Downing v. Dawson Construction Co. DISCUSSION The facts in this case seem to be that the Dawson Construction Company became indebted to the Downing Sand and Gravel Company, judgment was obtained, execution issued and levy made upon personal property of the defendant. There was delay in making the money on the execution through stays awarded by the Court, and when execution was finally released and the Sheriff proceded to make sale, he found that the property levied upon was gone and that L. V. Dawson had shipped it away. Dawson was later arrested, brought to this city, satisfied the execution, deposited cash bail, was released and has disappeared from the scene entirely. Before the money had been paid over to the execution creditor, the petitioner, the Columbian Construction Company, a stranger to the record, came in and claimed that the money was advanced by it to Dawson for the purpose of deposit as bail for his release on the criminal proceedings and not for the purpose of satisfying the writ, and that Dawson, by satisfying the writ, misappropriated the money and that the money belonged, therefore, to it and should be ordered returned. It is a new proposition to us, how money, which is legal tender and circulating medium, having been paid to extinguish, or at least apply on a debt admittedly owed to the payee, can be ordered returned by the party to whom it was paid to the party from whom the payor borrowed it, because the party from whom it was borrowed alleges it was not used in conformity with the representations made by the party to whom it was loaned at the time it was borrowed. Such a procedure might disrupt any business transaction and render payment of every debt questionable. However, we do not deem it necessary to decide whether or not in the abstract, the Columbian Construction Company is entitled to have this money returned to it if the facts were as it alleges, as we do not find the facts that way, for the reason that both the Sheriff and his Deputy testified that they heard this end of the conversation over the telephone between the Co Downing v. Dawson Construction Co. lumbian Construction Company's representative and Dawson and there was not a word said about the money being used for deposit as bail, that the negotiation was for $2,000.00 with which to pay the debt, and this disposes of the question before us. And now, to-wit, March 2, 1922, the rule granted April 19, 1920, to show cause why Guy H. Fox, Sheriff of Erie County, should not be restrained from paying the sum of $1,679.00 to the Downing Sand and Gravel Company and ordered to pay the same over to the petitioner, the Columbian Construction Company, or direct that the same be paid into Court in order to "determine the various pretentions or direct an issue," is discharged and the Sheriff is now directed to pay the money to the execution creditor in the writ. BALDWIN V. CONWAY Equity-Municipalities-Public Streets-Nuisance. Ownership of land ordinarily vests title to the center of an abutting street, subject only to the easement of the city for legitimate municipal purposes. A municipality cannot give permission to use any part of the highway for a purely private purpose, and the maintenance of a newsstand will be restrained as a private nuisance. The fact that plaintiff brought this action on the failure of defendant to continue payments of rent, does not affect his right of action. Bill to restrain private nuisance, No. 1, September Term, 1921. C. P. Erie County in Equity. S. Y. Rossiter & Otto Herbst for Plaintiff. W. R. Seabrook for Defendant. HIRT, J., March 1, 1922. Baldwin v. Conway. This is an action in equity to restrain a private nuisance, before the Court on exceptions to defendant's answer, raising the question of the sufficiency of the answer. From the averments of the bill and the admission of the answer, it appears that: (1) Plaintiff is the owner in fee of land situate on the southwest corner of Tenth and State Streets, in the City of Erie, having a frontage on Tenth Street of 100 feet and on State Street of 40.8 feet. (2) Defendant has erected and has maintained a news stand upon the space between the sidewalk and the curb on Tenth Street in front of the property of plaintiff. The prayer of the bill asks that the defendant be restrained from maintaining this news stand and for a further order compelling him to remove the same. Defendant in his answer, admitting the facts above set forth, avers that plaintiff has been charging defendant at the rate of $10.00 per month for the privilege of maintaining the news stand in front of his building and that on the refusal of defendant to make further payments, this action was brought to oust defendant. Defendant avers that for this reason plaintiff has not come into court with clean hands and that, therefore, he cannot maintain this action. This averment is the subject of the exceptions. DISCUSSION. Plaintiff's ownership of the land vests in him the fee to the center of the street subject only to the easement of the city for legitimate municipal purposes. Even though a permit has been given defendant by the city to maintain and operate a news stand at this location, yet such permission is not in the furtherance of a municipal purpose and cannot affect the rights of plaintiff. A municipality cannot give permission to use any part of the highway for Baldwin v. Conway. a purely private purpose. Seibert vs. Sebring, 55 Pa., Sup. Ct. 475; Paul vs. Carver, 26 Pa., 223. The occupation of a part of this land by defendant is a purpresture in that it is an appropriation of a part of that which belongs to and ought to be free and open to the enjoyment of the public at large. As to plaintiff, the occupation of the land by defendant is an invasion of property rights vested in plaintiff and for this reason the purpresture is a private nuisance. Any person who is injured by a private nuisance may bring a proceeding in his own name and where a wrong is of a character or productive of damages which cannot be estimated by ordinary standards, the damages may be said to be irreparable and injunction will lie. Pennsylvania Lead Co.'s Appeal, 96 Pa., 116. There remains then, only the question as to whether the allegation that plaintiff brought this action to oust defendant for non-payment of rent will bar the right to injunction. "Who comes into equity must come with clean hands," but the test, whether a demand connected with an illegal transaction can be enforced, is whether plaintiff requires the aid of the illegal transaction to establish his case. "Where the party seeking to recover is obliged to make out his case by showing an illegal contract or transaction, or through the medium of an illegal contract or transaction, he is not entitled to recover, but an agreement will be enforced even if it is incidental or indirectly connected with an illegal transaction, if the party did not require the aid of the illegal transaction to make out his case." Stern vs. Liberty M. I. Co., 269 Pa., 559. In this case the alleged payment of rentals required of the defendant as a condition on which his right to occupy the land depends, does not go to the essence of plaintiff's right of action. His right to abate the nuisance is not affected by this or any other contract or agreement subsisting between him and the defendant. For this reason the allegations of the answer as to the motive of plaintiff in bringing this action (which is the sole defense interposed) are impertinent to the issues in this case. Baldwin v. Conway. CONCLUSIONS OF LAW 1. The answer of defendant is insufficient in law; the exceptions to the answer should be sustained. 2. An injunction should issue restraining the defendant from using, operating and maintaining the newsstand in question. 3. An order should be entered compelling defendant to remove the newsstand in question from the premises forthwith. 4. Defendant should pay the costs of this proceeding. ORDER And now, to-wit, March 1, 1922, the Prothonotary is directed to enter a decree nisi in accordance with the above opinion, to become absolute unless exceptions are filed sec. reg. ESTATE OF JAMES M. POLLOCK Decedent's Estate-Collateral heirs-Cousins entitled to Inherit. The deceased who was unmarried died June 18, 1920, without issue, leaving to survive him as closest kin, five first cousins. Held, the five cousins are entitled to the estate. Audit of Administrator's account, No. 49 February Term, 1922. O. C. Erie County. J. E. Reed for Accountant. CLARK, P. J., March 16, 1922. This account came before the Court for hearing March 2, 1922, and testimony taken from which it appears James |