Mulvany v. Kennedy

26 Pa. 44 | Pa. | 1856

The opinion of the court was delivered by

Woodward, J.

What is decisive against the plaintiff’s bill is, that he has not made the Schuylkill Navigation Company a party, by whom the injury was committed of which he complains.

By what authority they dug the basin and destroyed Bethel’s road — whether in virtue of the powers vested in them by their charter, or by contract and agreement of the riparian owners— cannot be known until they are heard; but from Bethel’s acquiescence in what they did, and the use by him and others under him of the tow-path bridge to reach the landing, it is fair to infer, in the absence of complaint against the company, that they had due authority for their acts and doings. The plaintiff’s landing and right of way might be taken for public use like any other private property. If taken at all, the whole case shows it was done by that corporation. This, then, is an attempt to make an individual in no wise connected with the company restore that which they have taken without question of their right. No argument can support such a claim, and none is needed to answer it. The statement of the claim is the best possible refutation of it.

The only injury which the plaintiff appears to have sustained at the hands of the defendant, was the mud that was thrown upon his land in clearing out the basin, and for this he has ample remedy at law.

There is no ground whatever disclosed for the extraordinary remedy by injunction, and the decree of the court in dismissing the plaintiff’s bill is affirmed.