
    HUTCHISON’S APPEAL.
    A Court of Equity may compel the removal of a building, which encroaches on a publio highway.
    The faot that there is conflicting evidenoe as to the point at issue does not necessarily render the case a doubtful one, so as to oust the jurisdiction of a Court of Equity.
    Appeal from Common Pleas of Blair County. In -Equity. No. 116, January Term, 1882.
    The facts of the- case are set forth in the report of the Master •which was as follows :
    The complainant in the bill prays for ‘an injunction ‘to rt-strain defendants from erecting a building on what is ■'claimed to-be Sixteenth street' in the city of Altoona between Tenth:and Eleventh avenues. -When-the bill was'first "filed the building was in the course of construction, although-but little work had been done ; the joists were laid on first floor, and they were putting down joists on second floor when the sheriff served the pielitninary injunction. The building was finished-at • the time we commenced taking testimony. It is a two-story- -plank building, quite plain and cheap, fronting twenty-four'feet two inches on Eleventh avenue, and is set on posts or “pins” -i. e. it has no stone foundation. The bill as originally filed averred that Sixteenth street, where obstructed by this building, - was one of the streets of said city, regularly laid out, etc., and-had been used uninterruptedly for twenty-one years and upwards. Afterwards by an amendment to the bill it was averred that the building was being erected on an old public road laid out and opened by order of the Court of Quarter Sessions of Huntingdon County in 1839, (before the organization oi Blair County) which road had been used by the public continuously thereafter, and was adopted as part of Sixteenth street when Altoona city was adopted.
    The defendants in their answer deny that Sixteenth street was ever laid out, used or occupied as a street by authority of law, or that it had been in uninterrupted use as a street for twenty-one years. They also denied that the building was on any portion of the public road laid out in 1839, and claimed that said road was laid out and ran east of the ground occupied by this building and further, that the road between Tenth and Eleventh avenues was changed by the Pennsylvania Railroad Company when the railroad was made, by virtue of the authority given said company by law; and that the ground occupied by this building was not only no portion of this old public road, but was originally owned by Eli Hastings, and by virtue of sundry conveyances h|s title thereto became vested in James Hutchison, one of the defendants ; •and that he, by articles of agreement, conveyed the same to -John Rockett, also another one of defendants — the others being tenants and workmen:- The material facts in dispute, therefore, are :
    1. Whether the building complained of is on any portion -of Sixteenth street; and if so whether said street was laid out .and opened according to law; or used for such a length of time as to make it a street.
    2. If Sixteenth street was not legally laid out and opened according to law, then is the building on any portion of the old public road, and if so how much' of it.
    3. If on any portion of what was originally the old public road, was this part of the road, changed or vacated by the Penn’a Railroad Company .when they built their railroad.
    Altoona was incorporated as a city in 1867. Before that what is now known as Sixteenth street, was the western boundary of Altoona borough and was in Logan township. The only evidence produced before the Master that Sixteenth street was ever laid out by authority of law (independent of the laying out of the old public road, which was taken as the greater part of Sixteenth street and of which hereafter) was the act authorizing the incorporation of the city. Sec. 21 of that act, vide Pamp. Laws of 1867, page 705, appointed certain persons as commissioners and authorized them to employ competent engineers, surveyors or draughtsmen, who under the directions of said commissioners should execute a survey and plan of all lands embraced within the limits of said city designating therein the avenues, streets, lanes and alleys now existing on the plot of Altoona borough.
    Also, such tracts, pieces or parcels of land through which no avenues, streets, lanes and alleys had been located. When such draft is completed, it shall be the duty of said commissioners, or a majority of them, to complete said plan by •designating when (where) .new avenues, streets, lanes and alleys shall be opened, the said avenues, streets, lanes and alleys shall be laid out by said commissioners in such manner as to conform, as nearly as possible, in their courses and distances of the present existing avenues, streets, lanes and alleys of the borough of Altoona and villages of Loudensville and Logantown and to make a plot or draft thereof showing the courses and distances and width of the avenues, streets, lanes and alleys, so as aforesaid laid out, and make report of the same, together with a plot or draft signed by said commissioners or a majority of them, to the Court of Quarter Sessions of Blair County, and the same being approved by said Court, shall be recorded in the. Recorder’s office at Hollidaysburg ; and said avenues, streets, etc., shall, when thus approved of by said Court, be deemed, taken and allowed to be public streets, lanes or alleys of said city, and to be hereafter opened as is hereinafter directed by the provisions of this act, etc.
