a public road, or recognized or adopted as such the report simply a road, and on the draft by the township authorities; but it was claimed accompanying the report, a "private to be such by dedication and use. There was evidence of use, but there was also evidence of road." a gate across it, showing the owner's control. HELD, that the exception must be sustained and the report set aside.

Permissive use may establish a dedication, attended by public expenditures, and by circumnstances clearly indicating the owner's design to surrender control to the public; but exercise of authority over the road amounts to a virtual denial of its public character.

There is no contention that this road was ever laid out as a public road or that it has ever been recognized or adopted as such by the township authorities, but that it is such by dedication and user. To assume this position admits that the road as laid out does not reach the station, but that this private road must be

The Court's opinion shows the qucs used for that purpose. tion involved.

E. W. Spangler for exceptions.
V. K. Keesey for report.

February 24, 1896. STEWART, J Six exceptions were filed to this report, all of which were abandoned on the argument excepting the first two.

These are as follows:

1st. "The termini of the proposed road in the petitions and notices are different from the termini in the report

2nd. "The ending of the road in the petition as well as the report is not in a public road."

The first exception is not sustained. The termini are sufficiently definite, the actual difference between the point of be ginning asked for in the petition and that shown by the report being only nine and a half feet; and the difference in the end ing being forty feet, or not more than that. This I think is a substantial coincidence.

A public road may be laid out and opened in the manner prescribed by law, or by dedication by the owner or owners of the property over which it passes. It can not be established by use merely but use is evidence of dedication. Dedication is matter of intention and long continued use by the public may be evidence of an intention to dedicate but by no means conclusive and always yields to contrary proof; Griffin's Appeal, 109 Pa. 150.

public would not establish a right by The joint use by the owners and the dedication, no matter how long continued. The intention to dedicate must be clearly manifest; Griffin's Appeal, supra.

A permissive use of less than twentyone years may establish a dedication if attended by public expenditures and by circumstances clearly indicating the own er's design to surrender control to the public; Commonwealth vs. R. R. Co., 135 Pa. 256.

But a mere permissive use of a way by the public will not create a public highway by prescription: the use must be and under a claim of right; Root vs. Com.,

The second exception raises a more serious question. Campbell's station, the objective point to be reached by this road, is a passenger station, or rather a stopping place on the York and Wrightsville 98 Pa. 170. Railroad. There is no station house In view of these authorities, and of the there, only a small platform on the North proofs offered, the road in which the proside the tracks, where people get on and posed road terminates is not a public off the cars. The Railroad Company has road. The evidence shows a use by some

a telegraph office for its own use in case few people for thirty five years, but not of emergency, and used when an unusual an extensive use, but it further shows number of trains are being run, as for in- that there was a gate maintained across stance on the occasion of holding the it showing the owner's control and an auCounty Agricultural Fair at York, but thority over it, and that he had not renot for public purposes. The station, linquished the control to the public. however, is a sufficiently public place at There was further evidence of authority which to terminate a public road. The exercised by Thomas G. McDowell, who road as laid out, does not reach the sta is married to one of the Campbell heirs. tion nor the tracks of the railroad, but over the private road, amounting to a ends in a road ninety feet south of the virtual denial of its public character. tracks of the railroad. The road in which I therefore sustain the second excepthe proposed roa i terminates is called in ition, and set aside the report.

It may now be taken as settled that the owner's rights as to abutting property are subject to the paramount right of the public and the rights of the public are not limited to a mere right of way, but extend to all beneficial legitimate street uses, such as the public may from time to time require."

Motion to dissolve preliminary injunc

tion.

The plaintiff's bill was as follows:
Your orator. The York Telephone Com-

York Telephone Company v. Keesey. Telephone Company-Poles-Erection of. Plaintiff's bill alleged its incorporation under the general Act of 1874 and the Act of 1876, May 1, P. L. 90; that an ordinance of the City Pany, the plaintiff above-named, comof York gave it anthority to take out a license plains and says: and erect poles for the purpose of carrying its 1. That your orator, The York Telewires for the transaction of its business; that a pole was necessarily erected in front of defend- Phone Company aforesaid, is a corporaant's premises; that defendant cut down said tion, duly incorporated under, and in pole and threatened to cut down any pole that pursuance of the provisions of an Act of might be erected, and asked for an injunction the General Assembly of the Commonto restrain him from interfering with the erec-wealth of Pennsylvania, entitled "An tion or maintenance of its poles. Defendant's answer admitted the incorporation and the cut- Act to provide for the incorporation and ting down of the pole, and denied that said pole regulation of certain Corporations," apwas erected in compliance with the city ordi- proved the 29th day of April, A. D. 1874, nance, as the proper application had not been and of the several supplements thereto. filed. Defendant also denied the constitutionality of the Act of 1876 and the right of the and particularly of an Act of the General plaintiff to erect its poles without first having Assembly of the Commonwealth of Pennpaid or secured the damages occasioned by the sylvania supplementary thereto, approved erection and construction of its lines. HELD, the 1st day of May, 1876. That your that the injunction will be granted. orator's certificate of incorporation was in due form of law produced to, and approved by the Governor of the Commonwealth of Pennsylvania, and subsequently, to wit, on the 21st day of January, 1895, was entered for record in the Office for the Recording of Deeds, etc., in and for York County, Pennsylvania, in Record Book 10 E, page 652, etc., and that Letters Patent, bearing date the 16th day of January, 1895, were issued under the seal of the Commonwealth in due form of law, incorporating the subscribers to said certificate of incorporation, their associates and successors, etc., into a body politic and corporate, by the name of

