
    AMBLER’S APPEAL.
    A private road over a man’s own land is not snch an established road or way which a railroad is forbidden to obstruct.
    Appeal from the Common Pleas of Montgomery County ; In Equity. No. 235, Jan. Term, 1884.
    Mahlon R. Ambler brought a bill in equity against The, Pennsylvania Schuylkill Yalley Railroad Company for an injunction. He owned a farm at the mouth of the Perkiomen Creek, Providence Township, Montgomery County. Upon it are his dwelling house and farm buildings, two tenant houses, and he had 180 acres of land ; and also a ferry across the Schuylkill. On his property, he had a way from the public road to his farm buildings and ferry. About June 25th, 1888 the defendant railroad company located their road over and across the lots of the appellant. Their agent came to Mr. Ambler to adjust damages. This agent said that the company would build an •open tressel bridge over and across this roadway, and leave an ■opening 18 to 20 feet high, and 16 feet wide. Mr. Ambler, with this understanding, accepted a bond of $6000, as security for his damages. On Nov. 24, 1883, the appellant learned that the Railroad Co. were going to build an embankment of 20 feet high or over, instead of the trestle. He objected and then filed this bill, alleging the above facts, and asked for an injunction to restrain the Railroad .Co. from erecting their railroad across his way, so as to interfere with, or impede the transportation of persons from the property across the same. On Jan. 5, 1884, the Court filed the following opinion, refusing the injunction asked for, per:
    Boyer, P. J.
    The prayer of this bill is for a preliminary injunction until hearing, and perpetual thereafter, against the defendant corporation, to enjoin the said Railroad Company from impeding, or in any way interfering with a certain private way established by the plaintiff upon his farm, and from placing any obstruction thereupon; and also to compel the said defendants to build a bridge over said way of a certain span and height, and maintain the same.
    It is maintained by the plaintiff that the way in question is a road of way within the meaning, of the 12th Section of the Act of 19 February, 1849, P. Laws 84 and cannot be lawfully obstructed by the defendants. Is it such away? It is a private way only, and established and controlled solely for the use and accommodation of the plaintiff and his employees, and tenants, and such others as may use it under his will or permission.
    The plaintiff is owner also of a private ferry in the vicinity across the river Schuylkill, and in times of high water the way is sometimes used for the convenient passage of boatmen’s mules to and from the plaintiff’s ferry. Do these uses make it an “established” way entitled to the protection of the act referred to?
    The road or way is described in the Act as “any established road or way,” and in its interpretation much importance must be attached to the descriptive and qualifying word “established.” What then is to be understood by an “established” road or way ? It cannot be every path or roadway ordinarily used by a farmer for the purpose of husbandry on his own land, which, however, steadily used throughout successive seasons as a convenient passage-way over which to haul out his manure and bring in his crops, or drive his cattle to pasture, could scarcely be termed an established foad or way so long as it exists by his will alone, and is subject to be changed or shifted by him at any moment at his pleasure. "Webster says that to “establish is to make staple and firm, to fix or settle unalterably.” It may be that there are roads and ways not open to all the public which are nevertheless “established” roads or ways within the meaning of the Act, but I cannot suppose that any one can be considered as “established” until it ceases to merely exist by sefferanee ; until, in other words, it can be rightfully used and maintained by some person or persons other than the owner of the soil, and is unalterable by his will alone. I am constrained, therefore, in the construction of the Act quoted, to hold that the road or way in question is not an “established” road or way within the meaning of the Act, and that therefore it is liable, like any other private property, to be taken by the defendants subject to the payment of adequate damages.
    There is another ground upon which the interposition of the Court is claimed by the bill, namely, that there is a threatened violation of the contract made by the defendants not to disturb the way. It is said that an agent of the defendant corporation promised in behalf of the defendants that the way should remain intact and suitably bridged, and in consideration of that understanding the plaintiff accepted a bond from the defendants in the sum of $6,000 to cover and secure damages. Bpt the affidavit of the agent referred to, and which is before me, differs from the statements of the bill, and it is plain that a disputed contract would afford no safe ground upon which to base the extraordinary remedy of a special injunction.
    The amount of the bond filed by the defendants will not limit the actual amount of damages to which the plaintiff may be entitled if he establishes his complaint, and if the defendants, by the destruction of his crossing, mutilate and injure his farm, and depreciate the value of his ferry, it will add so much more to the damages he will be entitled to recover at their hands. Compensation in damages is the only redress provided by the Act of Assembly even when the Railroad Company refuses to make the one crossing directed to be made for every land-owner.
    And now, January 5, 1884, the prayer for a preliminary injunction is refused.
    Ambler then appealed, complaining of the decree of the Court.
    
      Charles Hunsicker, Esq. for appellant
    argued that it was the duty of the Railroad Co. under the act of 1849, section 12, P. Laws 84 to reconstruct Ambler’s road or way.’ This way of Ambler’s was an established way. Bouvier’s Dictionary, Volume 2, page 657 ; Kieffer vs. Imhoff, 26 Penna. 442; Phillips vs. Phillips, 12 Wright 178; Kirkham vs. Sharp, 1 Wh. 323; Cope vs. Grant, 7 Penna. 488; Seibert vs. Levan, 8 Penna. 383. A permanent way, established by an owner over his own property, and necessary for its convenient use, will not be destroyed by sale or incumbrance; Penna. Railroad Co. vs. Jones, 50 Penna. 417.
    C. H. Stinson and H. K. Weand for appellees
    argued this is an appeal from a decree, refusing a preliminary injunction, and the merits will not be considered ; Truby’s Appeal, 96 Penna. 52 ; Hoffman’s Appeal, 10 W. N. C. 401. A way is an incorporeal hereditament. The right of going over another man’s ground, 2 Black, Com. Ch. 3, and is not over his own ground. The road or way recognized in the act of Peb. 19th, 1849, is a public one. The cases cited by the appellants, Kieffer vs. Imhoff, 2 Casey, 442; Phillips vs. Phillips, 12 Wright 178; Penna. R. R. Co. vs. Jones, 50 Penna. 417, are not similar to the case in hand, and do not apply.
   The Supreme Court affirmed the decree of the Court below, on May 12th, 1884, in the following opinion:

Per Curiam.

Hnder the question raised, the learned judge committed no error in refusing the preliminary injunction prayed foi\

Decree affirmed and appealed dismissed at the cost of the apellant.  