51 Pa. Super. 506 | Pa. Super. Ct. | 1912
Opinion by
The plaintiff filed a bill in equity praying for a mandatory injunction to compel restoration of lateral support to land. The defendant filed an answer which, amongst other things, alleged that the plaintiff had a full, complete and adequate remedy at law; that the court, sitting as a court of equity, had no jurisdiction to grant the relief prayed for; and that the suit should have been brought at law. After hearing upon this preliminary issue, as provided in sec. 2 of the Act of June 7, 1907, P. L. 440, the court, in a well-considered opinion (which we refer to for an accurate and concise statement of the averments of the bill), sustained the objection to the jurisdiction and certified the cause to the law side of the court. Thereupon the plaintiff took this appeal.
The learned counsel for the plaintiff state the question involved as follows: “Has a court of equity jurisdiction to issue a mandatory injunction compelling the restoration of lateral support to a lot and building in a city of the second class where there is negligence in making an excavation in an adjoining lot, the result of which is to impose servitude on the land of the adjoining owner? ” But negligence is not directly averred in the bill, nor are facts averred from which it is to be legally implied, unless, as is argued, the act oí leaving the adjoining lot without support is negligence per se. No Pennsylvania case has gone to that extent, and we think the proposition is not sustainable on principle. According to the doctrine repeatedly expressed in the decisions of the courts of Pennsylvania and many other states of the Union, there is incident to land, in its natural condition, a distinct right to
The decree is affirmed and the appeal is dismissed, the costs of the appeal to be paid by the appellant.