The assignments of error are overruled and the judgment is affirmed.

upon, Smeltz closed the gutter, by putting a dam, about a foot high, across it, and thus forcing the water back into the road. The water then ran over the break into the middle of the road, and

Common Pleas -Equity. washed it out. When this was reported

to the supervisors, they, in company with their roadmaster, had a meeting with Mr. Smeltz at the place of dispute. They looked over the situation and discussed it, and Mr. Smeltz told them he had closed up the gutter to prevent the water from coming into his field. He also stated that he would not allow the water to be turned in on him, and, if the roadmaster went in and opened the gutter, again, he would give him "the best damn thumping ever" he "had." In the judgment of the supervisors, it was necessary to keep the water in this gutter for the protection of the hill, and Mr. Martin was authorized to open it on this account. For the purpose of preventing interference with the roadmaster, this bill has been filed. Considerable dispute arose concerning whether or not the water had been for

merly conducted from the road at this place; but much of this testimony we deem to be irrelevant and immaterial to the present issue.

CONCLUSIONS OF LAW.-The plaintiff in this case has filed this bill on account of the interference on the part of the defendant with a drain or ditch constructed for the purpose of carrying the water away from the roadway, which was made by the roadmaster by direction of the supervisors; and it is now contended, on its part, that the supervisors having exercised the power and authority imposed upon them by virtue of their offices, the defendant, in the absence of recklessness and oppression, had no right to interfere with their exercise of these powers.

FINDINGS OF FACT.-John Ulrich, L. C. Sprecher and John Hess were the Supervisors of Strasburg Township, in this county, and Wentz Martin was their duly appointed roadmaster. The de fendant is the owner of a farm, located in said township, on the public road leading from Strasburg Borough to White Oak. There is a hill, about threequarters of a mile in length, on said road, extending along the western side of the said farm, known as the White Oak Hill, which runs nearly north and south. Considerable water collects in the gutters along the same, and from time to time this water has been conducted from this road by means of Section 27, of the Act of June 13. breaks. In the spring of 1909, under 1836, P. L., 551, provides that "the superthe instructions of the supervisors, the visors aforesaid shall have power, and roadmaster repaired this road and open- they are hereby enjoined and required. ed the breaks and gutters, and about at the expense of the respective townthe middle of June, he made a gutter ships, to purchase wood, timber, and all into and upon Smeltz's property, at a other materials necessary for the purplace where the water had been accus- pose of making, maintaining and repairtomed to flow into the field. There-ing the public roads or highways, and

Section 28 declares that "the supervisors aforesaid shall severally have full power and authority within their respective townships, to enter upon any land or enclosure lying near to the said roads, and to dig, gather and carry upon said roads any stones, sand or gravel found on the same, which they may think necessary for the purpose of making, maintaining or repairing the said roads, when the same cannot be conveniently obtained by contract at reasonable prices, doing no unnecessary damage to the owners of the said lands, and repairing any breaches of fences which they shall make."

Section 32 provides that "the supervisors aforesaid shall also have power and authority aforesaid, to enter upon any such lands or enclosures, and cut, open, maintain and repair all such drains or ditches through the same, as they shall judge necessary to carry the water from the said roads."

