Appeal, No. 332 | Pa. | May 25, 1893
Opinion by
This case comes before us on an appeal from the order of the court below dissolving a special injunction which had been granted on the filing of the bill, restraining the collection of taxes upon certain coal-pockets of the plaintiff. No answer was filed, no master or examiner was appointed to report the facts, no findings of fact were made, and no testimony was taken to support the contention of either party. Two affidavits supporting the bill were filed when the injunction was granted, and two opposing affidavits were filed by the defendants. The plaintiff’s affidavits alleged in a general way that the coal-pockets were an indispensable part of the plaintiff’s canal and railroad, in the transfer of coal from the railroad to the boats in the canal, and were absolutely necessary to the transportation of anthracite coal from the mines to tide water. Two affidavits were filed by the defendants, stating that while the pockets were very useful and convenient in the trans-shipment of coal from the railroad cars to the boats, they are not appurtenant and indispensable to the construction and use of the canal, and are
Whether there is any difference between pockets and coal shutes, or precisely what is the construction and mode of use of the pockets we are not informed by the bill or by the affidavits. But the bill does assert that the pockets are absolutely indispensable to the transfer from the land to the boats, for transportation by canal, and that they are an essential part of the works of the canal for that purpose, and the bill further avers that without this or some similar contrivance it would not be practicable for the plaintiff to carry its own coal or that of other producers on the canal. The supporting affidavits fully sustain these averments of the bill, and the defendants’ affidavits, while they deny in a general way that the pockets are appurtenant and indispensable to the construction and fitting for use of the canal itself, do not deny that they are a necessary and indispensable means of transmitting the coal, from the land to the boats, and in that way constitute an essential part of the system of transportation. We can readily understand bow it may be that they constitute a part of the means of transportation, though the method by which this appears might perhaps have been set out in the bill with somewhat more of precision and detail. Still it substantially appears and makes out a prima facie case which is not materially controverted. Without a master’s report presenting the evidence and his findings of fact, we can not form or express any ultimate opinion, nor will we now engage in any discussion of the merits. The case of Wayne County v. Del. & Hudson Canal Co., 15 Pa. 351" court="Pa." date_filed="1850-12-15" href="https://app.midpage.ai/document/commissioners-of-wayne-county-v-delaware--hudson-canal-co-6228847?utm_source=webapp" opinion_id="6228847">15 Pa. 351, may or may not control the decision of this case. The report of that case is very meagre in exhibiting the precise facts upon which it was adjudged, and we cannot know whether the shutes there referred to were a necessary part of the system of transportation or not. As at present advised we are of opinion that it will he better to continue the injunction granted by the learned court below until the final hearing, when all the facts can be known and considered.
The decree of the court below is reversed and injunction continued until final hearing, at the cost of the appellees, and the record is remitted for further proceedings.