
    Crescent Township, Appellant, v. Pittsburg & Lake Erie Railroad Company.
    
      Railroads — Appropriation of highway — Widening right of way — Township road — Equity—Preliminary injunction — Presumppion.
    A preliminary injunction will not be granted on a bill in equity filed by a township against a railroad company to prohibit it from appropriating longitudinally a portion of a township road for the purpose of straightening, widening and improving the railroad.
    Argued Oct. 24, 1905.
    Appeal, No. 107, Oct. T., 1906, by plaintiff, from decree of O. P. No. 1, Allegheny Co., June T., 1906, No. 650, refusing a preliminary injunction in case’ of Crescent Township v. Pittsburg & Lake Erie Railroad Company.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The bill was in substance as follows :
    1. The township of Crescent is a township of the first class, under the act of April 28, 1899, in Allegheny county, Pennsylvania.
    2. The Pittsburg & Lake Erie Railroad' Company is a railroad corporation, incorporated under the act of April 8, 1868, having its principal office in Pittsburg, Pennsylvania.
    3. In 1897, at No. 6, December sessions, 1896, of the quarter sessions court of Allegheny county, a public highway was laid out in Crescent township from the Beaver county line through the village of Shousetown to the Flaugherty Run road on and along the old abandoned roadbed of the Pittsburg & Lake Erie Railroad Company. For more than 1,700 feet, in said village, said public highway is known as High street.
    4. Said public highway was laid out and duly opened to the width, of forty feet. Since 1897 it has been continually used and traveled as such and the part thereof known as High street is not an ordinary country road but is abutted on the southerly side by many building lots whereon are many residences.
    5. The northerly side of the part of this public highway known as High street is adjoined, abutted and paralleled for the entire distance of upwards of 1,700 feet by theright of way of the Pittsburg & Lake Erie Railroad Company, whereon said company’s railroad has been located, constructed and operated for a period of more than fourteen years.
    January 7, 1907:
    6. Plaintiff charges that defendant company has unlawfully entered upon the location and roadway of the part of said public highway, known as High street, has begun to dig up, excavate and render it impassable, with the avowed intention of appropriating and subjecting said part thereof known as High street, to its own use and possession, to. build and construct thereon longitudinally its tracks and roadbed in pursuance of the expressed and declared purpose of straightening, widening and otherwise improving its railroad under the Act of March 17, 1869, P. L. 12.
    7. Plaintiff is advised, believes and charges that defendant company has no authority under this act or any other law or laws of the commonwealth of Pennsylvania to seize, take and occupy said public highway or any part thereof to straighten, widen, deepen or otherwise improve its railway lines, or for any other purpose.
    No answer was filed and the case was disposed of by the court upon bill and testimony.
    
      Error assigned was the decree of the court refusing preliminary injunction.
    
      Henry A. Jones, with him Franklin P. lams, for appellant.
    
      Samuel McClay, with him Reed, Smith, Shaw & Beal, for appellee.
   Per Curiam,

This is not a case for preliminary injunction. We express no opinion on the merits until the facts are more fully established.

Appeal dismissed.  