enforce payment shall be had as in other similar cases: Provided, That either party shall have the right to have reviewers appointed by said court.69

Compensation of viewers.

888. Each viewer shall receive three dollars per day for each day necessarily employed in said view or review.70 Appeal from report of viewers.

889. Each party shall have the right to appeal from the report of said viewers or reviewers to the court of common pleas, within thirty days after the filing of such report, and the same shall be tried by a jury as in similar cases." Costs. By whom paid.

890. The cost of the first view shall be paid by the party condemning the property; the cost of the review or appeal shall be paid by the party losing the controversy.72 Eminent domain. Extension of corporate privileges.

891. This is a proceeding under the act of July 10, 1901, P. L. 632, authorizing the condemnation of real estate needed for the use of state normal schools. The prayer of the petition is that the title to the real estate within the boundaries set forth be declared to be in the petitioner freed from any easement or right of way over the premises on account of the location of streets and alleys thereon.

In 1873 L. W. Morgan laid out an addition to the town of California outside of the borough limits. The land included in the plan was divided into thirty-six lots with streets and alleys connected therewith. A copy of the plan of lots was recorded in the office of the recorder of deeds of the county. The petitioner purchased a block of twelve of these lots prior to July, 1901. The other lots were sold to different persons. The plan of lots attached to the petition shows that a street fifty feet wide extends from the Monongahela River through the middle of the whole block of lots and connects with a public road. The Monongahela River

69. Act July 10, 1901, Sec. 2, P. L. 632.

Consolidated Coal and Coke Company owns the six lots nearest to the Monongahela River and C. W. Yarnell owns three lots near the middle of the block, all of which lots front on the street referred to. The coal and coke company has a coal tipple, a coal siding, several houses and other improvements on its lots adjoining the river and the only outlet it has to any public road is over this street. Access is also had to the Yarnell lots by the same means. The township authorities never formally accepted the street, but it was used by the owners of the lots abutting thereon and by the public as a highway for more than twenty-one years prior to the passage of the act of 1901. The petitioner is the owner by purchase of lots Nos. 10 to 15 fronting on one side and Nos. 28 to 33 fronting on the other side of this street. The object of the present proceeding is to close that part of the street and the alleys connected therewith on which these lots front in order that the petitioner may have exclusive possession of the street to be used in connection with the grounds occupied as a campus.

It is not claimed that prior to the act of 1901 a normal school had the right of condemnation now set up. That act provides that when the board of trustees of any state normal school deems it necessary "to enlarge the area of the real estate upon which the buildings of such normal school are erected" and cannot agree with "the owner or owners of land they wish to acquire as to its purchase or occupancy," they may enter upon and occupy sufficient ground for the purpose which they shall mark off not exceeding two acres." The second section of the act provides for the appointment of viewers who, after having viewed the ground "shall estimate and determine the quantity and value of the said land so taken to be used for the purposes aforesaid."

If we concede that the act is a valid investiture of state normal schools with power to condemn real estate, without an express limitation of the land so condemned to public use, such legislation being in derogation of private rights should be strictly construed. "No lax construction of the grants to corporations is required against public in

terest and individual rights :" Cake vs. Philadelphia and Erie Railroad Co., 87 Pa. 307. Acts extending corporate privileges are to be construed most strongly against the company setting them up and whatever is not unequivocally granted must be taken to be withheld: Pennsylvania Railroad Company's Appeal, 93 Pa. 150; Groff's Appeal, 128 Pa. 621. The power must be given in plain words or by necessary implication. All powers not given in this direct and unmistakable manner are withheld: Com. vs. E. & N. E. R. R. Co., 27 Pa. 351.

Does then the act of 1901 authorize the proceeding now sought to be enforced? An inspection of the statute makes it very clear that in legislative contemplation the "ground" or "land" to be taken was other than the land of the petitioner, and that the subject of condemnation was "ground" or "land." A method was thereby established for securing a limited enlargement of the "area of the real estate upon which the buildings of the said normal school are erected." A bond is required to be approved by the court of common pleas of the county "in which such lands are situated ;" and the viewers are to determine "the quantity and value of the said land so taken."

