79 Pa. Super. 91 | Pa. Super. Ct. | 1922
Opinion by
The plaintiffs filed a bill in equity alleging that there had for over thirty years existed an alley, or right-of-way, along the line between their lot and that of the defendant, partly upon land of each, and used in common by the owners and occupiers of the respective lots. They complain that the defendant had recently moved a garage on to the alley and was also obstructing the alley with lumber, ashes and other material. They prayed for a preliminary injunction' against further encroachment and obstruction, a final decree for removal and restoration, and for damages. Upon the filing of the bill, the court below granted a preliminary injunction against further encroachment and obstruction. The defendant, on May 15,1916, moved to dissolve the injunction, which motion was dismissed. He filed his answer on the 16th
The jurisdiction of the court, in equity, to compel by injunction the removal of obstructions in the alley, partly located upon defendant’s land, where the existence of the right of plaintiffs to use the alley is denied in the answer and disputed by evidence, is challenged by numerous assignments of error. Equity undoubtedly has jurisdicdiction to restrain the obstruction of a right-of-way, or other continuous trespass, where the facts are undisputed. When the facts are disputed and the exercise of the right involves a deprivation of property of the ' defendant or the imposition of an encumbrance thereon, the defendant has a right to trial by jury. In the latter case the plaintiff should first establish his right in an action at law, and then come into equity, if necessary, for the protection of the legally established right. The bill, in the present case, prayed for a decree that a permanent obstruction be removed, but it also prayed for an injunction against further encroachments, which seemed to be threatened. The proper practice, in such a case, formerly was, where the affidavits disclosed a prima facie right in the plaintiff, for the court to interfere by special injunction, stay the defendant’s hand,
The defendant, in the fifteenth paragraph of his answer averred, “that the suit should have been brought at law and prays the court to award an issue to try questions of fact, said issue to be decided in limine as provided by the Act of June 7,1907, P. L. 440.” This was an express election to have the court award an issue to try the disputed questions of fact; an exercise of the right given to the defendant by the Act of 1907. The defendant is not now in position to complain that the court took him at his word, and certified to the law side of the court an issue, to be submitted to a jury, embodying the identical question which would have arisen on the trial of an action of trespass for interference with the easement. The burden of proof was on the plaintiffs, and the defendant was deprived of no right or advantage that he would have had in the trial of an action of trespass: Smith & Fleek’s Appeal, supra. If we were to reverse this decree, upon the ground that the court below should have certified the proceeding to the law side, all that we could do would be “remit the cause to the court below, with direction to transfer it to the law side of that court, all costs in the causé to abide the final determination thereof in the court of law,” the effect of which would be to give this defendant another jury trial, upon the identical questions which have already been found by one jury adversely to his contention. The language of the Act of 1907 is not capable of a construction indicating a legis
It is alleged that the court committed errors in its rulings in the trial of the issue, several of the assignments on this branch of the case referring to the rulings of the court as to the effect upon the rights of these parties of the fact that a predecessor in title of the plaintiffs was asserted to have had at one time an interest in both of the properties involved. Other assignments of error refer to the conclusions of the chancellor as to the law applicable when the dominant and servient tenements have at one time been in the ownership and possession of the same person. The question thus raised renders necessary a brief recital of the facts. The evidence would have warranted a finding that this alley had been in existence and used by the occupiers of the lot of the plaintiffs and that of defendant since the year 1860. N. S. Drum acquired title to plaintiffs’ lot in 1869. Philip Hess, who owned the lot of the defendant, died September 22, 1879, and the lot descended to his seven children, one of whom was Elizabeth, the wife of N. S. Drum. The evidence established that the alley continued to be used by the occupants of the lot during the time that N. S. Drum owned the lot of the plaintiffs, and Elizabeth, his wife, was the owner of an undivided interest in the lot of the defendant. On February 25, 1887, Elizabeth Drum and certain other heirs of Philip Hess conveyed to Mary A. Drum, who was also an heir of Philip Hess, the lot of the defendant, no mention of the alley being contained in that deed, and N. S. Drum, the husband of Elizabeth, joined in that conveyance. Mary A. Drum conveyed the lot to the defendant in 1907. N, S. Drum subsequently died and his will devised to the plaintiffs the lot to which they now assert a right of way over the alley as an appurtenance. The evidence
The decree is affirmed at the cost of the appellant.