    No other provision was made, however, in said act for the opening of such streets. The commissioners (or rather those appointed by the act of February 28th, 1868, vide P. L. of 1868, p. 128 ; but who were to perform the same duties specified in the act of 1867) did make a plot which was presented, and approved by said Court, and ivas duly recorded, whereon Sixteenth street between ' Tenth and Eleventh avenues is designated as a street of the width of fifty feet. If this is sufficient to constitute it a street of that width; then the whole of this building is undoubtedly on the street, as shown by the testimony and drafts of E. S. Lytle, who was the engineer-employed by the commissioners to run the lines and make the plot showing streets, etc. For while it is denied in the answer of defendants that the building was on Sixteenth street, there was no testimony whatever to contradict Mr. Lytle that the building was on Sixteenth street as designated on the city plot. The recorded plot shows clearly that the building is on what is there designated as Sixteenth street. While this act seems to contemplate investing the commissioners with authority to lay out even new streets, etc., as it states that “the avenues, streets, lanes, etc., shall be laid out in such manner as to conform as nearly as possible in courses and distances with the courses and distances óf present existing streets, and that said avenues, streets, etc., when approved by the Court, etc!, shall be deemed, taken and allowed -to be the public streets, etc., and to be hereafter opened as hereinafter directed.” Yet no provision was made in said act for the opening of streets which might be laid out by said commissioners which had not previously been opened.
    The general law regulating the opening of streets in boroughs provides for the ássesment of dam-ages, whether any -is-sustained, and as no man’s property can be taken for public use without just compensation, and as this act makes no provision for the assessment of damages, or'how such streets are to be opened, we think the act is defective, and that the mere designation of a street on this plot, at a place where no street previously existed, would not be sufficient in law to constitute it a public street. It often happens .in borough and city jilots that streets are designated and yet are never in fact opened or used ; and, until opened as provided by law, we do not think an owner of the ground could-be restrained from using it, for until.opened he would sustain no damage, and, it might not, in point of fact, ever be opened. Before it could be opened and used, or as soon as opened, it would bo - the duty of the City Council to petition the Court to appoint viewers for the assessment of damages. As there was no proof of any actual opening of this street under and in pursuance of what was done by these commissioners, we are of opinion that the mere designation oi it by them as a street of 50 feet in width on their plot would not be sufficient to prevent its use by the owner.
    But, the complainants contend that even if said street was not lawfully opened the full fifty feet i. e. if the act of the commissioners did not make it a street of that width, that there was an old public road laid out by order of the Quarter Sessions of Huntingdon County in 1839, beginning at a white oak on Bellefonte road near Jno. B'. Westley’s and to intersect the Dry Gap road at or near Henry Glass’, (generally spoken of in the testimony as leading from Collinsville to the Union meeting house) and that this road was used continuously thereafter, and was adopted as part of Sixteeth street. Said road having been ordered to be opened 33 feet wide, and that therefore at least 33 feet of the street had been in use by the public for over 21 years, coming within the city limits in 1867. and used as a street ever since, and that the building complained of is on this old public road. There is no dispute that such a public road was laid out and opened by order of the Court of Huntingdon County in 1839, but the location of it at this point between what is now Tenth and Eleventh avenues is the principal question of fact in dispute and the principal part of the testimony on both sides was directed towards establishing its location. In view of the fact that the location of the road was in dispute, and the defendants contending so earnestly that the building was not on the road, we were at first inclined not to pass on the question but recommend the suspension of any decree until a jury could ■determine the matter either upon a prosecution instituted by complainants, or in a feigned issue awarded by the Court. For as is said in Mayor vs. Commissioners 7 Barr, 365, though the practice is to enjoin in clear cases of nuisance without a trial to establish the right at law, yet Courts are exceedingly unwilling to do so. It has also been said in another case that “an injunction is of a quasi-criminal nature and ought not to be granted where any doubts exist as ascertained by a trial by jury.” The counsel for defendants have cited numerous-authorities to show the reluctance of the Courts in granting injunctions where location of the road is uncertain, and on tnis point Bunnell’s Appeal, 19, P. F. Smith, 59, is particularly applicable. But there can, we think, be no doabts that Courts-have the power to grant injunctions to remove o^sr-ructionsfrom the public streets in cases of dispute. Whether they will first direct an issue to determine a disputed question of location is discretionary and to be decided according to the particular circumstances of each case. The nature of the obstruction complained of, whether it is permanent or temporary, and whether it is doubtful or not that the obstruction is on the highway are all to be considered. Where the obstruction is of a permanent nature ; and a public nuisance per force of its being on a highway, then the Courts do not hesitate to grant the injunction without the intervention of jury, where no-doubt exists as to its being on the street. Such is the law as we understand it as laid down in commissioners of Moyamensing vs. Long’; 1 Pars. Esq.- Cases 143 and in Commissioners vs. Rush et al. 2d, Harris 188, where the authorities are fully collated, and in both of which cases injunctions were granted to prevent the obstructing of highways. Nor do we think Bunnell’s Appeal, 19, P. F. Smith, 59 ; Biddle vs. Ash, 2d Ashmead, 220, Brown’s Appeal, 12, P. F. Smith, 21, and Clark’s Appeal, 12, P. F. Smith, 447 ; cited by defendant’s counsel are in conflict with those cases. While it is true the facts in this case are in dispute, yet the testimony is so convincing to our mind, as to the one material point that is, as to obstruction being on the old public road, that the Master believes it would be but imposing costs on the parties to delay a decree by sending the question to a jury. For this reason,, and in view of the delay that would result we have deemed it our duty as well as for the interest of the parties concerned to report our finding of the facts, with a recommendation as to the decree the Court should make.
