Miller v. Lynch , 149 Pa. 460 ( 1892 )

Per Curtam,

Most of the specifications of error are to the findings of fact by the master. These findings were approved by the court below and have not been shown to be erroneous. The facts as found fully justify the decree. In the twelfth specification, however, it is alleged that the court erred in dismissing the following exception to the master’s report. “ In not reporting that the title to the soil of the alley in dispute was at least in controversy and doubt, and relegating the parties to their action at law to determine the ownership of same.” We are in no doubt as to the jurisdiction of the court. The injury complained of was of a permanent nature, and not reparable by an action of damages or ejectment. It is settled that a court of equity will interfere to restrain by injunction a trespass of a permanent nature: Masson’s Ap., 70 Pa. 26. The appellants allege, however, that the plaintiff’s right should have been first settled at law. This would be so if there was a serious dispute in regard to it. Where his right is clear, however, a chancellor will not hesitate to act. It is not enough for the defendant to deny the plaintiff’s right; his denial must be based upon facts which show a substantial dispute. The facts found by the master show that the plaintiff’s right to the use of this alley in the manner claimed by him was entirely clear. It would have been useless to send the case to a jury to settle a question of fact which is not of a tangible nature.

The decree is affirmed,, and the appeal dismissed at the costs of the appellants.