Concurring and Dissenting Opinion by
Mr. Justice Bell :For reasons hereinafter set forth, I would reverse the decree of the Court below, without any qualifications or reservations.
Defendant Manlin is the absentee owner of a very large permanent newsstand which he erected and maintains on the sidewalk of plaintiffs’ private property. He asserts an exclusive monopolistic right to own, maintain and operate this newsstand (1) on the basis of public convenience and (2) under an ordinance of the City of Philadelphia, but principally (3) under the banner of “freedom of the press”. Plaintiffs filed a bill in equity for a permanent injunction to restrain the maintenance and operation of the newsstand. *321Plaintiffs undoubtedly have an interest and a status to bring this suit: Thomas v. Inter-County Street Ry., 167 Pa. 120, 31 A. 476; Riley v. Pennsylvania Co., 32 Pa. Superior Ct. 579; and of course Equity has jurisdiction.
The lower Court permitted defendants, their agents, employees or licensees to maintain the newsstand at its present location, but limited the defendant to the sale of daily Philadelphia newspapers; ordered the reduction of the newsstand to 4 feet 11 inches in length at the base, 32 inches in width at the base and 65 inches in height, and permitted a removable covering; and “in all other respects the complaint is dismissed”. Prom this decree both plaintiffs and defendant Manlin* appealed.
The importance of the issues involved is strikingly emphasized by the fact that the Evening Bulletin, The Philadelphia Inquirer, The Philadelphia Daily News, Select Magazines, Inc. (national distributor of Time, Life and United States News and World Beports), Triangle Publications, Inc. (publisher of TV Guide), United News Company (Philadelphia area distributor of the New York Times), and the Bureau of Independent Publishers and Distributors filed briefs under Buie 46 of this Court and their counsel were permitted oral argument.
Oscar Manlin started as a boy to sell newspapers in front of plaintiffs’ premises in 1932. In that year defendant Manlin requested and received permission from the then owner of 46 South 52nd Street to operate a small newsstand about 4 feet long, 24 inches wide and 5% feet high. Since then Manlin has gradually added various racks, additional stands and benches to his original newsstand, so that at the time of the com*322mencement of the present action in November 1956, Manlin’s original newsstand was extended to include two newspaper stands, several benches and racks, and a magazine stand, which measured 9 feet 4% inches in length, 4 feet 1 inch in width, and 6 feet 3 inches in height. Manlin sells from this newsstand six or seven different newspapers, approximately 300 different magazines, various comic books, many pocket books, and several racing forms. Approximately 40% of the physical space of the newsstand is devoted to the sale of newspapers, and 60% to magazines, comic books and pocket books. The newsstand is located on the northwest corner of 52nd and Chestnut Streets which has a sidewalk 14 feet 8 inches in width. The present newsstand occupies approximately 40% of the width of the sidewalk which is owned by plaintiffs, and over which the public has an easement of travel.
In 1953 plaintiffs commenced to remodel their 52nd Street store by leasing the adjoining premises next door and the premises to the rear, breaking down the adjacent walls between the three premises and creating a new single front store at a cost of $60,000, of which $15,000 was attributable to the new store front on 52nd Street. Manlin’s newsstand was directly in front of plaintiffs’ show or display window. Plaintiffs spend $5,000 annually for decorating and arranging displays in this window. Shortly after the window was built, plaintiffs demanded that defendant Manlin remove his newsstand. Manlin does not pay and never has paid any rent to anyone for the privilege of erecting or maintaining his newsstand which he expects to sell for several thousand dollars. This is a heavily traveled corner — in addition to the traveling and buying pedestrian traffic, there is a bus stop in front of plaintiffs’ property and 145 buses, as well as very many automobiles, pass by plaintiffs’ property during each day.
*323There is no controversy or dispute in this case as to the right of Manlin (or defendant Berman, who no longer operates the newsstand) to sell newspapers on this sidewalk. The real dispute involves Manlin’s right to maintain, ivithout the consent of the owner of the property and without compensation to the owner or to anyone, his aforesaid newsstand (a) which undoubtedly materially curtails throughout the entire day and evening plaintiffs’ rights to have the public and prospective customers, who ride or walk by and wish to window-shop, critically view and appraise (without impeding sidewalk traffic) merchandise in plaintiffs’ valuable display window and (b) which undoubtedly violates plaintiffs’ constitutionally guaranteed right of private property.