    
      The weight of the evidence shows that this old road was opened as laid out by the viewers in 1839 — the testimony of one of the defendants (Mr. Hutchison) admits this. Most all of the witnesses agree that-the road was principally laid out. along what was known as the “Hastings and Noble line,”' or the “Louden and Robeson line” — Louden having purchased1 from Eli Hastings, and at the time of the laying out of this-, road was the owner of the farm on the west ; and David Robeson, who purchased from Noble, owning the farm on the east. The building complained of is on part of the Hastings farm —on the southern end of a lot or piece of ground sold by Hastings on the 24th of January, A. D., 1838, to the school director» of Allegheny Towmship, and the title to which on the 15th day of April, A. D., 1856, became vested in Jas. Hutchison. Mr. Hastings has also sold the lot adjoining, to the trustees of what is called the “Union meeting house.” The school directors and trustees erected a joint building on their property —a frame building divided by a partition — the west room being occupied for a meeting house — and the east room for a school house — and hence is sometimes called in the testimony the “old Union meeting house” and sometimes “the school house.” There was a fence separating the lots between church and school — the church lot being used for a graveyard, and the school lot for a play ground. This “Union meeting house” is still standing, and is about 170 feet north of the building complained of. It was erected before the laying out of the public road, and to give the road its full width and lay it out the whole way along the Noble and Hastings line would put this meeting house considerably out in the road. To run the courses and distances given in the report of viewers, and give the road its full 33 feet in width, brings the meeting house about ten feet out in the road. The Clerk of the Court of Quarter Sessions of Huntingdon County certified that he had made diligent examination, and could not find the draft or original report of the viewers — nothing but the docket entrie» (which gave, however, courses and distances) — E. M. Jones, one of the defendant’s witnesses, testified that when he was a member of the City Council he had seen the draft, and it called for the meeting house — showed that it was on the line of the road.
    Mr. Lytle also testified-that he had at one time seen the original draft and that it showed the meeting house to be on the road. In running the road no doubt the viewers endeavored- to run as near as possible along the Noble and Hastings line-; and when they reached the meeting house the road as opened turned a little to avoid it. The testimony of most of the witnesses was that the travel ran very close to the church building, so close as to sometimes strike the corner of the building, and that from' the meeting house running south to, the old tree on hill near lime kiln (now Second avenue) it was a straight, line. If the road ran in a direct line from the meeting house to this point then this building must be on the old road. Twenty (20) of the witnesses of complainants swear positively that it is on the old road. Among whom are David Robeson, who, when the road was opened, was the owner of the one farm through which the road ran, and who was along with the viewers when they ran it. John and James Louden, who lived on the adjoining farm, bought by their father from Hastings. Rudolph Lotz, who helped open the road. Joseph B- Hileman, who also was along with the viewers. Clement Jaggard, Abraham Markey, Jno. B. Westley, Abraham McCartney, (who taught school in the Union meeting house) all of whom,.with a number of the other witnesses of complainants, are life-long residents of Altoona and its vicinity and perfectly familiar with the old road, living along and near it and traveling it every year since it was opened in 1839. Some of them say it is “largely out in the road” ; some say “at least half of it,” others, as Jno. Louden, say from “half to two-thirds.” In addition the white oak near Jno. B. Westley’s, the starting point of the road, is not disputed, and a willow a short distance north of meeting house is an admitted corner of the Noble and Hastings farm, so that there should be no difficulty in locating the road by its courses and distances. Mr. Lytle, the only surveyor who ran the lines, testifies that 1’unning by these courses and distances the building is 18 feet Y inches (about § of the building) out on the road, and Mr.. Hutchison admitted that he thought the road was' originally opened as laid out by the viewers. Besides, a number of witnesses .on part of the defendants admit in their testimony that the building is out on the road, only that they do not think as great a distance as contended for by plaintiffs. For instance, E. M. Jones says “largely out in old road Jno. Pfeiffer, “probably one foot over Jno. Flannigan, “may stand out a little on township road.” But three or four witnesses on part ■of defendants undertake to say that it'is not at all on the road. The intention of the witnesses of defendants was principally ■directed to show that this building was located in the same place where Wm. Walton had erected a stable about 1863.