to employ, oversee and direct a sufficient | tain duty, and, when, in the exercise of number of laborers to execute promptly it, they use their proper discretion in and effectually the provisions of the order to accomplish what they have been law, and the orders and decrees of the directed to perform, the defendant incourts having jurisdiction, concerning terferes with its performance. We such roads.' have, therefore, no doubt that, under such circumstances, they have a right to maintain the bill. As to the other objection, it is true that a bill in equity which has for its sole purpose an injunction against crime or misdemeanor does not lie: Klein vs. Livingston Club, 177 Pa., 224; but it is equally well settled that equity will interfere if the alleged criminal acts go further and operate to the destruction and diminution of the value of property. It was said, in Nittany Valley Railroad Company vs. Empire Steel and Iron Company, 218 Pa., 224, by McClure, P. J., in an opinion which was afterwards affirmed by the Supreme Court in a per curiam opinion, that," in a case where the public rights or private rights secured by statute and by contract are invaded and an injunction is asked for in order to protect them, no question of the amount of damages is raised, but simply one of right. The courts interfere to prevent wrong of a repeated and continuing character, or which occasion damages which are estimable only by conjecture and not by accurate standard." See, also, Commonwealth vs. Pittsburgh and Connellsville Railroad Company, 24 Pa., 159. In Walters vs. McElroy, 151 Pa., 549, it was held that, under the Act of June 16, 1836, conferring equity powers upon the Court of Common Pleas, injunction is the appropriate remedy for the prevention of trespasses and nuisances, which, by reason of the persistency with which they are repeated, threaten to become of a permanent character, and in such cases it is no objection to the jurisdiction of the Court of Equity that the injured party may have a remedy at law. In Raymond vs. Brandt, 21 LANC. LAW REVIEW, 401, we said: "It is undoubtedly true that, as a general rule, Courts will not interfere with the powers of a municipal or quasi municipal corporation, to determine for itself the best methods of constructing drains, sewers and highways;

And section 67, that, "if any person shall stop, fill up or injure any drain or ditch, made by any supervisor for the purpose of draining the water from any public road or highway, or shall divert or change the course thereof, without authority of the supervisors for the time being, such person shall, for every such offense, forfeit and pay a sum not less than four dollars nor more than twenty dollars."

Two objections are, therefore, raised by the defendant: First, that the bill can only be maintained by the Attorney-General; second, that the offense committed being punishable by a fine, that remedy alone must be pursued.

We do not think that either of these positions is tenable. It is true that, under certain circumstances, where the public interests alone are involved, the Attorney-General only can proceed; but the case at bar does not fall within those lines. Here, the Act of Assembly directs the supervisors to perform a cer

of the township are strictly within their rights. The Act of Assembly expressly authorizes them to enter upon the adjoining lands and enclosures, and “cut, open, maintain and repair all such drains or ditches through the same, as they shall judge necessary to carry the water from the said roads." They have, in this discretion, determined that it is necessary at this place to carry off the water from the road, for the preservation of the road, and, therefore, they instructed their roadmaster to cut such a drain as was necessary to accomplish that object. There is no evidence that, in making the drain, anything was done wantonly or oppressively. On the contrary, it would appear that good judgment and proper care were exercised to prevent undue injury. If, then, the supervisors had the discretion vested in them to cut and open this drain, and they did so, the defendant, by closing the same, was interfering with the road and impeding the supervisors in the performance of their duties; and to prevent such illegal acts we think injunction is the proper remedy. While, under the sixty-seventh section of the Act of 1836, the defendant could also have been punished by fine for filling up this drain, yet that was not the only remedy to be fol

for this is a discretionary power committed to the municipal authorities. They may, perhaps, prevent an abuse of such powers, but as long as the corporate authorities keep within the discretion conferred upon them, they are the exclusive judges of the plan and method of constructing their improvements. Town of Sullivan vs. Phillips, 110 Ind., 320. As has been said in Elliott on Roads and Streets, page 347: 'Highway officers have no right to invade private property negligently or intentionally, while prosecuting a public improvement.' But they may, however, use all of the way belonging to the public when necessary to properly fit it for the purpose for which it was set apart, and may, when the public good demands it, destroy the right of herbage and the like, without being deemed invaders of private rights. Whether it is or is not necessary to occupy and fit the entire width of the road for travel, must, in the great majority of cases, be a question for the decision of the local authorities, and their decision cannot be subject to judicial review, unless it appears that their discretion has been abused. There may, perhaps, be cases where the local officers have so wantonly and unjustly increased the servitude of the suburban ways as to war-lowed, because the injury might be conrant the interference of the Courts; but these cases must be rare, and it would require a very strong case to justify the interference of the judiciary; for, in every instance where land is set apart for a road or street, it becomes subject to the control of the highway officers, and they may devote every part of it to the public use for travel." In McCormick vs. Kinsey, 10 Sup., 607, it was decided that "a Court of Equity will not interfere by injunction with the discretion of road supervisors in the better-"It is also urged that, there being a remment of the drainage of a public road, although they may have partially changed the courses of surface water, without increasing the volume, which would have found its way ultimately and in any event on the land of plaintiff, which land was naturally servient to all the water of that particular watershed."

