67 Pa. 507 | Pa. | 1871
The opinion of the court -was delivered,
The case presented by the plaintiff’s bill, • divested of immaterial circumstances, is this: William Huckel, by purchase, became the owner of two adjoining lots, which had been originally conveyed by two separate deeds to a person from whom he deduced title — one as of the width of 20 feet and the other of 16 feet.. Two houses had been built on these two lots, a three-feet wide alley being laid out between them, so as to leave about 16} feet upon each side of it. One of the houses was built entirely over the alley-way, and the party-wall between the two houses was accordingly on one side of the alley. The house thus built over the alley was erected on the smaller of the two lots. William Huckel devised the one messuage and lot and the house thereon erected to his son Jacob, under whom the plaintiff claims, and the other lot, messuage and tenement, being that built over the alley-way, to his son Robert, under whom the defendants claim. Both these devises were “ with the free use and privilege of the three-feet wide alley.” The plaintiff insists that the title to the soil over which the alley is laid out is in him according to the original lines of the lots, confirmed, as he alleges, by a subsequent deed from Robert to Jacob. He sets out several acts of defendants interfering with his right, under a claim of a fee simple in the said alley-way to the depth of 34 feet 8 inches, and prays for relief that defendants be enjoined from keeping the doorway in thé first story, the window in the second story and the opening in that part of the western wall overhanging the alley; that they be enjoined from using the wall for the support of their joists and house, and that they cease overhanging said alley with the upper stories of said house; and for a decree that the boundary line between the said houses shall be run so as to throw the whole soil of the said alley into the plaintiff’s lot, and be so continued to the whole depth of said lots.
It certainly does not require any elaboration to prove that this is a mere ejectment bill, and might have been demurred to as such: 2 Danl. Chan. Prac. 29. In Loker v. Rolle, 3 Ves. 4, a bill in many respects similar to this, Lord Rosslyn said: “Upon
In this case complainant’s bill sets up nothing but a legal right, invaded by the defendants, and for which the remedy by an action of ejectment is adequate and complete-. The bill admits that the possession of the defendants extends over the alley. That is-a trespass on plaintiff’s close, if the title to the soil is in him. Oujus est solum ejus est usque ad ccelum. Ejectment will lie to recover possession of the soil, subject either to a public or private easement over it: Goodtitle v. Alker, 1 Barb. 133; Cooper v. Smith, 9 S, & R. 26. “ It is no bar to a recovery,” says Mr. Justice Duncan, “ that'another possesses a right of way or other easement, for the owner of the soil may maintain an ejectment for land over which a highway is laid out.” There would be no difficulty here, the defendants being in the exclusive occupation, both under and above the alley, either in the sheriff’s returning them as in possession on the summons in ejectment, or in giving possession to the plaintiff, if he should recover a verdict and judgment, upon the habere facias, subject to the right of way acknowledged to be in the defendants. . We are of the opinion that the court has no jurisdiction of this bill.
Decree reversed. And now it is ordered and decreed that the bill be dismissed at the costs of the complainant and appellee.