Newspapers have become an almost indispensable part of the life of a vast majority of the American people. The word “newsboys” (even though inaptly applied to present-day adults) has had for a hundred years such a friendly connotation, and newsstands for the sale of newspapers are such a convenience to the buying public during rush hours in a few corners or spots in Philadelphia (and in some other large cities)* that nearly everyone starts with a predilection in favor of newsboys and neivsstands. However, in interpreting the Constitution and the Law, Justice knows neither friend nor foe, rich nor poor, powerful nor powerless. *324The province and the duty of the Courts is to interpret and defend the Constitution- — not to disregard or rewrite it in accordance with our predilections or sympathies, or even with the popular wishes of the people.
To determine the issues involved we must examine (1) the rights of this property owner, (2) the rights of the so-called newsboy, (3) the Constitution, and (4) the decisions of the Supreme Court of the United States and of Pennsylvania which interpret, define, circumscribe and limit the words “Freedom of the Press”. Some of these questions overlap, so they may be considered together.
Plaintiffs Have Constitutionally Guaranteed Property Nights In This Sidewalk
One of the most important and fundamental rights ordained and guaranteed by the Constitution of Pennsylvania and by the Constitution of the United States is the inherent and indefeasible right to acquire, possess and protect property; property cannot be taken even for public use without the payment of just compensation: Article I, §1 and §10; Article XVI, §8 of the Constitution of Pennsylvania; Fifth and Fourteenth Amendments to the Constitution of the United States. It is indisputable that (in Pennsylvania) an owner of property abutting on a public street owns to the center of that street* including, of course, the sidewalk. The owner’s property rights therein and thereto are subject only to a public easement of passage, and a reasonable and valid exercise of the police power in the public interest.** In Westinghouse Electric Corp. *325v. United Electrical, Radio & Machine Workers, 353 Pa. 446, 46 A. 2d 16, the Court said (page 455) : “. . . ordinarily the title to property abutting on a public highway extends to the center of the highway, the sidewalk being for all intents and purposes a part of the owner’s premises subject only to the public’s easement of passage:* Duquesne Light Co. v. Duff, 251 Pa. 607, 97 A. 82; Scranton v. Peoples Coal Co., 256 Pa. 332, 335, 100 A. 818, 819; Breinig v. Allegheny County, 332 Pa. 474, 477, 478, 2 A. 2d 842, 845, 846; Hindin v. Samuel, Mayor, 158 Pa. Superior Ct. 539, 542, 45 A. 2d 370, 372.” See also to the same effect: Seibert v. Sebring, 55 Pa. Superior Ct. 475; Reighard v. Flinn, 189 Pa. 355, 42 A. 23.
When we draw back all the glittering tinsel with which this case has been draped, we discover that defendant Manlin and the news-publishers (amici curiae) contend that “public convenience” or “public necessity”, as well as Freedom of the Press, gives a squatter and a trespasser an exclusive monopolistic and permanent right to erect and maintain on the sidewalk of another man’s property — without consent or compensation — -a large permanent newsstand. We often forget that newspapers are privately owned, privately published, and are operated for private profit. Newsstands are likewise privately owned and are operated for private profit. They are a private convenience, not a public necessity, and in virtually every instance are permitted by the consent of the owner of the sidewalk.
“ ‘ “We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change”: Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 416’ ”: Lord Appeal, 368 Pa. 121, 130, 81 A. 2d 533.