Therefore, we think the supervisors

tinuous, and the imposing of the fine would not be an adequate remedy. The fine might be paid and the defendant might persist in keeping the ditch closed, and the public would thereby suffer by the washing of the road occasioned by the inability of the supervisors to properly drain the same. In Commonwealth vs. Doylestown Supervisors, 16 C. C. R., 161, where the question was raised as to whether the writ of mandamus could issue, Yerkes, P. J., said:

edy by indictment, no mandamus can issue. But a criminal prosecution is at most a partial remedy in a case of this kind, and to be resorted to after the supervisors have acted. It serves to punish for past neglect or wrong-doing. and to compel an abatement of an exist ing public nuisance. It is an awkward and ineffectual remedy against a con

tinuance of the evils complained of; since it cannot compel specific acts to be done, it is not equally convenient, beneficial or effective with the proceeding by mandamus."

We are, therefore, of the opinion that this bill should be sustained, that the temporary injunction issued in this case should be made permanent, and that the defendant should pay the costs of these proceedings.

Common Pleas--Law.

Seven objections have been filed to our granting the charter asked for, by seven members of Commandery No. 29, Knights of St. John, who allege that they are acting for themselves and twenty-five other members, whose names they give.

The first of these objections is that the charter was not filed in the office of the prothonotary. The law does not require that it should have been so filed, and we would not be justified in refusing to grant the charter on that account. It is the better practice to file it there, so that any one opposing it may have the opportunity of seeing whether it contains anything objectionable, and if that opportunity has not been given in any

In re Application for Charter of St John's case, we would defer action on the appli

Beneficial Union.

Filing of proposed charter before application— Advertisement-Similarity of names-Purpose to supplant existing corporation.

While it is the better practice to file in the Prothonotary's office the proposed charter of a corporation of the first class before application to court, there is no law requiring it

and a charter will not be refused because not so filed, but action on the application should be deferred until full opportunity is given for an examination of it.

cation until full opportunity had been given for an examination of it. This proposed charter has been on file in the prothonotary's office for some time, and those opposing it have had abundant opportunity to examine it, and we must assume that they have done so and found nothing wrong in it, but what is stated in the objections.

The second objection is, that the advertisement fails to show the residences of the members and the intended location where the said society will exist, and where it proposes to hold its meet

The advertisement of application for a charter need not show the residences of the members and the intended location of the corpora-ings. tion and where it proposes to hold its meetings. It is sufficient if the notice to apply for a charter of the first class be published for three weeks in two newspapers of general circulation and the LANCASTER LAW REVIEW, Setting forth the character and objects of the proposed corporation.

A charter will not be refused to the "St. John's Beneficial Union" because of the existence of a beneficial society known as "Commandery No. 29, Knights of St. John."

A charter will not be refused because the proposed corporation is seeking to obtain the property of an existing corporation and a bill in equity is pending to restrain the officers of the latter from diverting said property to the former.

Trust Book No. 21, page 411.
Objections to granting charter.

Section 3 of the Act of 29 April 1874, P. L. 75, requires the charter of an intended corporation to show the names and residence of the subscribers, and the place or places where the business of the proposed corporation is to be transacted. The proposed charter in this case meets these requirements. There is nothing in the statute or rules of court requiring them to be inserted in the advertisement. Section 3 of the Act of 29 April 1874, P. L. 75, provides that a notice of the intention to apply for a charter shall be published in two newspapers of general circulation, printed in the proper county, for three weeks, setting forth briefly the character and object of the corporation

WV. U. Hensel and W. C. Rehm, for to be formed and the intent to make apobjections.

Coyle & Keller, contra.

plication therefor. Section 1 of Rule 7 of our rules of court requires a similar advertisement to be inserted in the July 19, 1910. Opinion by HASSLER, J. LANCASTER LAW REVIEW for the same