The complainant had no right to go and plant and erect its poles without first having filed the application required by the general ordinance, and designating the number, size and position of the poles, and without having paid the license fee, and the city or any property owner affected by such erection could raise the question; when therefore the defendant cut down the first pole erected in front of his premises he was guilty of no improper conduct, and could not be held responsible for so doing.

The city ordinance provided that "Any corporation, firm or individual which is now enjoy ing or may enjoy hereafter the privilege of erecting poles within the limits of this city, for the purpose provided in the ordinance, shall be liable for all damages caused to public or private property by reason of said privilege.' HELD, that the payment of damages by the company is not a condition precedent to its right to plant poles.

The fact that the title of the Act of 1876 refers to "telegraph companies," while the first section contains the words "or for the transaction of any business in which electricity over or through wires may be applied to any useful purpose, "' is no ground for declaring it unconstitutional.

A telephone company is a quasi public co poration, and must serve every one who applies for its service on equal terms.

Though the erection of poles and the stringing of wires along the public streets was not contemplated when the street was first opened (nor were lamp posts, gas and water pipes, and street railways it does not impose an additional servitude on defendant's property.

The York Telephone Company;" and that under and by virtue of said certifi cate of incorporation and of said Letters Patent, issued as aforesaid, the said The York Telephone Company was organized and has ever since maintained an organization in due form of law.

That said corporation was formed for the purpose of erecting, constructing, purchasing, leasing, and operating telephone lines and exchanges, in and through the County of York, Pennsylvania, with the right to make connections for the purpose of telephonic communication with other similar lines in other Counties of said state, as well as in other States, and

for the transaction of business by indi- fying the number and size of poles inviduals, firms and corporations by the tended to be erected by it, and designattransmission of communications in the ing the places where the same are form of articulate speech, by and between intended to be inserted, in which applicapersons at a distance from each other, by tion there was specified, inter alia, "one means of electricity over or through wires 35 foot pole at South West Corner of attached to, or supported by poles, in- West Market Street and Beaver Street." serted in the ground. whereupon, on same day the Mayor of said City under his hand and the seal of his said office, issued a license to your orator to erect the poles in the said application specified upon the payment by your orator of the money specified in the City ordinance as a license fee. That afterwards, to wit, on the 24th day of January, 1896, your orator paid to the City treasurer of the City of York, for the use of the said City the sum of fifty cents for each and every pole proposed to be erected, and enumerated and specified in the aforesaid written application to the Mayor of the said city; and that your orator now holds the receipt of the said City treasurer for the sum of $76.50, being the entire license fee charged or chargeable on the poles enumerated and specified in the said application.

2. That before the exercise of any of the powers incident to the Plaintiff Company, whether given to it under the provisions of the Act of Assembly approved May 1, 1876, herein before mentioned, or otherwise, application was made by your orator to the municipal authorities of the City of York, Pennsylvania, for permis sion to erect poles and run wires on the same over the streets, lanes and alleys of the said City of York, whereupon by an ordinance duly passed, and approved on the 15th day of October, 1895, the permission, so requested, was given by the said municipal authorities, which ordi nance was in words following, to wit:

“An Ordinance Granting to the 'York Telephone Company' the right to use the highways of the City of York for the purpose of planting poles and suspending wires for the conduct of its business.

Your orator further avers that it has complied with the provisions and regulations of all ordinances now in force in said City of York; that it has paid the regular license tax fixed by ordinance upon all poles, specified in the aforesaid application, to which the wires and appliances of whatsoever kind of said Company are to be suspended or attached, whether said poles are erected, owned, controlled and used by said Company exclusively, or jointly with an individual, firm or corporation; and that ever since

SECTION 1. Be it ordained by the Select and Common Councils of the City of York: That permission be and is hereby granted to 'York Telephone Company' to use the highways of the City of York for the purpose of planting its poles and suspending its wires, and of renewing the same when necessary, for the conduct of its business. Provided said company complies with the provisions and regulations of all ordinances now in force, and which may hereafter be enacted by said City. the adoption and approval of the or'And provided said York Telephone dinance of October 15, 1895, your orator Company pays the regular license tax has prosecuted the work of constructing fixed by ordinance upon all poles to its line, and that unless hindered by the which the wires and appliances of what- unauthorized interference of others, it soever kind of said Company are suspended or attached, whether said poles are erected, owned, controlled and used by said Company exclusively, or jointly with an individual, firm or corporation.