*326Freedom Of The Press Is Not Absolute
The principal contention of Manlin and of all the news-publishers amici curiae is that a newsstand is protected by Freedom of the Press. The most highly prized freedoms in our Country are freedom of religion, freedom of speech, and freedom of the press.* These three freedoms plus “the inherent and indefeasible right ... of enjoying and defending life and liberty, of acquiring, possessing and protecting property . . .”; and “the right of free elections”** have been the hallmarks of free English-speaking peoples. These are the freedoms which have distinguished us from peoples living under Communism, Fascism or Totalitarianism. Moreover, the basic right to personally own, possess, use, and enjoy private property and the increments and fruits thereof is the main difference between Western (oft-called) democratic Society and Socialism.
The first amendment to the Constitution of the United States provides: “Congress shall make no law . . . abridging the freedom of speech or of the press . . . .” Article I, §7 of the Constitution of Pennsylvania provides: “The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof .... every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.”
It is an often overlooked truism that neither freedom of speech nor freedom of the press is absolute and *327unlimited: Poulos v. New Hampshire, 345 U. S. 395; Beauharnais v. Illinois, 343 U. S. 250; Garner v. Los Angeles Board, 341 U. S. 716; Dennis v. United States, 341 U. S. 494; American Communications Assn. v. Douds, 339 U. S. 382; Kovacs v. Cooper, 336 U. S. 77; United Public Workers of America v. Mitchell, 330 U. S. 75; Whitney v. California, 274 U. S. 357; Gitlow v. New York, 268 U. S. 652; Gilbert v. Minnesota, 254 U. S. 325; Schenck v. United States, 249 U. S. 47; Frohwerk v. United States, 249 U. S. 204; Debs v. United States, 249 U. S. 211; Abrams v. United States, 250 U. S. 616; Pierce v. United States, 252 U. S. 239; Schaefer v. United States, 251 U. S. 466; Fitzgerald v. Philadelphia, 376 Pa. 379, 102 A. 2d 887; Wortex Mills, Inc. v. Textile Workers Union, 369 Pa. 359, 363, 85 A. 2d 851; Commonwealth v. Geuss, 168 Pa. Superior Ct. 22, 76 A. 2d 500, 368 Pa. 290, 81 A. 2d 553; State of Ohio v. Clifford, 123 N.E. 2d 8; Mack Appeal, 386 Pa. 251, 262, 126 A. 2d 679. See also Rule 53 of the Federal Rules of Criminal Procedure, promulgated by the Supreme Court of the United States* which prohibits the taking of photographs in a Courtroom during the progress of judicial proceedings, and radio broadcasting of judicial proceedings from the Courtroom. See also Rule 223(b), Rules of Civil Procedure, which make it mandatory upon the trial Court to exclude from the Courtroom the taking of photographs or moving pictures, or the transmission of communications by telegraph or telephone or radio, during the trial of actions.
The publications and circulation, as well as a reasonably conducted sale on the streets and sidewalks of a municipality, of newspapers, leaflets, pamphlets and, I believe, in connection therewith, magazines are lawful — certainly the prohibition or attempted licensing *328thereof by a State or Municipality would be a violation of freedom of speech and of freedom of the press: Lovell v. City of Griffin, 303 U. S. 444; Hague v. C.I.O., 307 U. S. 496; Schneider v. Town of Irvington, 308 U. S. 147, 157; Cantwell v. Connecticut, 310 U. S. 296; Grosjean v. American Press Co., 297 U. S. 233, 245-50; Marsh v. Alabama, 326 U. S. 501; See also: Jamison v. Texas, 318 U. S. 413; Winters v. New York, 333 U. S. 507; Murdock v. Pennsylvania, 319 U. S. 105; Follett v. McCormick, 321 U. S. 573; Commonwealth v. Reid, 144 Pa. Superior Ct. 569, 20 A. 2d 841.
In Marsh v. Alabama, 326 U. S., supra, the Court said (pages 504-5) : “. . . Under our decision in Lovell v. Griffin, 303 U. S. 444 and others which have followed that case, neither a State nor a municipality can completely bar the distribution of literature containing religious or political ideas on its streets, sidewalks and public places, or make the right to distribute dependent on a flat license tax or permit to be issued by an official* who could deny it at will. We have also held that an ordinance completely prohibiting the dissemination of ideas on the city streets cannot be justified on the ground that the municipality holds legal title to them [in Texas]. Jamison v. Texas, 318 U. S. 413.”
