212 Pa. 32 | Pa. | 1905
Opinion by
This bill was filed to restrain the defendants from maintaining a fire escape over and across an alley in the rear of the' plaintiff’s premises. The facts which we deem material and were found by the trial judge and not excepted to are the following:
1. The plaintiffs are the owners of a leasehold estate for 999 years in the lot of ground No. 246 N. Franklin street, Philadelphia, containing in front on Franklin street twenty feet and extending of that width westward between parallel lines at right angles with Franklin street one hundred and twenty-two feet eight inches to a three feet four inches wide alley leading northward into Vine street, together with the free and uninterrupted use, right and privilege of the said alley as and for a passageway and water course in common with the owners and occupiers of the other ground abutting thereon.
2. The defendant, John F. Betz, is the owner of No. 248 N. Franklin street, adjoining the plaintiff’s lot, with the same right as the plaintiffs to the use of the alley.
3. The defendant, John F. Betz, is the owner, and the defendant, John G. Jermon, is the lessee of a lot of ground with
4. The defendants have erected on the east wall of the theater a fire escape consisting of two balconies constructed of iron slats, which overhang the alley opposite the rear of lots Nos. 246 and 248 N. Franklin street, and have also constructed a permanent stairway from the lower balcony over No. 248 N. Franklin street, which is owned by the defendant, John F. Betz ; the rear fence of this property has been moved forward, and the open space abutting on the alley is utilized for the foot of the stairway. The lower balcony is about sixteen feet above the pavement of the alley.
5. The titles of the plaintiffs and defendants came originally from a corporation, the common grantor. The corporation first conveyed the theater property, now owned by defendant Betz, and in the description of the lot in the deed no alley is mentioned, and the lot is described as bounded eastward by other ground of the parties of the first part. At the date of this conveyance the alley had not been dedicated as a passage and no privilege of the alley is granted nor is it referred to in the conveyance. In the subsequent deeds in the line of title down to the defendant Betz, the alley is not described as a boundary nor is any privilege of the alley granted. The plaintiff’s lot was conveyed, “ together with the free use, right, liberty and privilege of the said three feet four inches wide 'alley as and for a passageway and water course in common with the parties of the first part hereto, their successors and assigns, owners and occupiers of the other ground bounding thereon, and the laying and repairing therein pipes of conduit, for the purpose of introducing Schuylkill and other water from the said Vine street into the thereby granted premises, or any part thereof.”
In addition to the above, the learned trial judge found that the plaintiffs have not been obstructed in their right to the use of the alley as a passageway and water course, that the fire
We think that on the uncontroverted facts in this case it was clear error to refuse the relief prayed for in the bill. It is manifest from the cases he cites that the learned trial judge was led into error by a misapprehension of the facts of this case. The' authorities he cites have no application here. In both cases, the owner of the fee had granted a right of way over the premises, retaining the ownership of the soil, and it was held that the grantee could not enjoin him from building over the alley if it did not interfere with the use of the way. But those are not the facts in this case. The parties to this suit hold under a common grantor who first conveyed the theater property by metes and bounds before the dedication of the alley in question and with no reference to an alley or to a right of way over an alley. The eastern boundary of the property is described in all the deeds of the defendants’ chain of title as “ ground now or late of,’-’ etc. Hence it is clear that the defendants, as the owners of the theater premises, have neither ownership nor easement in the soil of the alley and, therefore, have no right to utilize or obstruct the alley for any purpose.
