Klaber v. Lakenan

• Decision Date: 25 March 1933
• Docket Number: No. 9584.,9584.
• Citation: 64 F.2d 86,90 ALR 783
• Parties: KLABER et al. v. LAKENAN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

90 ALR 783, 64 F.2d 86 (1933)

KLABER et al. v. LAKENAN et al.

No. 9584.

Circuit Court of Appeals, Eighth Circuit.

March 2, 1933.

Rehearing Denied March 25, 1933.

Leland Hazard, of Kansas City, Mo. (Maurice H. Winger, Joseph T. Owens, and Winger, Reeder, Barker, Gumbiner & Hazard, all of Kansas City, Mo., on the brief), for appellants.

Ellison A. Neel, of Kansas City, Mo. (A. L. Cooper, Frank J. Rogers, and Cooper, Neel, Kemp & Sutherland, all of Kansas City, Mo., on the brief), for appellees.

Before KENYON, GARDNER, and SANBORN, Circuit Judges.

KENYON, Circuit Judge.

This is a suit in equity, commenced by one Samuel Marcus Fechheimer against Robert F. Lakenan and Kansas City Operating Corporation, to enjoin the maintenance of a metal canopy and signs claimed to be obstructions to plaintiff's right to light, air, and the view to and from his business property in the city of Kansas City, Mo. Since the submission of the case appellant (plaintiff in the trial court) has died, and his administrator, Fred W. Klaber, and his widow, Alice S. Fechheimer, have been substituted as appellants. Parties will be designated as in the trial court.

Plaintiff was the owner of a lot and a two-story business building thereon abutting on the west side of Main street about one-half block north of Eleventh street in Kansas City, Mo. This property is in the retail district. Main street runs in a northerly and southerly direction. Defendant Lakenan is the fee owner of a plot of ground and a theater building thereon south of and adjacent to plaintiff's property, known as the Royal Theater. The Kansas City Operating Corporation holds the property under a ninety-nine year lease. It operates a motion picture theater in the premises. Plaintiff's property is leased to the Robinson Shoe Company for the purpose of a retail shoe store under a lease dated July 1, 1923, running for twenty years. This suit was instituted on September 30, 1927, and at that time defendants were maintaining a marquee or metal canopy extending the entire width of the frontage of their property, and projecting into the street a distance of several inches beyond the outer edge of the sidewalk. This canopy was constructed of heavy iron work, supported by chains. Its height above the sidewalk was about ten feet, and its vertical section is about three feet in depth. Also defendants were maintaining a large electric sign projecting at right angles from the front of defendants' property above the canopy fifteen feet or more, with a height from top to bottom of approximately six feet. There was another electric sign of approximately the same size projecting at right angles from the front of the building into the street about the same distance, which was above the first-mentioned sign, and was used to advertise the name of the motion picture theater, while the lower sign was used to advertise current attractions at the theater. Prior to the institution of the suit the Kansas City Operating Corporation erected upon and above the permanent canopy at various times temporary signs advertising current attractions. This practice the court found had ceased before the institution of this suit. During the pendency of this suit defendants removed the two signs and replaced them with a single large vertical sign bearing the name of the theater, "Royal," which arose to a height of some fifty-six feet above the street. The sign is thirty-three feet high and five feet and one inch wide, and projects out from the face of the building a distance of some nine feet. Defendants also placed some permanent metal signs to be used for advertising attractions upon the three faces of the permanent canopy. The vertical sign and the other signs on the faces of the canopy are illuminated by electric lighting devices, while flood lights are maintained in the top of the canopy for the illumination of the entire front of the theater building. The Kansas City Operating Corporation purchased the theater and leasehold interest July 15, 1926, paying therefor $250,000. The canopy and horizontal electric signs had been erected ten years before with permission of the city of Kansas City. The fact of their existence entered into the consideration for the purchase of the leasehold interest. There is some question as to just what authority was granted for the change in the signs. Fechheimer purchased his property in May, 1923. He paid therefor some $297,000, and immediately leased the same to the Robinson Shoe Company at an annual rental of $18,456. At the time of his purchase Fechheimer was holding the property under a lease from the owner, which ran until 1928, and was paying a rental of $13,680 per year. For seven years before Fechheimer purchased this property defendants' predecessor in title was operating the Royal Theater and maintaining the canopy and the original electric sign under authority of a city ordinance and building permit. No complaint was made concerning the erection or maintenance of the canopy or sign prior to Kansas City Operating Corporation's purchase of the theater or in fact until March, 1927. The first floor of the Fechheimer Building has show windows and some signs indicating the nature of the tenant's business. Above the first floor are two signs laid flat against the building. The first, which is at the dividing line between the first and second floors, is in the words, "Robinson Shoe Company." The second is in the words, "The Big Shoe Store." These are large lettered signs extending across the entire front of the building. There are no window displays on the second floor. The Robinson Shoe Company maintains a wooden canopy and a canvas awning, which awning when extended "completely shuts off the view of adjacent building fronts from persons under or approaching the awning." The Robinson Shoe Company had two lighted show cases that extended out on the sidewalk two and one-half to three feet, and were about four and one-half feet high. They were removed just prior to the trial.