In Jamison v. Texas, 318 U. S., supra, the Court said (page 416) : “. . . But one who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion. This right extends to the communication of ideas by handbills and literature as well as by the spoken word. Hague v. C.I.O., supra; Schneider v. Irvington, 308 U. S. 147, 162 . . . .
*329“. . . The right to distribute handbills concerning religious subjects on the streets may not be prohibited at all times, at all places, and under all circumstances. This has been beyond controversy since the decision in Lovell v. Griffin, 303 U. S. 444.”
In Lovell v. Griffin, 303 U. S., supra, the Court said (page 452) : “The ordinance [requiring a permit] cannot be saved because it relates to distribution and not to publication. ‘Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.’ Ex parte Jackson, 96 U. S. 727, 733. The license tax in Grosjean v. American Press Co., supra, was held invalid because of its direct tendency to restrict circulation.”
The decisions of the Supreme Court and of this Court may be thus summarized: Freedom of the press means the right to freely and fearlessly publish and criticize (on proper occasions), as well as circulate and sell news of public officials and private persons, of events, of thoughts and beliefs, as well as news of every description, but it is subject to the limitations set forth or delineated in the aforesaid authorities, and everyone is responsible for an abuse of this Freedom.
It is clear that a newsstand, even by Procrustean stretch, is not such a structure as is encompassed within and protected by the Constitutionally guaranteed area of Freedom of the Press.
Public Convenience
Defendant attempts to justify this huge newsstand on plaintiffs’ property on the basis of public convenience. Public convenience creates no legal right. Public convenience and public necessity, which are used interchangeably by defendant and the amici curiae, are neither actually nor legally synonymous. This is one of their many misconceptions. The majority does not fall into the same error. The City in a justifiable exer*330cise of the police power, erects or permits for the benefit of the general public, fire hydrants, fire and police boxes, mail boxes, utility poles, parking meters, wastepaper receptacles and traffic signals. These are obviously public necessities; they are for the benefit of the general public; they exist for the safety or health and benefit of the public; they are not monopolistic and exclusionary; and property owners do not and cannot object or complain. They are clearly distinguishable from a monopolistic and exclusionary newsstand which serves primarily the private interest of the owner of the newsstand and only incidentally the convenience of the public (at a few locations at rush hours), and as the majority admits, is certainly not a public necessity. Manlin and others overlook the crucial fact that when a news vendor asserts a right to maintain a permanent newsstand upon the sidewalk, he is not claiming or making public use of the sidewalk in common with all other members of the public, but he is claiming an absolute and exclusionary right to appropriate a particular segment of the sidewalk for his own private and exclusive use and profit. The newspaper public can be adequately served by buying at nearby stores, hotels, stations, etc., and by several newsboys selling on or near any busy street corner (or any other location), instead of by an exclusionary monopolistic “grab” of one or more busy corners by one owner of one or a number of newsstands, or by a municipal grant to one or a few newsboys to erect and maintain a newsstand on the property of a private citizen in violation (1) of the Constitutional rights of the property owner, and (2) of the rights of every other Philadelphia newsboy.*
*331Defendants contend that if a newsstand were not allowed, a number of competing newsboys would sell newspapers on or near certain rush-hour street corners on week days (newsboys are almost non-existent on Sundays) and they would “impede the free flow of travel upon the public sidewalks”. Since when has competition become anathema in America? Haven’t any other newsboys except the owner of a trespassing newsstand any right to sell newspapers upon the public sidewalks, or is that corner and all the neighboring public sidewalk reserved solely for the owner (or in this case the absentee owner) of a newsstand? Nearly everyone who has passed newsboys at rush hours, or outside a football stadium just before a football game, even when they sell a few yards apart, knows that they do not interfere with the hundreds or thousands of rushing home-goers or sport fans* — certainly they do not block the free flow of travel upon the public sidewalk as much as does defendants’ huge newsstand. The language of the Superior Court in Hindin v. Samuel, Mayor, 158 Pa. Superior Ct., supra, is particularly appropriate (page 542) : “In Pennsylvania it is well established that the title to property abutting on a public street extends to the center of that street. Scranton v. Peoples Coal Co., 256 Pa. 332, 100 A. 818. The public acquires an easement in the highway; the fee of the land remaining in the owner subject to the easement and the land may be used by the owner for any purpose not inconsistent with the easement acquired by the public. Duquesne Light Co. v. Duff, 251 Pa. 607, 97 A. 82. No person, corporation or individual has the right to make a special or exceptional use of the public highway not common to all citizens except by grant *332from the sovereign power. Owl Protective Co. v. Public Service Commission, 123 Pa. Superior Ct. 382, 187 A. 229; Philadelphia Co. v. Freeport Borough, 167 Pa. 279, 31 A. 571.”
