Opinion by
Mb. Justice Bbown,That the Oley Yalley Railway Company, incorporated under the general railroad act of April 4,1868, proposes to construct a street passenger railway on the streets of the borough of Boyer-town, is so manifest that it is hardly conceivable how, in good faith, it can insist that its purpose is different. With the bill, answer and the borough ordinance of December 17, 1900, formally accepted by the appellee, before us, the only possible conclusion is, that it has undertaken to exercise a right expressly withheld from it by the statute creating it. Its effort is not even a cunning or ingenious device to evade the plain terms of the act, but a bold defiance of them, notwithstanding the protestations in its answer. The learned judge below should have so told it. In Gaw v. Bristol & Bridgewater Railroad Co., 196 Pa. 442, upon which he seems to have relied, it was distinctly found as a fact, upon sufficient evidence, that it had not been shown that the intention of the company was to operate a “ railroad as a street passenger railway only, and not as a steam railroad, within the meaning of the law.” There could be no such finding here.
For a case like this, the act of June 19,1871 was passed, and the appellant properly turned to it as authority to the court to issue its summary process for the protection of his property from injury resulting from the unauthorized and illegal act of the appellee. As it does not possess the right or franchise to do what it proposes to do, that process should go out. At this time, no other question need be considered and nothing else need be said. The decree refusing the preliminary injunction is reversed and the record is remitted to the court below, with direction that it order the preliminary injunction to issue as prayed for in the bill, the costs of this appeal to be paid as may be directed on final decree.