Breisch v. Locust Mountain Coal Co.

Citations

• 267 Pa. 546
• 110 A. 242
• 9 A.L.R. 1330
• 1920 Pa. LEXIS 909

Syllabus

<p>Mines and mining — Highways—Removal of coal under highway —Right of abutting owner — Nuisance—Agreement with supervisors — Attorney-at-law•—Public rights — Nonuser—Commonwealth— Laches — Equity—Practice—Injunction—Mandatory — Withholding writ — Act of May 5,1911, P. L. 128.</p> <p>1. An owner of land abutting on a highway may use the land for his own purposes in any way not inconsistent with the public easement, and is entitled to all profit and advantage that may be derived therefrom.</p> <p>2. An abutting owner owning coal under a public highway has the right to mine and remove it, but the removal must be done in such manner as not to injure the surface of the highway, or create a condition whereby injury may follow later.</p> <p>3. A coal company acquired no right to interfere with the surface of a public highway for the purpose of mining coal, under an ¡agreement with the highway supervisors or their attorney that another road should be provided by the company, inasmuch as an encroachment or obstruction was a nuisance per se which could ■not be legalized unless the highway was vacated in the manner provided by law; nor can laches be imputed to the Commonwealth under the circumstances of the case; and occupancy of the property inconsistent with the public rights, is a public nuisance; and no length of time will legalize a public nuisance.</p> <p>4. To permit such an evasion of a legislative mandate as to highways would be to create an easy method to have important highways changed to suit the convenience of a few persons without notice to others who might be injured thereby.</p> <p>5. A public highway is the property of the people of the whole State and the public rights cannot be lost by nonuser or by municipal action not expressly authorized by law.</p> <p>6. Where a coal company has wrongfully mined under a public highway, the supervisors as municipal authorities are the proper officers to ask for a compulsory mandate to redress the injury.</p> <p>7. Under