
    Dunmore Borough’s Appeal.
    On a bill in equity by a borough to restrain a turnpike company from maintaining a toll gate on a street of the borough, on the ground that the appropriation of the street was a relocation of the turnpike which it was beyond the power of the company to make, the evidence to warrant an injunction must be clear and free from doubt, and there must not be laches, on the part of the borough, in asserting their rights.
    In this case the evidence was held insufficient, the turnpike having branching powers under the local Act of March 28,1870; and the bill filed by a borough, after eleven years of delay, was dismissed.
    Feb. 26, 1889.
    Appeal, No. 339, Jan. T. 1889, from a decree of C. P. Lackawanna Co., dismissing a bill in equity by the borough of Dunmore against the Roaring Brook Turnpike Co., at Jan. T. 1885, No. 2. Williams and McCollum, JJ., absent.
    The averments of the bill and answer appear substantially by the opinion of the court below. The case was referred to H. A. Knapp, Esq., as master, who recommended a decree dismissing the bill. Exceptions filed to the master’s report were dismissed by the court, in the following opinion, by Archbald, P. J.:
    “ The substantial complaint of the plaintiff is, that the defendants, without warrant of law, have appropriated a public highway within the borough limits, known as Drinker street, and,* having located a toll gate thereon, are collecting tolls from persons who travel by there in going to and from other parts of the borough. An injunction is .therefore sought to compel the removal of such obstruction to the free use of the way.
    “ The right of the borough to maintain the bill is not called into question. It would seem to flow from the general authority over roads and streets given by the 2d section of the borough Act of April 3, 1851, which includes, in terms, the power to prohibit any obstruction to the convenient use thereof.
    “Nor is. there serious controversy over the right of the defendants to appropriate, for the purpose of their organization, any of the streets of the borough, provided only that it be properly done. By the Act of March 29, 1S67, P. L. 607, whereby they were incorporated, they obtained authority to construct a turnpike road by the most feasible route, ‘commencing at a point on the Philadelphia Great Bend turnpike, abandoned, in the township of Madison, Luzerne [now Lackawanna] county, at or within the village of Moscow, . . . and construct the same to the main public road in the borough of Dunmore leading to Olyphant.’ The latter terminus necessarily carried the road into the heart of the borough, and, by implication, conferred the right to lay the turnpike along and upon any street or public highway reaching in that direction. The location of the road, therefore, from the eastern boundary of the borough to the narrows, and from the old mill road near Maloney’s, along Drinker street to the point where it corners with the road to Oliphant, cannot be called in question. The dispute is over that part of the road as now located which lies between the narrows and the mill road, covering something over a mile. It is claimed that the turnpike was originally located between these points upon the bed of the abandoned Jessup railroad, and that the present road is a relocation, which it was beyond the power of the company to make; their authority having been previously exhausted by the prior location. Upon the question of fact thus involved, the report of the master is adverse to the plaintiff, and we have now simply to determine whether he has erred in this particular, for, if he is sustained by the evidence, the bill must fall.
    “ There is much in this case to suggest that the defendants, in the taking possession of the old Jessup track, intended to lay a part of their main line upon it, from the narrows down to the neighborhood of Little Roaring Brook, where they could conveniently cross over to the line of the Philadelphia & Great Bend turnpike. At this point, the contemplated branch from Sport Hill to Scranton would naturally diverge, continuing upon the Jessup track in the direction of No. 6, while the main line followed the Philadelphia & Great Bend turnpike or Drinker’s street down to the ‘corners.’ The supplement to the defendant’s charter, passed in 1870, P. L. 617, would seem to reflect this double purpose. The 1st section permits them to narrow their road bed to an average width of 16 feet, inpcase they should deem it advisable to occupy the Jessup track, and the 2d section authorizes the construction of a branch road, from a point at or near Sport Hill, to lead by way of No. 6 plane, in the direction of Scranton. It is somewhat difficult of belief, moreover, in view of the admitted scarcity of funds, that the defendants intended to construct and maintain two parallel roads for the distance of a mile, between the narrows and Little Roaring Brook, the one running over the top of No. 7 hill, and the other, a few rods away, following an almost level grade around the foot of it, and it stands much in the light of an experiment to meet the occasion, that, in 1874, when the Jessup track is required by the Delaware, Lackawanna & Western Co. for a branch railroad, the turnpike was apparently shifted at the Narrows on to the line of the Philadelphia & Great Bend road.
