Dissenting Opinion by
Judge Rogers:My brothers here affirm a lower court’s reversal of a Zoning Hearing Board’s decision that a bituminous concrete plant might not be constructed on appellee’s property. They do so by accepting a trial judge’s findings that the appellee is engaged in what is denominad ed “the road building business” and that it operates a ready-mix cement plant. So finding, it concludes that *218the bituminius concrete plant would be a part of one or more of these nonconforming activities.
We are compelled to dissent because we can find no evidence in this record that the appellee conducts any business other than that of quarrying and crushing stones and because the Supreme Court has held that a bituminous concrete plant is not accessory to or an enlargement or extension of an existing nonconforming quarry and stone crusher. Mignatti Appeal, 403 Pa. 144, 168 A. 2d 567 (1961).
The appellee chose to try its case before the Board by colloquy of its counsel with those present, with fugitive interjections of its chief executive officer. No witnesses were called or examined. This was an adversary proceeding in which the appellee had the burden of showing its entitlement to the permit it sought. Appellee’s counsel was either unacquainted with Mignatti Appeal, supra, or, apprehensive of it, hoped that the casualism of the proceedings might produce a fortuitous inference, or, in plainer words, that he might luck out.
As, for the road building business appellee is found to. be engaged in, the lower court admits that the record “does not specifically now show that . . . [the appellee] ... is engaged in the. selling of road materials.” The court supplied this evidence by reference to litigation conducted seven years previously in which a judge fon rid that a predecessor of the appellee conducted “a road building business” and by noting that there was no evidence in this record that this business had been discontinued! It thus devised yet another of those exceptions to the rule that the burden of proof rests on the moving party, applicable only in zoning cases and available only against municipalities. It was appellee’s burden to show what it did on the land and not that of the township to show that appellee had discontinued *219doing something a judge, found that someone else was doing seven years previously. Furthermore, this writer is unable to ascertain what either the lower court or his brothers in the majority mean by the phrase “the road building business.” This record shows that the appellee, as did Mignatti, quarries rocks which it crushes to stones suitable for sale for whatever purposes stones have. These activities no more constitute appellee a road builder than did Michelangelo’s use of their marble make sculptors of the quarrymen of Carrara.
Neither, can we find evidence that the appellee operates a cement plant. At the hearing counsel for the appellee stated on three occasions what he thought was the justification for the permit, and we quote: “The other application is for the installation of a bituminous concrete plant which is an extension of and a corollary to a stone quarry operation. . and “the installation of a bituminous plant is a part of the operation of the stone quarry” and again “It is part of the quarry operation.” Far from showing that the appellee operates a cement plant, the record reveals that an entity known as Kurtz Brothers may operate such a plant. It further discloses that an individual, H. R. Miller, the litigant hereinbefore mentioned, once owned appellee’s quarry and stone' crushers and that the appellee corporation, of which Mr. Miller is not a member, purchased the quarry and crushers from him. The- trial judge (not the record) informs us that Mr. Miller when he owned the quarry business applied for and by litigation in the county court obtained permission to establish a cement plant as an extension of. his quarry operation.1 The judge tells us that Mr. Miller built this plant; but there is no evidence that he did. -There *220is, however, reference to such a plant in existence at the location. Appellee’s counsel, discussing traffic at the Board hearing, remarked: “I might point out that, so far as traffic, the greatest consumer is, of course, the Kurtz Brothers plant which does not require any hauling at all. It is on the location so that hauling is done within the confines of the property and not on the public highway. That is for their concrete plant, you see.” If we were required to make findings from this record, we would find, by inference, that Mr. Miller disposed of his cement plant to Kurtz Brothers and the quarry operation to the appellee. If this happened, the appellee will have been permitted its bituminous plant in part at least as a continuation of another’s nonconforming use, a novel result indeed.
Lastly, even if the record supported a finding that the appellee operated a cement plant, we could not justify the establishment of the additional use of the property as the location of a bituminous concrete plant. As Mr. Justice Benjamin R. Jones wrote in Hanna v. Board of Adjustment, 408 Pa. 306, 313, 183 A. 2d 539 (1962):
“This ordinance does not prohibit the expansion or broadening of the scope of the present use. [citing cases].
“The use of the property which the ordinance protects, or ‘freezes’, is the use which was in existence at the time of the passage of the ordinance or the change of use district (Upper Darby Township’s Appeal, 391 Pa. 347, 138 A. 2d 99; Lance Appeal, 399 Pa. 311, 159 A. 2d 715) but it offers no protection to a use different from the use in existence when the ordinance was passed. . . . The nonconforming use which is within the orbit of protection of the law and the Constitution is the nonconforming use which exists at the time of the passage of the Zoning ordinance or the change *221in a use district under a Zoning ordinance, not a new or different nonconforming use.” (Italics in original). Tbe following have been held to be new or additional uses, not mere accessory or continued or extended nonconforming uses: a gasoline station on a property used as a residence and secondhand car business, Hanna v. Board of Adjustment, supra; a beer distributorship in the basement of a grocery store, Lance Appeal, 399 Pa. 311, 159 A. 2d 715 (1960); an industrial machinery manufactory and repair shop in a store and repair garage, Williams Appeal, 174 Pa. Superior Ct. 570, 102 A. 2d 186 (1954). Similarly, we believe that a plant for the production of bituminous concrete should not be held to be accessory to or a continuation or extension of the nonconforming operation of a cement plant.
This result was reached after Mignatti Appeal, supra, held to the apparent contrary.