Sterling's Appeal

Mr. Justice Sterrett

delivered the opinion of the court, January 4th, 1886.

After averring in his bill that he is the owner in fee of certain lands therein described, appellant charges, in substance, that in disregard of notice not to enter said lands without first making or securing compensation, the company appellee is about to lay a pipe line, for the transportation of natural gas under a public road traversing said lands; that said pipe iine “will run along the public road within four feet of a board fence, pass between the house and barn.....within fifty feet of each, and if completed will do appellant great and irreparable injury,” etc. The specific relief prayed for is that appellee be restrained from entering on the premises and laying thereunder a pipe for the.purpose of conducting natural gas; or, if the company, under its charter or otherwise, has a right to do so, that it be restained until adequate compensation be paid or secured.

The body of the bill was amended so as to set forth that appellee was incorporated as “The Cecil Township Natural Gas Company,” and its charter recorded April, 1884, in the office for recording deeds in and for Washington County. It appears from the charter, a copy of which is made part of the bill, that “said corporation is formed for the purpose of supplying natural gas to the public for lighting, heating, manufacturing, and other purposes, and supplying the same to said Cecil Township.....and such persons, partnerships, and corporations residing therein or adjacent thereto as may desire the same.” The charter discloses no other purpose.

Appellee demurred to the bill as amended, and assigned the following causes therefor: “1st. The facts set out in the bill do not warrant the charge therein that the work contemplated by defendants, if completed, will do plaintiff great and irreparable injury. 2d. The facts set out in said bill are insufficient to entitle the plaintiff either to the specific relief prayed for or to entitle him to any equitable relief.” The demurrer was sustained and decree entered dismissing the bill at appellant’s costs.

By demurring appellee admitted the truth of all matters well pleaded in the bill. It thus admitted doing the acts complained of for the purpose and with the effect charged in the bill; and, for so doing, the charter referred to is the only warrant that is exhibited.

■The questions thus raised by the pleadings are whether, under its charter, or otherwise, the appellee is authorized to do the acts specified; and if so, whether it can proceed without first paying or securing just compensation to appellant as owner of the land through which its pipe line is to pass. It is not claimed that appellee has any such authority outside its charter, and on the authority of Penn Fuel Company v. Commonwealth, (15 W. N. C. 425), we think it has none under its charter. While we did not undertake to pass upon the validity of the charter involved in that case, we held that it gave the company no authority to supply natural gas for either of the several purposes mentioned therein. An inquiry, as to whether certain powers are or are not granted by a charter, is not open to the objection that the validity of a charter cannot be assailed in a collateral proceeding. Such inquiries are expressly authorized by the Act of June 19th, 1871, (Purd. 288, pl. 39), which provides that “In all proceedings in courts of law or equity of this commonwealth, in which it is alleged that the private rights of individuals, or the rights or franchises of other corporations are injured or invaded by any corporation claiming to have a right or franchise to do the act from which such injury results, it shall be the duty of the court in which such proceedings are had, to examine, inquire, and ascertain whether such corporation does in fact possess the right or franchise to do the act from which such alleged injury to private rights, or to the rights and franchises of other corporations results; and if such rights or franchises have not been conferred upon such corporation, such courts, if exercising equitable power, shall, by injunction at the suit of the private parties or other corporations, restrain such injurious acts. And if the proceedings be at law,, for damages, it shall be lawful therein to recover damages for such injury as in other cases.”

Tested by the principles recognized in Penn Fuel Company v. Commonwealth, supra, we are satisfied the appellee has no more authority to do the acts complained of than any unincorporated association of individuals would have. It therefore follows that appellee is at best a trespasser on the public highway.

But conceding for the sake of argument, that the company has power under its charter to do the acts complained of in the bill and admitted by the demurrer, has it a right to proceed without first making or securing compensation to appellant? We think not. As owner of the land traversed by the public road, he has a right to use it and the land on which it is located for any purpose that will not impede or interfere with the public travel. By appropriating land for the specific purpose of a common highway, the public acquires a mere right of passage with the powers and privileges incident to such right. The fee still remains in the land owner notwithstanding the public have acquired a right to the free and uninterrupted use of the road for the purpose of passing and re-passing; and he may use the land for his own purposes in any way that is not inconsistent with the public easement. He may, for example, construct underneath the surface passage ways for water and other purposes, or appropriate the subjacent soil and minerals if any, to any use he pleases, provided he does not interfere "with the rights of the public. In other words, the only servitude imposed on the land is the right of the public to construct and maintain thereon a safe and convenient roadway, which shall at all times be free and open for public use as a highway. It is in view of this servitude that damages may be awarded to the landowner. Laying and maintaining a pipe line, at the ordinary depth under the surface, necessarily imposes an additional burden on the land, not contemplated either by the owner or by the public authorities, when the land was appropriated for the purpose of a public road. It is a burden, moreover, which to some extent, at least, abridges the rights of the landowner in the soil, traversed by the road, and hence it is a taking within the meaning of the constitutional provision requiring just compensation to be made for property taken, injured, or destroyed. (Const. Art. XVI., sect. 8.) In some cases it is possible the injury may be consequential as well as direct. The constitutional provision embraces both.

In Blooomfield and Rochester Natural Gaslight Co. v. Calkins (62 N. Y. 386), it was held that a corporation organized under an Act, similar to ours, authorizing the formation of gaslight companies, has no authority to lay its pipes in a country highway without the consent of or without the appraisal and paj'ment of compensation to the owner of the land. There is no reason why this should not be the rule with respect to public roads in the rural districts. As to streets and alleys in cities and boroughs, there are reasons why a different rule to some extent should prevail; but that question is not now before us.

There is nothing in the suggestion that appellant has a full, complete, and adequate remedy at law. The injury complained of is one of a continuing and permanent nature, for which an action at law would not afford a complete and adequate remedy : (Commonwealth v. Pittsburgh & Connellsville Railroad Co., 12 Harris 159.) The appellee is or claims to be a corporation, and they are peculiarly the subjects of equitable jurisdiction and control, especially when they attempt to exceed their corporate powers. Under the Act of June 19fch, 1871, above quoted, a Court of Equity has jurisdiction to inquire whether a corporation possesses the franchises it claims, and if not, injunction is the appropriate remedy for the wrong: (Edgewood Railroad Company’s Appeal, 29 P. F. S. 257.)

For these, and other reasons that might be added, we think the learned Judge erred in sustaining the demurrer and dismissing the bill.

Decree reversed at costs of appellee, and record remitted with instructions to próceed according to equity practice.