Cooke v. Central District & Printing Telegraph Co.

21 Pa. Super. 43 | Pa. Super. Ct. | 1902

Opinion by

W. D. Porter, J.,

This proceeding was irregular from its inception. It commenced by a petition of the plaintiff to the judge of the court of common pleas of Greene county, to restrain the defendant company from erecting a telephone pole on the land of the petitioner. The learned judge made an order directing that an injunction issue. The defendant company filed an answer and moved the court to dissolve the injunction and dismiss the plaintiff’s bill upon the grounds that the same offended against the rules of equity practice adopted by the Supreme Court in the following particulars: 1. The bill was not printed as required by Rule 14 and was not accompanied by a certificate ; that there had not been time to print the same. 2. That there was not endorsed upon the bill the notice to appear required by Rule 4. 3. That the bill did not set forth that it was filed or intended to be filed in a court of common pleas siting in equity. 4. That the plaintiff does not call bis said application a bill but a petition, which could not be entertained. The court overruled the motion to dissolve the injunction, and made an order that, “ the petition filed in this case is ordered to be filed as an injunction bill and leave given the plaintiff to amend said petition so as to conform to the requirements of rule of court as to printing.” This order could have no further effect than to permit the plaintiff to print the petition as filed. “ The hand of equity is supposed to be very plastic; but it is beyond even the power of a chancellor to take up such a proceeding as this, and at a single cast to mould it into a shape to bind the rights of parties giving no consent to the form of proceeding:” Forward School District’s Appeal, 56 Pa. 318. The equity rules adopted by the Supreme Court, under the direction and by the authority of the act of the legislature, have all the force and effect of a positive statute. The prothonotary ought not, in the absence of the proper certificate, to have permitted the unprinted petition to be filed, but he may have been misled by the fact that the petition did not upon its face purport to be a bill in equity. The failure to indorse the bill with a notice to appear, as required by the rule, was an irregularity which, the question having been raised at the proper time, ought to have resulted in the dissolution of the preliminary injunction and the dismissal of the bill: Cassidy v. Knapp, 167 Pa. 305.

Independently of the total departure from the forms and practice of equity, the bill was fatally defective in substance. The only allegation of fact was, that the defendant corporation was about to erect a telephone pole on the property of the petitioner, and tha.t the erection of said pole would be a great and irreparable damage to said property. If the defendant corporation was without authority to erect the pole, or such erection would be unlawful, the bill should have so averred: Delaware County’s Appeal, 119 Pa. 159; Kemble v. Phila., etc., R. R. Co., 140 Pa. 14; McHale v. The Easton & Bethlehem Transit Company, 169 Pa. 416. The erection of a telephone pole upon land may be an injury to the property, but such injury is usually one winch can be fully compensated in damages : Lockhart v. Craig Street Railway Company, 139 Pa. 419. When because of peculiar circumstances the remedy at law is not adequate the specific facts ought to be averred: Gilfillan v. Grier, 145 Pa. 318.

The evidence which plaintiff offered in support of his bill established that the point at which it was proposed to erect the pole was not upon private property, but at the curb line of two public streets in the borough of Waynesburg. The learned judge found as a fact that the defendant was a legally organized corporation of Pennsylvania and that the proper authorities of the borough of Waynesburg had by ordinance granted it the necessary franchise and right to construct lines of telegraph and telephone wires within the limits of said borough with the right to erect poles in and upon the several streets and alleys of said borough. A street in a city is subject to a greater servitude in favor of the public than a road in the open country. The borough had the right to authorize the use both of the cartway and sidewalk of the street for any urban purposes, and for such use the owners of abutting properties are not entitled to damages, unless there be some direct or consequential injury to the abutting land: McDevitt v. People’s Natural Gas Company, 160 Pa. 367. The rights of a property owner with regard to a telephone pole erected in a public street of a borough are not the same as when the location is upon his private land. This plaintiff ought to have made the averments of his bill in harmony with the facts.

The decree of the court below is reversed; and it is now ordered that plaintiff’s bill be dismissed and that he pay the costs in the court below and upon this appeal.