In the case under consideration the petitioner is already the owner of the land upon which the highway is located and seeks by this proceeding not to condemn the land of another owner but a public right of way over its own land. That a right of way may be appropriated is undoubtedly true, but our attention has not been called to any case in which a right of way has been taken except in connection. with the land over which the right of way exists.

We agree, therefore, with the conclusion of the learned judge of the court below that the act of 1901 does not authorize the act sought to be accomplished in this case.

There is another objection to the proceeding, however, which we regard as insuperable. The attempt is to appropriate a public street without any apparent necessity so to do. It was held in Heckerman vs. Hummel, 19 Pa. 64, that the dedication of streets and alleys in laying out a plan for a town is a contract with the public, and in Quicksall

vs. Philadelphia, 177 Pa. 301, that the sale of lots according to a plan which shows them to be on a street implies a grant or conveyance to the purchaser that the street shall be forever open to the public, and operates as a dedication of it to public use. The right to the purchaser is not the mere right that he may use the street, but that all persons may use it. Where one conveys lots according to a plan which shows them to be on streets, he must be held to have stamped. on them the character of public streets: In re Opening of Pearl Street, 111 Pa. 565. The same doctrine was reasserted in Woodward vs. Pittsburg, 194 Pa. 193.

The 66 easement" which the petitioner seeks to condemn is a public street, made so not only by the dedication of the owner of the land who established the plot and sold lots in accordance therewith, but also by continuous use by the public for more than twenty-one years. That franchises are subject to eminent domain has been determined in numerous cases, but it is as certainly declared that they cannot be taken without authority clearly expressed or by necessary implication. It was held in Pittsburg Junction R. R. Co.'s Appeal, 122 Pa. 511, that while a franchise is property, and as such may be taken by a corporation having the right of eminent domain, yet in favor of such right there can be no implication unless it arises from a necessity so absolute that without it the grant itself would be terminated. It must also be a necessity that arises from the very nature of things over which the corporation has no control. It must not be a necessity created by the company itself for its own needs or for the sake of economy To the same effect is Groff's Appeal, supra; Cake vs. P. & E. R. R. Co., supra; Stormfeltz vs. Manor Turnpike Co., 13 Pa. 555.

In the case of a street or highway, however, something more than necessity is required to authorize an appropriation. A public street is a public franchise, and is not such property as a corporation may take for its own use under the general power of eminent domain. It is a franchise which cannot be violated except by express legislative authority Pa. R. R. Co.'s Appeal, supra. No direct legislative grant authorizes the appellant to appropriate the

street, nor, if the subject were a private franchise, has any absolute necessity for its condemnation been disclosed.

We are therefore of the opinion that the authority asserted does not exist, and that the conclusion of the learned judge of the court was correct.73

Officers of institutions receiving state aid shall not sell or furnish supplies. Misdemeanor. Fine and penalty.

892. No officer or member of the board of managers of an institution, at a time when said institution is receiving state moneys from legislative appropriations, to furnish supplies to such institution, either by direct sale or sale through an agent or firm, or to act as an agent for another in so furnishing supplies. Any person who may violate any of the provisions of this act shall be guilty of a misdemeanor, and upon conviction therefor shall be punished by a fine not exceeding five hundred dollars, or by imprisonment not exceeding one year, or both fine and imprisonment at the discretion of the court.74

Manager or trustee of an institution receiving state aid forbidden to sell or furnish supplies to students.

893. Attorney General Carson said :

"I have considered your request for an opinion upon the following facts:

"You state that there is connected with the state normal school at Millersville a store, for which a license is paid to the county. In this store, in addition to books, a number of articles are kept to sell to students and others. Among the miscellaneous articles are school pins, alumni badges, and literary society pins. These pins and badges are sold to students and others at a small profit, they having been purchased from a jeweler who is one of your trustees.

"You ask whether the Act of April 23, 1903, P. L. 285, prohibits him from selling these articles to the stores in the future; and you state that it occurs to you that gold and silver pins cannot properly be classed as school supplies, and you are anxious to make no mistake in the

matter.

73. South Western State Normal School, 26 Pa. Superior Ct. 99, 1904. 74. Act April 23, 1903, P. L. 285.