    “ But these are rather matters of opinion and belief than of substantial evidence, and that is the difficulty in the case. Both Mr. Dunning and Mr. Rhodes, who appear to have had an important part in the affairs of the company from the beginning, testify that the main line of the road was originally surveyed and located along the Philadelphia & Great Bend turnpike, over No. 7 hill; that the construction of it stopped at the narrows simply from lack of funds; that the original intention so to locate the road was never abandoned, and was resumed when the company came into funds from the sale of the Jessup track; and that the said track was used solely for the location of the branch road authorized by the supplement of 1870. The resolution of the company, in July of that year, to construct this branch, in a measure sustains the last assertion, and I have little doubt that it was within the discretion of the directors, under the authority, to construct their branch road from a point at or near Sport Hill, to begin at the Narrows. Parke’s Appeal, 64 Pa. 137; Fall River Iron Works v. Old Colony R. R., 5 Allen, 221.
    “ If, however, they made a mistake in this respect, it would not affect their right to locate the remainder of the main road, as they ■claim to have done, if that right had not been in fact previously •exercised. In this view, and according to these and other witnesses for the defendants, the use of the Jessup track down to the mill road, and up the latter to connect with the line of the Philadelphia ■& Great Rend turnpike near Maloney’s, was, so far as the main line of the road was concerned, merely a temporary expedient, so as to have an outlet down into Dunmore, going one way, and to admit travel to the turnpike, going in the other. It is true, as found by the master, that tolls were collected over this part of the road, and there are some statements in both Mr. Dunning’s and Mr. Rhodes’s testimony which conflict with the assertions to which I have before •alluded. But, it is reasonably certain, from all the evidence, that there was no intended continuous location of the main road along the Jessup track to the mill road, and thence by the latter to Drinker Street. There may have been an intention to use a part of the Jessup track for both main line and branch down to the neighborhood of Little Roaring Brook. But the mill road was never intended to be so used. There was, therefore, no continuous completed location of the road which would carry out the purposes of the charter, between the narrows and Maloney’s, and, if the location in fact, to which the plaintiff seeks to hold the defendants, falls short of the whole distance, to what point can we say, beyond a peradventure, it extended ?
    “ The further fact is not to be lost sight of in this connection, that the defendants never had the line over the Jessup track and mill road viewed and licensed. I do not mean to hold that this was necessary to a completed location of the road, although it was, of -course, an essential prerequisite to the lawful exaction of tolls. Such viewers have apparently to deal rather with the question of the construction, than at the location of the road. Act of January 26, 1849, § 12, P. L. 14. But, however that may be, this last step is wanting in the present case, and, with the other evidence, it tends •to sustain the contention of the defendants, that there never was a location in fact as claimed by the plaintiff.
    “ The evidence is not to be weighed as though this were an issue between the Commonwealth and the defendant, wherein the latter are called upon to show by what authority they maintain their turnpike between the points in controversy. The plaintiff is in a ■court of equity seeking, by injunction, to restrain the defendants in the exercise of certain of their corporate franchises. The court-is now virtually asked to hold and decree that, beyond “the narrows,” the chartered rights of the company have been abandoned and lost. To warrant this, a case clear and free from doubt must be established, and, after carefully considering all the evidence, 1 am not •.satisfied that the plaintiff has met with this requirement. As I said before, we may entertain the belief that a location of part of the main line upon the Jessup track was, in fact, intended; but "the officers of the company assert the contrary, and, notwithstanding some inconsistencies in their testimony, I am not prepared to disbelieve or reject it. Nor, indeed, have the borough authorities improved their case by delay. They interposed no objection to the occupation by the defendants, in 1874, of that part of the highway now complained of, nor for four years thereafter. In the meantime, this dilapidated piece of road was repaired at considerable expense, and converted into a commodious thoroughfare. The borough now seeks to enter into and appropriate these labors. The original bill filed in Luzerne county, in 1878, by which the same questions as now were sought to be raised, was never pressed beyond a fruitless application for a preliminary injunction [1 Law Times, 59], and.was-finally discontinued to make place for this suit. The present bill was not filed until eleven years after the road was taken by the defendants, during all which time the burden of keeping up the road has been removed from the taxpayers, and been cast upon and done by the company. These are not considerations which move a chancellor to the granting of equitable relief. A clear right, and the prompt assertion of it, is the rule, and I see no reason why it should not prevail in a case of this kind.
    
