169 Pa. 416 | Pa. | 1895
Opinion by
We agree entirely with the learned court below in their disposition of this case. It is scarcely necessary to review in detail the considerations expressed in the very clear and satisfactory opinion filed. In substance the complaint of the plain
Now the fourth clause of the bill alleges that the Transit Company by virtue of the said ordinances began to lay their tracks in front of the plaintiff’s lot, and that in doing so they changed the grade of the street by raising it one foot in the center and four inches at the curb, and thereby caused the flowage of water and other substances as complained of, but there is no allegation that this was done without the consent of the city, or that it was not done under the supervision of the department of highways. If, as the first part of the fourth clause alleges, the work was done, “under and by virtue” of the ordinances, the necessary inference is, in the absence of a contrary allegation, that it was done in the way permitted by the ordinances, that is, under the supervision of the department of highways. This inference is very much strengthened by the fact that the city of Easton is not complaining of any violation of the ordinances, and in fact is a defendant in this bill, and a decree is asked that the city shall be ordered to maintain the grade, “according to legal enacted ordinances.”
Now an averment that the change of grade was made b}r virtue of the ordinances, and the only allegation of any violation of the ordinances being that the grade was slightly raised when such a change is permitted by the ordinances, is not a sufficiently specific allegation of any wrongful act to warrant a court of equity in interfering by the extreme process of injunction. There should certainly be an allegation that the work was not done under the supervision of the department of highways, as that element would be necessary to make the work illegal, and contrary to the ordinances. There is nothing of this kind in the bill.
We think there is no merit in the second and fifth specifications of error.
Decree affirmed and appeal dismissed at the cost of the appellant.