Appeal, No. 314, Jan. T., 1896, by plaintiff, from decree of C. P. Luzerne County, March Term, 1896, No. 4, dismissing bill in equity.

Bill in equity, by a citizen and taxpayer of Luzerne county in behalf of himself and such other taxpayers as may join to restrain the county commissioners from using or occupying any part of the public square in the city of Wilkes-Barre for the erection of a courthouse, and particularly any part so occupied at the present time.

All the facts necessary to an understanding of the case appear by the opinion of Searle, P. J., of the 34th judicial district, specially presiding, which was as follows :

The bill filed prays an injunction may be issued to enjoin the county commissioners from using or occupying any part of the public square in the city of Wilkes-Barre for the purpose of erecting thereon a courthouse and particularly from using any part of said square not so occupied at the present time.

The respondents have filed an answer which admits all the facts set forth in the bill, but denies the conclusions of law attempted to be drawn, and avers a right to use and occupy said public square for a new courthouse, also averring that the increased business of the county requires increased accommodation by a building winch will occupy double or more than double the surface of the public square now taken by the present building.

The case was heard upon the bill and answer.

The averments of fact in bill and answer are all admitted to be true, and there is no necessity of incorporating these facts in this opinion.

The learned solicitor for the complainant claimed:

1. That the act of the commissioners appointed to put in execution the act of 1799 in issuing a certificate to a committee of Wilkes-Barre township for a plot of ground designated “ Centre Square ” was without authority, as they only had authority to issue certificates to actual settlers, and this was issued to a township committee for the purpose of a public square.

2. That the appropriation of this square for the purpose of erecting the first courthouse in 1791, and the second in 1804, was without authority of law.

8. That the only authority of law given to appropriate any portion of this square for a courthouse was given by act of May 5, 1855, P. L. 443, and its supplements April 2, 1856, P. L. 225.

4. That the power of appropriation was executed and exhausted by the erection of the present courthouse, and the county commissioners have now no authority to appropriate any additional portion of said square in erecting a new courthouse.

The learned solicitor for the respondents claims that the county commissioners have the right to build such a courthouse as they intend upon said square because:

1. The county has exercised such a right for upwards of one hundred years, and it is now too late for any one to question it.

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