The unlawful and violent act here was that of the supervisor in changing the previously established grade. The erroneous theory on which this was done runs all through the case, including the trial, that the place had become so completely a part of the public road that the defendants were to be treated as trespassers, and their acts as those of strangers on an ordinary highway, instead of joint owners whose rights were to be considered in any change of the condition of the joint property.
On the undisputed facts in evidence, the defendants’ fourteenth point should have been affirmed, and the jury directed to render a verdict of not guilty.
Judgment reversed.