dissenting:
Since I am unable to agree that the voluntary erection of a private mailbox upon the property of another constitutes a public use of the highway easement, I must dissent.
The defendants, John M. and Verna A. Nichols, husband and wife, bought a residence in Washington Township, Franklin County, in January 1984. After moving in, they were informed by the local postmaster that mail would not be delivered to the north side of the road where their property was situated. Without securing the plaintiffs permission, the Nichols erected a mailbox on plaintiffs’ land, in the right of way on the south side of the road. The Nichols refused plaintiffs’ request to remove the mailbox and plaintiffs brought suit in ejectment.
The trial court granted judgment on the pleadings, ruling that a private mailbox is not an instrument of “public use” for the purposes of a public use easement. I agree and would, therefore, affirm the order granting to the plaintiffs a judgment on the pleadings.
The issue in this case does not involve the right of the United States Postal Service to designate where they will pick up, or deposit, mail along rural routes. Nor does this appeal present any question of whether mailboxes may be installed within a public right of way, under certain circumstances. The sole issue presented, in my view, is whether a private mailbox may properly be characterized as a “public use” as a matter of Pennsylvania law. I have found nothing in the law to support what amounts to the obstruction of the fee owners’ right to uninterrupted enjoyment of the fee.
Plaintiffs have title to the center of the roadway, subject only to an easement of public use. Even after Pittsburgh National Bank v. Equitable Gas Company, 421 Pa. 468, 220 A.2d 12 (1966), the necessity of establishing a public use remains. Our supreme court recognized in 46 South 52nd Street Corporation v. Manlin, 398 Pa. 304, 157 A.2d 381 (1960) that no person, corporation or individual has the right to make a special or exceptional use of the public highway *514not common to all citizens except by grant from the sovereign power. Id., 398 Pa. at 315, 157 A.2d at 387. There, quoting with approval from Hindin v. Samuel, 158 Pa.Super. 539, 542, 45 A.2d 370, 372 (1946), our supreme court recognized that:
The highways belong to the commonwealth in trust for the great body of the people, and he who claims a peculiar privilege to invade them must establish his right under some statute, or valid municipal regulation, ordained in pursuance of statutory authority.
The narrow holding in Manlin, which reversed a decree permitting operation of a newstand on a public sidewalk, is to the effect that no private use of another’s property is permitted where there has been no express approval of such use by either the municipality involved or the fee-owner. The Manlin majority accepted the property owner’s contention that no private use may be made of the sidewalk in opposition to or over the objection of the owner, whose private right is superior to any other private right. The same rule must obtain here, where a township roadway is involved.
Which returns us to the central issue in this case. Does the erection, by an individual, of a private mailbox upon another’s property constitute an authorized public use which takes priority over the fee-owner’s private right? Unlike the majority, I do not find Pittsburgh National Bank v. Equitable Gas Co., supra, helpful in this analysis since, there, the Supreme Court assumed that subsurface public utility lines constituted a public use. The court was merely faced with whether the rule which theretofore had only been applicable in cases involving cities and boroughs should be extended to include townships.
I agree with the distinguished trial judge, the Honorable John R. Walker, that public use easements acquired through eminent domain may provide incidental benefits to private parties but the public must be the primary and paramount beneficiary. This is clearly true even where a public authority seeks to utilize its powers. Price v. Phila*515delphia Parking Authority, 422 Pa. 317, 221 A.2d 138 (1966). As Judge Walker correctly points out in his able opinion supporting judgment in favor of the fee-owners, one attribute of instruments designated for public use and public good is that the benefit of the instrument somehow inures to the good of the community in general. Along with Judge Walker, I fail to see how the nonconsensual placement of the Nichols’ private mailbox on plaintiffs’ land benefits the public in general to any degree cognizable in law.
I find nothing in the record before us to support the majority’s conclusion that commerce would be greatly impaired if we do not permit one property owner to use another’s property without compensation or permission. Nor do I find any support in the case before us for the majority’s observation that mailboxes permit rural residents who may live miles from the nearest post office to send and receive communications in commerce where they otherwise could not. While the majority, seemingly relies on the assertion by the United States Postal Service that there are over 17 million rural mailboxes along nearly 41 thousand rural carrier routes, neither the majority nor the Postal Service enlighten this writer as to how many, if any, of those mailboxes have been erected over the objection of the property owner and without compensation.
The result announced by the majority will permit any person to select a spot of his or her choosing upon another’s property and — so long as the site remains within an easement for public use — place a private mailbox on that site, without notice to the property owner involved and with no participation by municipal authority or other third party review. The majority is prepared to transfer to a United States Postal Service user the right to seize a person’s property without due process of law and without compensation. I find this both unnecessary and most unfortunate.
The trial court astutely found that the Nichols were not without recourse. They remain free to contract with other landowners in order to secure a proper place along the *516delivery route for their mailbox. They also are free to rent a local post office box. On the record before us, they would even remain free to seek some agreement with the plaintiff fee-owners for maintaining their mailbox where it was erected. Since I cannot be persuaded that private, individual mailboxes rise to the level of a public use inuring to the benefit of the community in general, and since the defendant-appellants have reasonable alternatives to their attempted appropriation of another’s property, I must respectfully dissent.