No Custom
I agree with the majority that what defendant describes as a 100 year old Philadelphia custom of having newsstands “is not enough to warrant such continuance”. Defendant never attempted to prove any custom, let alone a “legal custom”.* The reason is obvious — defendant would have had to establish the length, width, height, size and location of the “eustomed” newsstands, and most important of all, that they existed and were maintained without the consent of the owner of the property and without any rent or compensation to the owner.
Discrimination Between Local And Out-Of-Town Newspapers Is Unconstitutional
The Decree of the lower Court which permitted the sale on public sidewalks in Philadelphia “of daily Philadelphia newspapers” and prohibited the sale of “out-of-town newspapers, magazines . . . and other types of printed matter”, was undoubtedly discriminatory and invalid, and violated the First and Fourteenth Amendments to the Constitution of the United States and Article I, §7 of the Constitution of Pennsylvania.
The City’s Ordinance
I also agree with the majority that this newsstand is not authorized by the City’s Ordinance.
*333Defendant Manlin contends that the Code of General Ordinances of the City of Philadelphia (effective February 29, 1956) constitutes a permission or license to erect and maintain a huge newsstand on this sidewalk. The Code prohibits from the sidewalks all goods, wares and merchandise in certain designated areas of Philadelphia, but (in §9-205) exempts from its application “the display, offering for sale and sale of books, magazines and newspapers, and the placing and maintenance of stands for such articles”. Plaintiffs contend on the other hand, inter alia, (a) that the City must not only grant permission for but must specifically regulate newsstands in order to validate this newsstand; and (b) that the exemption of newsstands from the City’s ordinance is not such an affirmative grant and regulation as to legally authorize the erection of this large permanent newsstand on plaintiffs’ sidewalk. However, I am convinced that the majority has overlooked the two most important rights which are here in issue — (1) the Constitutionally guaranteed right of the owner of the property (the sidewalk) ; and (2) the easement of public passage over City sidewalks, which can be reasonably regulated by City Council only for the public and not for a private interest.
To summarize: The property owner has a fee simple interest in the land and its sidewalk; the public have a public easement of (pedestrian) passage over the sidewalk, which is an interest in land (generally) known as an incorporeal hereditament. Each in its own sphere or interest is supreme, and neither has a legal right to encroach upon or destroy the other’s interest. For example, a property owner cannot permit or lease a newsstand on his own sidewalk if a newsstand is prohibited by the City in the interest of the traveling public. Sidewalks are subject to the police power and to reasonable municipal regulations, but when these regulations govern the public easement of *334traffic they must be primarily for the benefit of the public and not for the benefit of a particular private individual who conducts (without rent to anyone) a private enterprise for his own benefit. This easement of passage cannot be diverted to another purpose or enlarged* by the public or by the municipality to impinge upon or to violate, without the owner’s consent or without paying compensation therefor, a property owner’s Constitutionally guaranteed right of property. Furthermore, the City cannot, under the guise of public interest, give an exclusive monopolistic private right to one so-called newsboy and exclude all other newsboys and members of the public who may desire to own or operate a newsstand on this or adjoining properties.**
Plaintiffs further contend that this large newsstand amounts to a nuisance to their very large display win*335dow. The lower Court found that it was not a nuisance, although it unquestionably partially blocks the view of prospective buyers who ride by this populous corner in automobiles and buses, and to some extent interferes with prospective shoppers who wish to window shop. The finding of the lower Court that the newsstand did not amount to a nuisance was not a finding of fact, as Manlin contends, but an inference or conclusion. This Court is equally qualified to draw inferences and make conclusions from the actual facts, and to determine whether this huge newsstand, which partially blocks plaintiffs’ display window day and night, constitutes a nuisance: Eways v. Reading Parking Authority, 385 Pa. 592, 124 A. 2d 92, and cases cited therein. I would hold that under all the facts present in this record, it amounts to a nuisance.