    The testimony on this point is somewhat conflicting, but we ■are of opinion that while a portion of this building may, and no doubt does, occupy a small part of the same ground that Walton’s stable did, yet the stable did not come near so far ■east as does this building. It could not have occupied exactly the same ground as contended by some of the witnesses, because the carpenter who put up the stable testified it was Í6x32 feet, and the 32 feet fronted on 16th street; while this building fronts 24 feet on 11th avenue, instead of 16 feet. It ■was also claimed by defendants that one Isaac Cromer had erected at one time a building that would also have been on the road if the present building is. The Master does not regard it necessary to determine the location of those buildings, while the proof of their location may be circumstances tending to show the location of the road, they can have no further purpose. The Walton stable stood but from four to five years, and the Cromer building was also removed, and if they encroached on the road it would be no justification to defendants, for as is said in Commonwealth vs. McDonald, 16 S. and R. 390, and City of Philadelphia vs. Philadelphia and Reading Railroad Company, 5S Penn. State 263, “the public are not to be deprived of their rights by encroachment. Buildings erected on public grounds or highways acquire no right either on account of time or expenditure.” The defendants have, in fact, admitted by the removal of the building some six or seven inches, since the filing- of the bill and the granting of preliminary injunction, that the building was when first erected out on the old road.
    An inspection of the road north and south, makes it patent that the building is out on the road, and is an obstruction to it. We are of opinion, therefore, after a careful examination of all the testimony, that the building extends-out 18 feet 7 inches in the public road as originally laid out and opened, and that a jury could not fail to so find. The Pennsylvania Railroad Company by act of Assembly of March 27th, 1848, section 5, (P. L. 275) and act of April 12th, 1851, section 1, (P. L. p. 518) are authorized to change the site of public roads, streets, etc. It is claimed by defendants that by virtue of these acts of Assembly that the company did at the time of building their road, change the portion of this old road between Tenth and Eleventh avenues, and the travel was thereafter diverted from Sixteenth to Fifteenth streets. The main line of the Pennsylvania Railroad was built between 1850 and 1852. It runs along Tenth avenue. At the intersection of Sixteenth street and Tenth avenue, the railroad makes quite a cut. From the testimony we find that for several years after, the railroad was built, persons who wished could and did cross the railroad at Sixteenth street, but after five or six years the company increased the number of their tracks and sunk them, making such a cut at Sixteenth street as to render it impossible, after about 1857, to cross the railroad at this point. The company then made a crossing over the railroad at Fifteenth street, and a bridge over the Hollidaysburg branch of the railroad (on Ninth avenue then) to accommodate the traveling public. At this time the. square between Sixteenth and Fifteenth streets and Tenth and Eleventh avenues, was a commons. Teamsters and persons traveling along this road would naturally drive diagonally across this commons, to strike the Fifteenth street crossing, rather than go down Sixteenth street, because it shortened the distance and there was nothing to prevent it.
    At that time land in and about Altoona had but little value compared with what it has now and as much of the ground was swampy and was vacant, there were various road tracks. There can be no doubt that for years afterwards the road as traveled diverged at what is now Sixteenth street and Eleventh avenues, and cut across this common ; which accounts for the testimony of some of the defendant’s witnesses that . the road was further east than where this building stands ; yet the evidence satisfies us that although the principal travel was in the direction indicated, after the putting down of the crossing at Fifteenth street by the railroad company, there was no actual abandonment of the old road between Tenth and Eleventh avenues. It was used very little. There were some buildings on the west side of this old road between these points.
