City of Philadelphia's Appeal , 1875 Pa. LEXIS 91 ( 1875 )

Mr. Justice Sharswood

delivered the opinion of the court, January 21st 1875.

The affirmance of the decree of the court below might be rested upon the opinion of our brother Paxson, on the motion heard before him to dissolve the injunction. But that our judgment may not be misinterpreted and extended beyond -what is meant to be decided, it may be necessary to add what are the special grounds of this determination.

The cause was set down to be heard on bill and answer. According to the ordinary course of equity practice, that is an admission of the truth of the allegations of fact contained in the answer. It is distinctly alleged by the defendants that the acts complained of in the bill were mere alterations of an old building, and as it is provided by the act entitled “ An Act defining the line of Chestnut street in the City of Philadelphia,” approved April 28th 1870, Pamph. L. 1291, by which in effect Chestnut street was widened five feet on the south side, that the act “ shall not interfere with any buildings now erected on the south side of Chestnut street,” it is contended that the defendants are saved from the consequences. The learned judge below considers that as a doubtful question. Certainly had the defendants simply renovated their old front on the old foundation it would not be easy to see why they might not have done so. It was not the intention of the legislature to enact that the owner of an old building could not run up a new front on the old foundation without falling back to the new line. This might and in many cases would entirely change all the internal arrangements of the house, especially if it was a dwelling. If this was so, and the improvement in question was as is alleged an alteration of a building, which at the date of the Act of Assembly was then erected on the south side of Chestnut street, surely the defendants might fall back less than five feet. To say that this is a doubtful question is decisive against the injunction. Chancery never puts forth this strong arm unless in a clear case of the invasion of a private or public right.

We concede that no usage, however long-continued, will justify an encroachment great or small upon a public highway. But in the exercise of that sound discretion with which a chancellor is invested, he may well consider and give effect to such an usage as rightfully persuasive to arrest his interposition by the writ of injunction. Otherwise he might be made the instrument of very gross injustice. Courts of equity are not instituted in general to enforce abstract legal rights. There must be substantial, irreparable injury attempted. The encroachment on a public highway to be remedied by this process must be really an obstruction to the free use of it. Now it is very clear that, admitting that the defendants were bound to fall back with their new -front, to the new line — the columns, cornices and ornaments they have added to their new front are no real obstruction of the highway, though it may be that technically they are so. It is certain that under the ordinance of the city of Philadelphia of September 3d 1864, they might have placed cellar-doors, porch.es or steps extending into the footway four feet six inches and forming thus a much more serious obstruction of the highway than any that has been attempted. Every case of this kind must depend on its peculiar circumstances' and will form no precedent for any other case varying from it in those circumstances or the character and extent of the encroachment.

Decree affirmed and appeal dismissed at the costs of the appellant.