The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1867-03-18


of The street. ana the intrusion of the building
upon the highway: The fact of notice of this
nuisance to MT. Friday before his purchase,
would seem to to Oe made out by the affidavit
of Oliver Evans. In the view Ue have taken of
the case, we however do not regard this rs OF
much importance.
, This a.nqly isis Of the case would appear to lead
purpreslure here planned OF should, like all
similar nuisances, be abated: bnt the learned
counsel for the defendants has presented GER
;s .a,m GoleCSoIs, Whch he has argued should dis
uDgulsh TINS from other cases o encroachment
ana we VIII proceed TO state and weigh them.
u ls insisted for the detenGante-
,-En Ehst. Ihat "Reed'e Survey" published in
,s 1'lV, nnONs auHrm4tlVely that defendants lot
prepared.
second. That prior to the passage of the act
Oh feIDrGary Ia. l72l, regulating party walls
To: n,g' lo, section Z; smith, l25), there
was nothimg to guide builder.
v.,drd' hndiu' Ihat no court of equity will enjoin
"4ere man builds as best he may. And,
r,,assly' mat there can be no abatement of a
nu;isanCe on a public highway unless there is
pIava.e injury except at the suit OF the Com.
These points have been argued on both sides
carncs miCn sTeat ability, and we have given them
CaIelultConsiderauon.
We have not been able to agree with the re-
ssPonoents as TO the sufficency of the defense
mus eXhlDued, and we will endeavOr to state
our reasons Tor this conclusion.
AtAN SUI NNy puDlbOeO IN llIO OOeS not snow
tn ~ this lot was surveyed as extending beyond
the ne OF Second street nor as enCroaching
upon any highway 1t is difficult TO understand
how the lot could be surveyed until tne street
had first been laid out; and if it we're in fact
SURVEYED in 1888, This must have been after the
regulation of the sti GETS and would it is to be
presumed, have conlolIned lheretQ. Inc tact
OF some survey is clearly lmmaterlal. To en-
spoudents should haveEshOwn that the present
lines OF the lot were laid out in 1885,. But all
inquiries upon this point, which Is, az best, ont
very uncertain, would seem to be unnecessary,
in view of the fact that the first patent Issued
for this lot bears date April l. 1898.
On that date the title passed out of the Com
monwealth to Humphrey Murray. Second
street had been laid out and regulated OF the
width OF 90 feet ten years prior to that date, and
if there were at that early day no officer to give
to the patentee his lines, it would have been no
difficult matter to measure from the line of
Front street. Some measurements must have
been made by the person occupying the lot, and
If made with anything like due regard for the
rights OF the public, it would have been clear
that Second street was not left of the width OF
80 feet. If the defendants mean to contest this
bill upon the ground that the Commonwealth
has inflicted this wrong upon herself, they
should distinctly so aver, and they should prove
It,. They have not undertaken to assert it.
Even then it would be a question whether the
mistake or fraud OF the officer could deprive
the State of her highway. The respondents
ground that when this building was erected
there was no officer to run the lines. If this is
So ana the owner undertook to ascertain the
boundaries for himselt-upon him and his
assigns would rest the responsibility of the
error OF this they have no Just reason to COM
plain, for the siate-roof house, very ancient
landmark, erected before or about the time of
the house in question was, stands-with very
slight variation caused by It's age-eXactly upon
the proper line Nor can any length of occu-
patton bar the CommonWealth's right to her
highway.
The act of April Is, 1882, expressly prohibits
us from allowing this defense. The settled
maxim of the law is, NUtunJ IenpuS OccI9Tlt
Regi. The justice of this axiom has always
been admitted. Mr.. Broom illegal MaXims, ~
says:-"In pursuance of the principle of the
sOvereign's ircapaClty OF doing wrong, the laws
also determines that in the Crown there can be
no negligence or laChes, for the time and
attention of the Sovereign must be supposed to
be occupied by the cares of government; nor is
there any reason that he should suffer by the
HeglSfnCe Of has officers, or Gy their fraudulent
COLLISION 1CUb the adverse party And he cites
the English cases in support OF this doctrine.
In Pennsylvania the decisions speak with
great clearness and unbroken uniformity. Vide
Johnston vs.. IRWIN g s. and r, 29D; Mccoy
VS.. Dickinson College a S. and R., 1922; Bagley
VS.. Wallace (l6 5. and r., 245); Comm. vs..
Baldwin Il Watts, 5D; Comm vs.. Miltonberger
q Watts, 450l; MCKeehan va. Comm. g Barr,
l5D; Troutman VS.. May 60 Casey, 4j5); Magee
VS.. Comm. 90 Wr, 359).
The reasons assigned in these cases for hold
ing firmly to this principle OF the law are too
well known to need repetition. They conclu-
sively show the force OF Sir James MaCkmtosh's
declaration that ''maXIms are the condensed
good sense OF nations" In Comm. VS.. Milton
berger q Watts, 450) the defendant was &C
quilted because he was able to show that I'm
1909 the constituted authorities OF the city (oi
! Pittsburgh made a regulation in conformity to
| Woods PLAN as nearly as the same could be
asCertained, and in accordance and upon the
/ .HaH. L.. 4 Ig..v
! pied ever slncen Judge Grier held that this
! must be taken as the true regulation, lana that
| the act of lS3e, establishing and confirming II,
| was both constitutional and wise" Here, now
| ever, the defendant has failed to show thaI ne
! has built upon a line established by any regula-
! tlon. His difficulty IS that his wall eAteuus
more than two feet beyond the line OF any plan
| that can be found.
| lhese remarks would seem TO dispose ol tne
trst three points which have been urged by the
| defendants
The fourth and last objection is that the Com
| monWealth Is a necessary party,
! In England bills similar to the present nave
| been entertained, and relief granted upon the
! complaint both of municipal corporations anu
! OF individuals: vide Mayor of London VS. BOIL
| D YES. Jr., l29; Sampson V. Smith, Simons
| Ei2: Spencer VS.. London Railway, s Slmons
| 1913: and the recent case of Hepburn V. Jordan
"a L. j. r., N. $. (Chancery), 1913.
! Ihe same ruling has obtained in the unlteu
States See Trustees VS.. Cowen, Paige On;
| "a hd vs. mayor OF Albany, y Neuu;, % =
And our Pennsylvania cases-Biddle vs. Ash,
ASH, 2ZO; MOyamensing VS.. Long, Parsons
l43; Borough of Frankiord VS., Lennig, Phlla
hep, 4OS; Pennsylvania Railroad Co. vs.. Gran
Elevator Co.; IA Wr., 499
The right of the city and her citizens to re
suan nulsances on the public highways ma
0een frequently sustained in cases against the
passenger Railway Companies. Vide Faust VS.
FFaiss'eneer Railway Company, Phil. Rep; l64
Ozark vs.. Second and Third Streets Railroad
| company, Phil. Rep, 259: City VS.. Lombard
ana South Streets, Or. Leg. Int. NAV %, 1868
! ID. 17g-Q Grop4 400. -, U.,rj opf