'And provided the said York Telephone Company shall commence business fully equipped within one year from the date of the approval of this ordinance."

Your orator further avers that afterwards, to wit, on the 23rd day of January, 1896, it submitted to the Mayor of the City of York a written application speci

will be in a position to commence, and will actually commence, business fully equipped, within one year from the date of the approval of said last mentioned

ordinance.

3. That one of the poles specified in the said written application to the Mayor of the said city, to wit, the 35 foot pole designated to be erected at the Southwest Corner of West Market Street and Beaver Street in the City of York, aforesaid, is licensed to be erected in front of property claimed to be owned by Horace Keesey,

your orator in the full enjoyment of its rights; and further to grant such other and further relief to your orator as the circumstances of its case requires, and to your Honors may seem meet.

The answer filed, after generally deny. ing paragraphs 1 and 2 of plaintiff's bill, proceeded as follows:

Esq., the within named defendant. That ant, his agents and employees, from in said Horace Keesey, heretofore, to wit, any wise interfering with or molesting on the 21st day of January, 1896, by his agents and employees, cut down and overthrew a pole which had been erected by your orator in front of the said prem ises, and has since frequently and openly avowed and declared to C. A. Eisenhart, President, C. C. Frick, Treasurer, and W. F. Myers, one of the directors of the Plaintiff Company, at the time of, and (5.) I deny plaintiff's allegation in after the issuance of the said license to paragraph 2, of its bill, "That it has your orator by the Mayor of the City of complied with the provisions and regulaYork, his determination and intention to tions of all ordinances now in force in said resist the erection of any pole in front of City of York;" and aver that, on the the premises aforesaid, claimed to be contrary, it has violated certain provisions owned by him, and at the same time and of said ordinances of November 17th, to the same persons, and at other times 1893, and October 15th, 1895, in the folto other persons has openly and in terms lowing particulars: threatened to cut down and overthrow any pole which your orator may hereafter erect at the said Southwest Corner of West Market Street and Beaver Street, in front of the said premises claimed to be owned by him.

4. Your orator further avers that the erection and maintenance of the said pole at the said place, to wit, at the Southwest Corner of West Market Street and Beaver Street in the said City of York, is essential and necessary to the conduct of its business, and to the continuity of its line, that the said location is in the midst of the business section of the city, where many of your orator's customers reside; that should the defendant carry into exe

(1) It unlawfully, and without the permission of said municipality, erected its poles on Market and certain other fendant's premises at the curbstone, at streets of said city, including one on de

the corner of West Market and Beaver streets, in said city, before it had presented to the Mayor of said city, a written application for a license to erect the same, as required by said ordinances.

(2) It unlawfully kept up, and maintained said poles so erected, in violation of said city ordinances down to the 23rd day of January, 1896, at which time it made its first written application to the Mayor of said city for a license to erect

the same.

(3) The application for said license, as then made to said Mayor, did not designate with sufficient certainty the places where said poles were to be inserted.

cution his threats to resist the erection of such pole, or cut down the same after it shall have been erected, he will violate the vested rights of your orator, render nugatory the rights, franchises and privi leges conferred upon it by the Acts of (a) It did not designate at all, where Assembly and the ordinances of the said the poles were to be placed with referCity, and inflict upon the Company plain-ence to the street line-whether at the tiff irreparable injury for which your curb, or at the house line, or elsewhere. orator has no adequate remedy at law.

Wherefore your orator prays your (b) It did not specify the spots where Honorable Court to grant and award an said poles were to be inserted-but named injunction, special until hearing and per a certain number to be erected within a petual thereafter, against the said Horace certain distance-or between certain exKeesey, his agents and employees, en-treme points,—although a number of said joining and restraining him, them and poles were then already actually erected, each of them, from interfering with either and the places of their erection therefore the erection or maintenance by your ora easily designated. tor, of the said pole at the said Southwest (c) It did not in a single instance. Corner of West Market Street and Beaver name or designate the property holders Street in the City of York aforesaid, and on whose property the poles were to be restraining and enjoining the said defend-erected and maintained, so that they

(8.) I admit that I am the owner in fee of the real estate situate on the south west corner of West Market and Beaver streets in said City of York, and that on the 21st day of January, 1896, I caused to be cut down, a certain pole erected by said plaintiff on the sidewalk, in front of said premises, against my objection thereto, and without a license from the Mayor of said city to erect the same, and without by the expenditure of a small additional having complied with the ordinances regulating the erection of its poles or obtained other legal authority for so doing. (9.). I deny that both before and after the issuance of the plaintiff's license to