      “ If the defendants have, indeed, lost their corporate right to-maintain a turnpike beyonde the narrows,’ the proper representatives of the Commonwealth, if convinced of that fact, will no doubt take action to enforce the forfeiture; and we have reasonable assurance in this, that the interests of the public will not seriously suffer. But, however that may be, upon the ■ case as presented by the plaintiff, I see no occasion to interfere with the defendant in the enjoyment of their presumptive rights, and agree with the master that the bill should be dismissed.
    
      “ The exceptions, are overruled, and the report of the master confirmed.”
    The court entered the following decree:
    “ Now, January 9th, 1889, this cause came on to be further heard on exceptions to master’s report and supplemental report at this term, and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed that the bill in this cause be dismissed at the cost of the plaintiff.”
    
      The assignment of error specified the action of the court in making the decree dismissing the plaintiff’s bill.
    
      M. E. McDonald and Lemuel Amerman, for appellant.
    If a. turnpike company occupies a street or highway with its road without authority or in an improper manner, the municipality whose streets are thus occupied may maintain a bill for an injunction against such occupancy. Rio Grande R. R. v. Brownsville, 45 Texas, 88; Springfield v. Conn. River R. R., 4 Cush. 63; Greenwich v. Easton, etc., R. R., 24 N. J. Eq. 217.
    
      When a company, established by a special charter, has once fixed upon its location, and taken necessary steps to establish it, its power of election having been exercised, it has no power to recall or change it without the consent of the Legislature, even though the change only involves the exercise of a power which it possessed, and might have exercised under the charter in the first instance. Moorhead et al. v. Little Miami R. R., 17 Ohio, 352; Little Miami R. R. v. Naylor, 2 Ohio St. 239; Phila. & Gray’s. Ferry Railway Co’s Ap., 102 Pa. 123; Morris & Essex R. R. v. Central R. R., 31 N. J. L. 205; Morrow v. Com., 68 Pa. 305; Furniss v. Furniss, 29 Pa. 15; McMurtrie v. Stewart, 21 Pa. 322; Neal et al. v. Pittsburgh & Connellsville R. R., 2 Grant, 137.
    There is no legislative grant, in the Acts of March 29, 1867, P. L. 607, and Jan. 26, 1819, P. L. 10, to the turnpike company to take a street repaired and used by a borough, for turnpike purposes. Corporations can exercise only such powers as are expressly conferred on them. Com. v. Erie, &c., R. R., 27 Pa. 339; Stewart v. Foltz Ap., 56 Pa. 413.
    In the construction of a charter, that construction must be adopted which favors public convenience and trade. Stormfeltz v. Manor Turnpike, 13 Pa. 555.
    The turnpike company located its road upon the old Jessup track. After locating it there it constructed its road as located. After constructing its road, it used it and collected tolls for travel over it for four years. The power of the company to locate its road was thus exhausted.
    
      Charles H. Welles, for appellee.
    The turnpike company alone was intrusted with the location of its road, subject to the liabilities imposed by law for the damages thereby incurred. N. Y. & E. R. R. v. Young, 33 Pa. 175; Parke’s Ap., 64 Pa. 137; Anspach v. M. & B. M. R. R., 5 Phila. 491.
    The legislature has paramount authority over streets, roads and public highways. 2 Dillon’s Mun. Corp., pp. 652 and 656; Angel’s Highways, § 237; Mills’s Eminent Domain, § 34; Southwark R. R. v. Phila., 47 Pa. 314.
    The doctrine in Pennsylvania is, that the streets and highways are the property of the people, not of a particular district, but of the whole state, who, constituting as they do the legitimate sovereigns, may dispose of it by their representatives, and at their pleasure. Phila. & Trenton R. R., 6 Wharton, 43; Com. v. Erie & N. E. R. R., 27 Pa. 354.
    Turnpike roads are among our most valuable public improvements. They originated in a meritorious public spirit, and the public faith is pledged to a liberal support of their.rights. Greensburg & Pittsburg Tpk. v. Brerdenthal, 1 Phila. 93.
    The Act of March 28, 1870, P. L. 617, authorized the defendant to construct a branch road; and the testimony, found by the master and confirmed by the court, shows that the road on the Jessup railroad bed was a branch.
    
      Eleven years passed since the road was taken, before this suit. Equity will not grant relief in such case.
    March 11, 1889.
   Per Curiam,

We affirm this decree upon the opinion of the learned president of the court below.

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