32 Ind. App. 471 | Ind. Ct. App. | 1903
Judgment was recovered against the appellant at the suit of Euel M. Johnson, who died after judgment, and the appeal is prosecuted against his executors;
The averments of the complaint, which illustrate the legal question involved, showed that on and before July 16, 1890, each of the parties owned a portion of a certain lot, fronting west, on Main street, in the city of Elkhart; the plaintiff’s portion adjoining and south of the appellant’s portion. Before that date 'the appellant had begun the erection of a three-story brick building on his part of the lot, fronting on that street, and extending east therefrom 100 feet. He had laid the foundation of his south wall, and had, in part, constructed that wall, adjoining the north line of the plaintiff’s ground. The appellant proposed to the plaintiff that the latter should purchase of the former a strip of ground six inches in width, north and south, of the south side of appellant’s ground, and that the wall so begun and partly built should be a party wall, one-half of the cost of the erection thereof to be paid by each of the parties; that the plaintiff should thereupon erect a three-story brick building on his ground, using the party wall as his north wall. And as a further inducement to the plaintiff to purchase the strip of ground, and to pay one-half the cost of the party wall, the appellant proposed that the entrance to the second and third stories of their respective buildings should be by a common stairway, resting on the appellant’s real estate, and located on his side of the party wall; the entrance to plaintiff’s second story to be by a door through the party wall, and leading from the landing on the second floor of appellant’s building into the second story of plaintiff’s building. The plaintiff accepted the appellant’s proposition, and the parties agreed accordingly. Pursuant to this agreement, the appellant, at the date above mentioned, by his warranty deed, conveyed the strip of ground to the plaintiff for $J5; the deed containing the follewing: “It is hereby agreed to between the
The agreement under which the owners of the adjoining lots proceeded was an oral contract, which was fully executed by both parties; the appellant conveying to the plaintiff, for a certain sum, the strip of ground on which one-half of the party wall rested, and each party erecting a tliree-story brick building; the party wall being constructed at their joint expense; the stairway upon the appellant’s real estate being also constructed and repaired at their joint expense; the door to which it led being made and used according to the agreement, and the plaintiff’s building being constructed without other means of access to the upper stories. That there was a valuable consideration for the promise of the appellant to permit the use of the stairway upon his premises and the passage therefrom through the party wall, is manifest. When the parties had thus acted upon the agreement, the plaintiff was thereby placed in a situation with reference to the use of his real estate such that to be deprived'of the means of. access to a part thereof did not merely give him a cause of action at law for damages as for trespass or private nuisance, but it entitled him to relief in equity. The license to make such use of the appellant’s real estate having been so acted upon, was irrevocable; and the appellant was estopped to question the continued use, and liable in damages for obstruction of the passageway. The injury was of such character that an action at law would not furnish a full and adequate remedy, and the ease was one for which a mandatory injunction, as prayed for, was a part of the proper relief. This was necessary to place the parties in statu quo, and in order to prevent the conduct of the appel
Concerning’ this doctrine that equity will interfere to prevent irrevocable injury through the revocation of such an executed license, the courts have not been in accord; but it is well established in this State, and appears to be growing in other states. See Brauns v. Glesige, 130 Ind. 167; Joseph v. Wild, 146 Ind. 249; Noble v. Sherman, 151 Ind. 573; Roush v. Roush, 154 Ind. 562; Shroyer v. Campbell, 31 Ind. App. 83; Jones, Easements, §§77, 78; Washburn, Easements (4th ed.), 26 et seq.; Tiedeman, Real Property, §653; 1 Washburn, Real Property (5th ed.), 661 et seq.; Pomeroy, Eq. Jurisp., §1346 et seq.
It is claimed, in opposition to the court’s action in overruling the motion for a new trial, that the second paragraph of answer was sustained by proof of a settlement and compromise of the matters upon which the complaint was based, prior to the closing of the doorway. There was evidence that after complaints had been made by the appellant to the plaintiff because some of the tenants of the upper rooms of the plaintiff’s building were lewd women, who, with their male associates, used the stairway and hallway, the appellant served upon the plaintiff a written notice that the appellant would proceed at a date stated— about one month thereafter — to brick up the entrance from the hallway to the plaintiff’s upper stories, and would then cease to suffer the stairway and hallway to be used by any of the plaintiff’s tenants or by the plaintiff; and there was evidence that the plaintiff then promised the appellant to construct a stairway in the plaintiff’s building, and to cease to use the appellant’s .stairway, if the latter would give time therefor, to which the appellant assented. The doorway was not closed by the appellant until about one year after this notice and conversation of the parties. There was not in the pleadings any statement of a' sideration for such a promise on the part of the plaintiff,
A third paragraph of answer alleged the use of the upper stories of the plaintiff’s building for immoral purposes by female tenants of bad character and their male followers, but did not show that in the contract under which the parties constructed their buildings there was any condition or agreement relating to such use of the promises. It is claimed the evidence showed such use of the upper portion of the plaintiff’s building. If it be true that the plaintiff permitted or failed to suppress such a nuisance, the appellant had an adequate remedy therefor at law, and such wrong did not give him a right to deprive' the plaintiff himself and all other tenants to whom he might desire to let his premises from access thereto by permanently obstructing the only means of access.
Judgment affirmed.