269 F. 472 | D.C. Cir. | 1920
This is an appeal from a decree in the Supreme Court of the District, dismissing appellants’ bill for a mandatory injunction requiring the removal of so much of appellees’ building as encroaches, upon appellants’ premises, known as No. 905 Massachusetts Avenue Northwest, in this city, and “for such other and further relief as to the court may seem proper and the exigencies of the case may require.”
Prior to 1873, Marion F. Thompson was the owner of land in this city, which, by subdivision in 1879, became in part lots 11, 12, and 13, in square 370. In 1882 Marion F. Thompson conveyed lot 13 to Fran
Lots 11, 12, and 13 form the northwestern corner at Massachusetts avenue and Ninth Street Northwest; the three lots running back to an alley and lot 13 being west of lot 12. Prior to the erection of appellants’ dwelling house in 1883, and before there was any building upon the southern or front part of lot 12, there were two old buildings extending north and south on the rear portion of lot 12—the northerly building being 30 feet long and reaching almost to the alley; the other building being a little more than 20 feet long. Connecting the westerly walls of these two old buildings was a permanent fence. The uncontradicted and convincing evidence is to the effect that, since the erection of appellants’ dwelling house on lot 13 in 1883, the owners of that lot have had open, actual, and exclusive possession of the land up to the walls of the two old buildings and the fence connecting them, and thence to a line running in a southerly direction to the northeast corner of the dwelling house. In the rear of lot 13, and along its easterly side, was a brick walk extending to the alley. After appellees had acquired title to lots 11 and 12, lot 12 was surveyed, and the westerly line found to encroach to some extent upon the land that had been in the possession of appellant Catherin E. Brumbaugh and her predecessors in title since 1883, including, of course, a part of the brick walk.
In July of 1915, after appellees had arranged for the purchase of lots 11 and 12, plans were prepared for the erection of a seven-story fireproof structure on those lots. These plans were seen by the appellant Dr. Brumbaugh, who acted for his wife throughout, and he made certain suggestions looking to the safeguarding of his wife’s interests, but nothing was said at that time as to any claim by adverse possession. In the early part of November following, when the excavation for the foundation of the new building had reached the rear portion of lot 12, appellants discovered that the excavation extended west of the line of the old buildings and fence already mentioned, and thus encroached to some extent upon the land claimed by the appellants. Thereupon the superintendent of construction was notified that “he must stay on the far side of the dividing line, which had been held since 1883.” That this line then was pointed out to the superintendent there can be no doubt. Appellants say the work then was discontinued for several weeks, but the superintendent testifies that in about a week he received orders from his superiors to proceed, and that work then was resumed immediately. We incline to the view that the recollection of the superintendent is correct on this point. A week after the notice had been given the superintendent, appellants wrote the following letter to the architects:
*474 “In consideration of your assurances in our recent conversation at your office, and especially that the building of the A. F. of E. will not cut into or encroach upon the east wall of our residence—that wall and the retaining wall in the rear line of the property having stood intact since 1870; since before 1877 (more than 30 years)—and the further fact that your wall in the rear portion of the lot will be kept away from the line dividing the properties, we have decided to permit the dividing rear wall to be taken down (proper temporary protection to be put up to prevent accident on our side). In this connection it should be borne in mind that this fence has retained a legal right to a little more distance than the D. C. surveyor would seem to give us in his line through the said wall (by reason of adverse possession over 38 years). Every inch of ground in the rear is of importance to us in the way of light and air. The contractor has said that he will take off a foot from the east end of our rear shed, to permit egress and ingress from the alley, and promptly restore everything to its proper condition on our property. The air shaft and dead walls opposite our house are to be whitened, and the chimneys carried up to protect bur draft.”
Appellants, of course, noted the progress of the work on the new building and testified that they “protested constantly to those connected with the work”; but no written protest was made until March 9, 1916, when the building had progressed to the second or third story. On that date appellees were notified of appellants’ claim, and asked “whether these matters can be adjusted amicably, or whether it will be necessary to look to legal protection of our legal rights, which seem to have been wholly overlooked through disregarding ‘adverse possession,’ ” as above noted. On March 20th appellants, in a further communication, suggested that the matter be submitted to arbitration; but, appellees making no.response, the present bill was filed April 11th following.
The court below, being of opinion that “a case for equitable relief had not been made out” and “that adverse possession had not been shown,” dismissed the bill. ■
The decree must be reversed with costs, and the cause remanded for further proceedings in conformity with this opinion.
Reversed and remanded.