    Jno. B. Cunningham testified that he built the Nesbit house when railroad was being built. There were other buildings there soon after, and persons living there, as well as those who had occasion to go there to take coal, wood, milk, etc., would and did use the road as far as Tenth avenue, and it was limited to travel of that kind. We do not think the change in the principal part of the travel to Fifteenth street would have the effect of vacating that portion of old road between Tenth and Eleventh avenues if needed and used by the public. As the railroad company went on improving from year to year, increasing its tracks, erecting large shops covering acres of ground, it became necessary to change the Fifteenth ' street crossing, and about 1874 they erected a fence along Tenth avenue, and now there is no crossing for teams from Seven-teeth street to Ninth street. Can it be contended because of this that all the streets between Tenth and Eleventh avenues between Ninth and Seventeenth streets are all vacated ? The travel on the streets thus cut off is limited because Tenth avenue runs right along railroad, which makes it dangerous to travel, while Eleventh avenue is the main thoroughfare, and generally in better order and persons naturally use it in preference. While Sixteenth street between these two avenues has not as many buildings as some other streets running parallel with it, yet the same principle wou] d in effect vacate them all. We do not think such is the law.
    In view of the nature of this contention and all the circumstances connected therewith, i. e., that the location of the road was disputed : Other encroachments on the road were permitted, that the city authorities by their neglect to keep this street in proper order (for there was no evidence of any work done on it except putting down a sewer) that these acts tended to mislead Mr. Hutchison who owns the ground through which the road passes at this point; as well as the fact that wTe think a prosecution for obstructing the highway was the remedy that should have been resorted to when it was known that Mr. Hutchison claimed title to the ground, and that if the decree suggested is enforced will impose the expense of removal of the building upon defendants : AVe think the plaintiffs should bear a share of the expenses attending this litigation, and we therefore report and recapitulate briefly the following as our finding oí the facts followed by our suggestion as to the necessary, decree.
    FINDING OF FACTS.
    1. AVe find that the building complained of is wholly on Sixteenth street in the city of Altoona, as laid out and designated on the city plot as made by the commissioners under act ofAssemby of 3d April, 1867, P. L. of 1867,. p. 696, section 21, on page 705, approved by the Court of Q. S. of Blair ■County and duly recorded ; said street being at this point marked on said plot as fifty feet in width, but we find that said street was not in point of fact opened fifty feet, and that in our opinion, such designation is not of itself sufficient in law to constitute it a street of that width.
    2. That an old public road was laid out by order of the Court of Quarter Sessions of Huntingdon County, in November, 1839, and ordered to be opened 33 feet, said road beginning at a white oak near John H. AVestley’s, to intersect Dry Gap road near Henry Glass, Sr. That this road was opened in 1840, and has been used by the public continuously since, ■except where it was intersected by the building of the Pennsylvania Railroad on Tenth avenue ; but that said road was not thereby vacated between Tenth and Eleventh avenues, although the principal part of the travel on the road was after-wards diverted to Fifteenth street for some years, and finally to Seventeenth street, but has been in uninterrupted use by the public since it was opened in 1840; and that in 18G7 was adopted by Altoona city as part of Sixteenth street; and that the building complained of is 18 feet 7 inches on said old road, and so obstructs said road as to prevent its free use by the public, and should be removed.
    Exceptions were filed before the Master, and he made a. supplementary report af follows :
    The Master has examined the exceptions, and would say that as to 2d exception of plaintiff, that while we admitted in our report that the location of the old road was disputed, we-did not admit that it was doubtful and uncertain. We had no-doubt in our mind as to the true location, otherwise we would-not have recommended the granting of an injunction.
    In regard to 5th exception, we would say, that all the drafts, etc., offered in evidence are filed with the testimony. It would be impossible to attach them.
    In answer to 6th exception we would state that in opening-Eleventh avenue, part of Mr. Hutchison’s ground was still taken outside of what we found to be the old road. If the viewers allowed damages for that part embraced within the-road it would be a circumstance to be considered, but if they erred, it would not be sufficient in our judgment to overthrow the other.testimony. ’The evidence does not show for what particular part of lot the damages were awarded, and-in open-i ig this avenue they ran clear through the lot.
    7. The Master did find the “willow tree” to be an admitted vomer, and from that and other marks on ground that there should heno difficulty in a surveyor locating the road if laid out and opened by its courses and distances.
    8. The fact that Mr. Hutchison, or Mr. Shorter, who bought from him, paid taxes on “a lot” was unimportant as there would still be a portion outside of road.