I find no merit in any of Manlin’s contentions and I would reverse the Decree of the lower Court and enter an injunction to restrain the maintenance and operation of Manlin’s newsstand.
Defendant Berman no longer sells for Manlin and the record does not disclose who does.
In most of Pennsylvania so-called newsboys are non-existent, and even in large cities they usually appear only at a relatively few spots and even there, usually only at rush hours. There is never any difficulty in buying newspapers, magazines and books in stores, stations, hotels and elsewhere. It is conceded by everyone that in other municipalities in Pennsylvania newsstands do not exist, and there has been no complaint that dissemination of information has been hampered thereby; or that newspapers are not and cannot be sold on the sidewalks of a large city without a newsstand.
In tbe absence of a specific vesting of a fee in tbe City by grant, purchase or condemnation.
A City, unlike a suburban governmental unit, bas tbe right to use tbe streets below tbe surface for sewers, gas and water pipes for health and other sanitary reasons: McDevitt v. Gas Co., 160 Pa. 367, 28 A. 948; Provost v. Water Co., 162 Pa. 275, 29 A. 914.
Italics throughout, ours.
A history of Freedom of the Press, its slow rise for several centuries until it attained its present gigantic stature, is briefly traced in my Opinion in Mack Appeal, 386 Pa. 251 (page 261), 126 A. 2d 679.
The right to free and equal elections is seemingly of less importance, judging from the percentage of people who, although exhorted to vote, do not avail themselves of the fundamental right which peoples of other countries lack, but long for.
Title 18, U.S.C.A., page 598.
In its discussion of ordinances, I believe tbe majority bave overlooked tbis language and its significance, as well as tbe rulings in tbe Lovell and Grosjean cases, supra.
If a newspaper and a so-called newsboy wisb to mate an exclusive agreement inter se for the sale of a newspaper, tbat may be valid inter se but it cannot affect or violate the rights of the public nor the Constitutional rights of an owner of property. That question is not involved in this case.
Moreover, they readily sell to 10,000-70,000 people (outside a stadium) newspapers without a newsstand. We note parenthetically that the fine bulky Sunday newspapers are rarely sold in Philadelphia by newsboys.
3 Tiffany, Real Property, 3rd Edition, §935, Customary Rights. Cf. also: Lancaster Transportation Company v. New York & N.B.A. Empress Co., 187 Pa. Superior Ct. 621, 623, 146 A. 2d 150; Adams v. Pittsburg Insurance Co., 76 Pa. 411, 414.
In Restatement of tlie Law of Property, Tbe American Law Institute thus states the law: “b. Nonpossessory interest. An easement is an interest in land in the possession of another. It is not, Itself, a possessory interest. The owner of it, therefore, is not entitled to the protection which is given to those having possessory interests. The fact that the owner of an easement is not deemed to have a possessory interest in the land with respect to which it exists indicates a lesser degree of control of the land than is normally had by persons who do have possessory interests. Thus, a person who has a way over land has only such control of the land as is necessary to enable him to use his way and has no such control as to enable him to exclude others from making- any use of the land which does not interfere with his.”
Concern has been expressed over what may happen to small newsstands which are sometimes located on the pave22ient outside a central office building or station or store in the commercial part of a large City. In this very case plaintiffs offered to let defendant erect a reasonable newsstand on the Chestnut Street side of their store, where there is no display window. So far as the record shows or our research has disclosed, no complaint has ever been made about a small newsstand on a sidewalk, but if it were, Constitutional rights would have to prevail.