The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1901-05-03

The first opinion by Lackawanna' s
new additional law Judge, Hon. j. w.
Carpenter, was rendered yesterday. 1t
deals with the equity case of Michael
Holland against Mary Hayes and 9TH
ers, which was heard before him in
chambers on Wednesday and Thurs
day of last week. He decides that the
plaintiff is not entitled to relief in
equity. thus denitting the case to ad-
judication in trespass or ejectment
proceedings.
Nh, opinion is written in the clear,
concise and compact style that was
characteristic of the reports Judge
Carpenter was wont to write of the
numerous cases he was called upon to
adjudicate as referee or arbitrator. 1t
Is given in full below.
Rule to continue preliminary injunction
The evidence shows that the plaintiff and the
defendant. Mary llayc., owners OF adjoining
lots in the city of Scranton.
The defendant has commenced thu construction
OF Il porch the side of her house, which, the
plaintiff claims. extends two feet over tn.
line onto his land She has also as he claims,
moved her barn about the same distance over the
line.
The defendant denies that either the porcl, or
the barn is the plaintiffs land, but claims
that both are within the boundary Of her own
lot
Tho plaintiff called surveyor. who testified
that he surveyed the plaintiffs lot and if the
line as located by him is correct, both the porch
and the barn are clearly over it and on the plain.
t1tf's land. On the other hand the defendant s
surveyor with at least equal appearance OF being
right. SO locates the line that the structures
both on the defendants land.
The plaintiff bases his claim TO relief on the
additional allegation of long continued possession
OF the strip OF land in dispute.
1t is undoubtedly true that he has been in
occupancy OF his lot some thrty.iive years. but
his own testimony well as that Of several Of
his witnesses, shows that the defendant. or her
husband who was then living. tore down the por-
ton OF the fence between the two houses about
twenty-five years ago, at time when he was
building new house. and that it has never been
replaced, and there has has been nothing to in.
dicate where that portion of the line is; and
Mrs Hayes denies that the line as claimed l,r the
plaintiff is the true line, that it has ever been
recognized treated as q division line between
the properties.
Thus the plaintiffs right is questioned on cy.
cry ground on which he puts it.
While it may be possible that jury would de.
eide in favor of the rlainig, his LACKS the
certainty and precision required before equity
will interfere by injunction. In Rhca *. For
syth, 81 Pa. 5O3 Woodward, j., said: where
the plaintiffs right has not been established at
law or is not clear but is questioned every
ground on which he puts it, he is not
entitled to remedy by injunction. It is not
enough that he is able to produce some evidence
OF his right. when there is conflicting evidence
that goes to the denial Of all right. In case so
situated the plaintiff should first establish his
right in an action at aw, 7rd then come n.to
chancery ii necessary. for the protection ct the
legally established right
We DO not deem it necessary to stay the defend.
ants band in this until lilc righ: has been
tried at law.
This case IS very similar TO farT vs.. Mullen, 5
Iackawanna Legal News, 3lS The rule 10 con.
tinuc til" preliminary injunction Is discharged
and the injunction dismissed.
The attorneys in the case We're JOS
cph O'Brien and NJ. j. Martin for the
plaintiff. and e. &. Donovan and T.. c..
Newcomb for the defendant.