    9. Two or three witnesses did testify that there was a small ditch extending between school house property and road, but it was not a stream of water as claimed in exceptions and it was not an undisputed fact.
    10. It was agreed that the testimony of W. H. Wilson and John A. Wright taken in W. S. Bittner vs. Pennsylvania Railroad Company should be considered as a part of the evidence, and it was so taken, but it was not deemed necessary to copy and file it. It was filed in the case referred to, and is to be taken as part of the evidence in this cause. To report on the other exceptions would be but to repeat what has already been said in original report. The Master did not deem it necessary to report his finding on all the collateral facts that were simply incidental to the determination of the real questions in controversy. To do so, would, in our opinion, have unnecessarily burdened the report. It is sufficient to say that they were all considered as circumstances in assisting us to determine the real issues of the contention and we have found no reason to change our opinion as therein expressed.
    The Court made the following decree, per :
    Dean, P. J.
    It has been urged, earnestly, in the argument on exceptions to the Master’s report and suggestion of decree, that the main fact in the case was a disputed one, and only to be determined from confliciing testimony ; that, therefore, the case on this dispute should first be passed on by a jury.
    It does not follow that because there is conflicting evidence the fact may not he clear and beyond all doubt.
    The Master, in his opinion, has used these expressions, “the weight of the evidence should, etc.;” also, “the testimony on this point was somewhat conflicting ;” also, “after a careful examination of all the testimony,” etc. Therefore, it is argued the Master must have found it necessary to weigh the evidence and determine on which side it preponderated, and that as a consequence his conclusion could not have been free from doubt. An examination of his report and'the evidence appended satisfies me that his finding, notwithstanding the expressions quoted, was not in his mind a doubtful one; true, he heard and considered the evidence adduced to show that Sixteneth street is not identical with the old road from Collinsville to the meeting house, and that the house encroached on no part of the street; hut this evidence did not amount to more than that scintilla, which would not have been sufficient to warrent the Court in sending the case to a jury. This the Master in substance says, and we fully concur with him.
    Therefore, the exception filed by A. V. Dively, counsel for complainant, and exceptions 1 to 20, inclusive, filed by counsel for respondent, are overruled, and the report of the Master is approved and confirmed.
    And now, 14th May, 1881, after hearing, it is ordered and decreed that James Hutchison et al., respondents within named, shall, within sixty days after notice of this decree, remove the building erected and maintained by them, and which stands 18 feet 7 inches in the public road, from said road so as not to obstruct or prevent the public from using the same as a public road or street ; and further, that said defendants be enjoined and restrained from placing the same or any other obstruction to travel on said road — the said road as opened and laid out being of the width of 33 feet. It is further ordered that, in view of the nature of the contention and the circumstances mentioned by the Master in his report, that complainant shall pay one-half of all docket costs, including the one-hall of $160, Master’s fees, and that respondents shall pay the other half, and that both parties shall pay their own witnesses.
    Hutchison then appealed.
    Messes. A. J. Riley, D. J. Neee and S. S. Blair, Esqs., for the appellant,
    argued that equity has not jurisdiction in a doubtful case; Philadelphia’s Appeal, 78 Pa., 33; Rhea vs. Forsyth, 37 Pa., 503; Brown’s Appeal, 62 Pa., 21; Biddle vs. Ash, 2 Ash 220; Baxter vs. Buchanan, 3 Brewster, 435; King vs. McCully, 38 Pa., 76; Bunnel’s Appeal, 69 Pa., 59; Long’s Appeal, 92 Pa., 179; Frisbee’s Appeal, 88 Pa., 144. Where the inconvenience to the public by the obstruction of a highway is slight, equity will not interfere; Atty. General vs. Brown, 9 C. E. Green, 89.
    Messes. A. V. Dively and H. H. Herr, Esqs., contea,
    argued that a Court of Equity will grant the injunction in a case of encroachment upon a. public highway; Moyamensing vs. Long, 1 Pars. Eq. Cases, 143; Commissioners vs. Rush, 14 Pa., 186.
   The Supreme Court affirmed the decree of the Common Pleas on June 2nd, 1882, in the following opinion :

Per Curiam :

We think upon the finding of facts by the Master approved by the Court, the decree was entirely right. The encroachment on the public highway was clearly established, and it was-entirely within the acknowledged limits of equity jurisdiction to interfere by injunction to prevent it.

Decree affirmed and appeal dismissed at the costs oi the appellants.  