Allori v. Dinenna

• Decision Date: 13 March 1947
• Docket Number: 72.
• Citation: 51 A.2d 819,188 Md. 1
• Parties: ALLORI v. DIENNA et al.
• Court: Maryland Court of Appeals

51 A.2d 819

188 Md. 1

ALLORI v. DIENNA et al.

No. 72.

Court of Appeals of Maryland

March 13, 1947

Appeal from Circuit Court of Baltimore City; Joseph Sherbow, Judge.

Suit by Mary Dinenna and another against Maria Allori for injunction against blocking of alley. From a decree overruling motion to dissolve the preliminary injunction, defendant appeals.

Affirmed and case remanded for further proceedings.

Herbert L. Grymes, of Baltimore, for appellant.

Vincent L. Palmisano, of Baltimore, for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

COLLINS Judge.

An amended bill of complaint was filed in the Circuit Court of Baltimore City by Mary Dinenna and Joseph Montemurra hereinafter known as appellees, the owners of properties known as 302 and 304 South Albemarle Street in Baltimore City, praying for a preliminary and permanent writ of injunction to restrain Maria Allori, the owner of properties 300 Albemarle Street and 301 and 303 Slemmers Alley hereinafter known as the appellant, from blocking a two foot four inch alley which ran from the rear of appellees' properties between 301 and 303 Slemmers Alley to Slemmers Alley. It is agreed and admitted by all parties to this case that in 1846 this alley two feet four inches in width was created between 301 and 303 Slemmers Alley for the accommodation of the owners and occupiers of those lots now known as 301 and 303 Slemmers Alley and 302 and 304 Albemarle Street. The bill of complaint further alleges that Mary Dinenna, one of the appellees, orally and by registered letter, protested the complete blocking of said alley, by the said appellant digging ten feet below the surface of the street and constructing or causing to be constructed a building on the bed of said alley. It was further alleged that the said Maria Allori had obtained a permit to build said building, closing said alley, from the Building Inspector of Baltimore City.

Upon that amended bill the chancellor ordered that the preliminary writ of injunction issue as prayed, upon the filing by the appellees of a bond in the amount of two thousand dollars, reserving to the appellant the right to move for a dissolution of the injunction after filing an answer. An answer was filed by the appellant admitting the ownership of the properties by the appellees, stating that the gates of the properties 302 and 304 Albemarle Street had been nailed up on the Albemarle Street side so that no one could enter the Albemarle Street properties from the two foot four inch alley which appellees had abandoned. She further answered that the plans and specifications of the building which she intended to build across said abandoned alley were on file at the office of the Building Inspector for Baltimore City and said plans had been explained to the appellee, Mary Dinenna and both appellees knew of her plans and the said Mary Dinenna consented to the closing of said alley and to the construction of a new alleyway on the southern and eastern edge of 301 and 303 Slemmers Alley for the use of the occupiers of 302 and 304 Albemarle Street in place of the old alley which had been closed and abandoned. She further answered that no protests were filed with the Building Inspector, and therefore the permit was issued and work done. She admits that a wall was constructed by her, closing the old alley but says that the new alley was provided. She says that she had no knowledge of the disapproval of the appellees until fifteen days after work had begun. She asked that the injunction be dismissed with costs.

After hearing testimony on the preliminary injunction the chancellor filed a memorandum refusing to dissolve it, and stating that the entire case should be heard on its merits as soon as possible. He further stated that the appellant could protect the foundations, etc. against the elements; but no new or additional construction would be allowed until the entire case was determined. On August 6, 1946, he decreed that the motion to dissolve the preliminary injunction be overruled. On the same day the appellant appealed to this Court, and filed an appeal bond in the amount of two thousand dollars which was approved by the chancellor.

The appellant contends here that the original alley as a means of egress and ingress to and from Slemmers Alley had been abandoned by the occupants of 302 and 304 Albemarle Street for over twenty years prior to June 24, 1946, the date on which she claims the work was begun. Glenn v. Davis, Trustee, 35 Md. 208, 217, 6 Am.Rep. 389.

It is of course true that where the use of an alley has been abandoned by the party or parties claiming the right to use it, for more than twenty years, and the servient owners are allowed to expend money in erecting a building over the alley, he or they are not entitled to the aid of a Court of Equity to establish his or their right to the easement. Bernei v. Sappington, 102 Md. 185, 62 A. 365; Brown v. Trustees of M. E. Church, 37 Md. 108.

The appellant offered a witness, David Guglieri, who testified that he had lived at 301 Slemmers Alley for a period of thirty years and he did not see anyone use the alley during that time. However, on cross examination he admitted that during that thirty year period he fixed the alley at his own expense and that three or four years ago he saw Mary Dinenna 'washing the alley down.' He did not testify that no one used the alley during the past twenty years as contended by appellant. Jean Crook, the daughter of David Guglieri twenty-nine years of age,...