The defendant Betz is the owner of the lot at No. 248 N. Franklin street, which adjoins the plaintiff’s lot and at the rear abuts on the alley with the' same rights over it as the plaintiffs have. Prior to the sale of any of the lots abutting on the alley, it was dedicated as a passageway by the owner of all the ground to the use of the lots on the eastern side of the
We infer from the language used in the opinion that the learned trial judge thought the right of the plaintiffs to the relief sought in thi§ suit was in some way affected unfavorably by the fact that they are tenants for 999 years, and not the owners in fee of the Franklin street property. We regard this position as untenable. The tenant while in possession of the premises has a right to protect his possession against third persons by an action at law or a suit in equity. This proposition is self-evident and is well stated with a citation of numerous cases of the state and federal courts to sustain it in 18 Am. & Eng. Ency. of Law (2d. ed.), 453, as follows: “ After he (the tenant) has entered into possession he is, as to third persons, to be regarded as the owner, and may maintain, to the same extent as any other owner in possession, trespass quare clausum fregit for any unlawful interference with his right of possession, or trespass on the case for indirect or negligent injuries to his possessory right, and may also seek protection of his rights in a court of equity.” In Hamilton v. Dennison (Conn.), 1 L. R. A. 287, it was held that a tenant at will under a parol lease could maintain an action for damages for obstructing a passageway appurtenant to his'premises. Park, Chief Justice, delivering the opinion, says (p. 288) : “ The defendant claims that the plaintiff, being only a tenant at will of the premises under a parol lease, had not sufficient interest in the way to enable him to maintain this suit. We think this claim is unfounded. The plaintiff was in possession of the premises, and
We do not agree with the trial court that the plaintiffs cannot restrain the defendants from maintaining a fire escape urn less they show that it in some material respects impairs the use of the easement. The erection of the fire escape by the defendants was a trespass and an infringement of the rights of the plaintiffs in the alley, and the right of the latter to the easement being conceded,, equity will direct a removal of the obstruction and enjoin a continuance of the trespass without proof of actual damages. Such is the doctrine of all our cases. Hacke’s Appeal, 101 Pa. 245, was a bill by a lessee of property with the use of an alley appurtenant, and the court entered a decree directing the defendants to remove an obstruction from the alley. In delivering the opinion Mr. Justice Trunkey says (p. 249) : “ It has long been settled that nuisances to rights of way are one of the classes of cases in which the equitable remedy by injunction may be sought. .... This right of way is founded upon contract, the grant being shown by the respective deeds under which Brown and Hacke hold their lots. The owner has a right to its enjoyment in the mode and form stipulated for in the deeds. The mere fact that the appellants prevent such enjoyment is sufficient ground for interference of the court by injunction. It is not necessary that the owner should prove damage to entitle him to his property. Like rule applies as if the right existed by covenant directly between Brown and Hacke, and in such case when the covenant is of such nature that it can, consistently with the principles of equity, be specifically enforced, the court will not, unless under very exceptional circumstances, take into consideration the comparative injury to the parties from granting or withholding the injunction.” Ellis v. Academy of Music, 120 Pa. 608 was a case for the' erection of a bridge over an alley which the plaintiff had the right to use as a passageway and water course. The trial court charged in part as follows, which was the subject of one of the unsustained assignments of
Nor can we assent to the finding of the trial judge that “ the plaintiffs have not been obstructed in their right to the use of the alley as a passageway and water course,” and that the fire escape “ does not in any material respect impair the use of the easement ” of the plaintiffs in the alley. The fire escape had two balconies overhanging the alley and extending longitudinally over the greater part of it. Its purpose was to afford an exit from the theater in ease of an emergency, and the evidence shows that it had been used for that purpose. This imposed an additional servitude on the alley and interfered with the use of it by the plaintiffs and others having an easement in it. Doors of the theater opened on the fire escape and persons were thus enabled to use it at any time for either a proper or an improper purpose. It appeared that on some occasions boys had gone on the fire escape from the theater and annoyed the occupants of the property on the east side of the alley. Parties using the alley take the risk of things placed on the fire escape
The decree is reversed at the costs of the appellees, and it is now ordered, adjudged and decreed that the bill be reinstated and that the defendants remove the fire escape from the alley and that an injunction issue restraining them perpetually from maintaining a fire escape over and across said alley.