Plaintiff's complaint was that the canopy and signs obstructed a view of his store building from the street, especially from the intersection at Eleventh and Main streets, which is known as the heart of the retail shopping district in Kansas City; that as owner of the building he was entitled to an easement or right to light, air, and view from the street appurtenant to the property; and that defendants are interfering therewith.

The trial court filed an opinion (2 F. Supp. 785) and made findings of fact and announced a conclusion of law. It held that plaintiff was not entitled to the equitable relief demanded and dismissed the bill. The court found that the canopy and signs had no effect whatever in intercepting a view of the first floor of plaintiff's building from the street so far as its display windows were concerned; that the only direct effect caused by the canopy and signs upon the view of anything on plaintiff's building which advertised the business carried on therein was with respect to the two signs, and as to that stated: "As to the two upper signs on plaintiff's building the view of them is cut off by the canopy and signs above and around the canopy from only a few points from which otherwise they would be visible. Being flat against the building it is obvious that they are best seen from in front or from across the street. This view is in no way or only to the very slightest extent obstructed. The pedestrian proceeding northward on the same side of the street as plaintiff's building could not see the two signs on that building if the theater canopy and signs were entirely absent until he was within a few feet of the building. For a short distance after otherwise he could see these signs his view of them is cut off by the canopy, but in that distance in which his view is intercepted he has a full and uninterrupted view of the plaintiff's first floor show windows, of the displays therein, and of the electric and metal signs on and about the windows." He refers to the fact that such pedestrian could have seen the lighted showcases advertising the business conducted in the plaintiff's building set out in front of the plaintiff's building by the tenant. The court also refers to the fact that there are many canopies of similar nature on Main street, which have electric signs around them and above them; that nearly every place of business on the street has an awning reaching out over about one-third of the width of the sidewalk.

There was conflicting evidence in the case as to the effect of the alleged obstruction of view upon the rental value of plaintiff's property. Of course, rentals have increased in Kansas City since the canopy and signs were erected, and as the court says, "Since many elements enter into rental value, that fact may not be said conclusively to negative plaintiff's contention in this regard." There was evidence that from the second floor of plaintiff's building the prospect outward and southward was intercepted somewhat by the corporate defendant's canopy and sign. As to this the court said: "It was quite clear, however, that that fact was of no practical at least of no present practical significance." Many pictures were introduced in evidence showing the situation at various times with reference to the canopy and signs temporary and permanent.

The trial court made findings of fact. We here set out some of them:

"7. I find the fact to be that the northward view of that part of the Robinson Shoe Store which is above the show windows on the first floor thereof of pedestrians on Main street who may be south of the Robinson Shoe Store and of others than pedestrians who may be south of the Robinson Shoe Store to some extent is interfered with and obstructed by the canopy and signs in front of the Royal Theater. And I find the fact to be that the view southward along the west side of Main street of persons on the second floor thereof also to some extent is interfered with...