Aspinwall v. Enter. Dev. Co, (No. 5608.)

• Decision Date: 29 September 1927
• Docket Number: (No. 5608.)
• Citation: 165 Ga. 83,140 S.E. 67
• Parties: ASPINWALL. v. ENTERPRISE DEVELOPMENT CO. et al.
• Court: Georgia Supreme Court

165 Ga. 83

140 S.E. 67

ASPINWALL.

v.ENTERPRISE DEVELOPMENT CO. et al.

(No. 5608.)

Supreme Court of Georgia.

Sept. 29, 1927.

(Syllabus by Editorial Staff.)

Russell, C. J., and Gilbert, Atkinson, and Hines, JJ., dissenting in part.

Error from Superior Court, De Kalb County; John B. Hutcheson, Judge.

Suit by C. A. Aspinwall against the Enterprise Development Company and others. Judgment for defendants, and plaintiff brings error. Affirmed in part, and reversed in part.

On July 26, 1922, Louis Regenstein executed a deed purporting to convey to 0. A. Aspin-wall described land, "known as lot No. 25 of the James Banks property, as per plat of O. P. Kauffman, C. E., June, 1922, recorded in Plat Book 7, page 12, De Kalb County Records. The deed also contained the clauses (a) "It is understood and agreed that the building line of 32 feet from Virginia avenue, shown on said plat, shall be observed in improving the property." (b) "This deed is made in compliance with bond for title between parties hereto, dated July 11, 1922."

The plat was, in part, as follows:

On June 12, 1026, James Banks, as party of the first part, and Ben W. Steele, as party of the second part, executed a written contract, which, omitting formal parts, was as follows:

"Witnesseth: that whereas, the said James Banks is the owner of lot No. 4 of the James Banks property in land lot 241 of the fifteenth district and land lot 1 of the eighteenth district of De Kalb county, Ga., on Virginia avenue and Rosedale and Briarcliff roads, as per plat thereof by O. F. Kauffman, C. E., of June, 1922; and whereas, the said Ben W. Steele is the owner of lots 28, 27, and 28 and the unnumbered tract in the rear thereof in said subdivision; and whereas, the above-described property of the first party and the party of the second part is all of the property which abuts on the alley in the rear of said lots 26, 27, and 28; and whereas, it is the desire of the said parties to close said alley and abandon the same as such, for their mutual benefit:

"Now, therefore, in consideration of the premises and $1, the receipt of which is hereby acknowledged, the party of the first part and the party of the second part hereby covenant and agree that so much of the alley as shown on said plat as lies in the rear of lots 26, 27, and 28 and extends to lot No. 4 shall be and the same is hereby closed and abandoned, and the use thereof waived and renounced as an alleyway, by the parties hereto, and the title to the land constituting said alley is granted, bargained, and conveyed by the party of the first part unto the said party of the second, in as full and complete a manner as the same is now owned and enjoyed by him."

In July, 1926, Ben W. Steele commenced the construction of an apartment house on lots 26 and 27, commencing about 32 feet south of Virginia avenue and extending southwardly across the alley and including a part of the unnumbered lot south of the alley. The west wall of the building was parallel with and near the dividing line of lots 25 and 26, and followed the course of that line across the alley and on the unnumbered lot south of the alley. The foundation of the wall was laid on the lots, without any work being done in the alley, until the foundation had reached an elevation of about 2 feet above ground.

When excavations were commenced in the alley, preparatory to construction of the walls in and across the alley, Aspinwall, who resided on his lot number 25 and knew of the proposed construction of the apartment house and had been protesting against closing: the alley, instituted a suit, on July 12, 1926, to enjoin the closing of the alley. On July 24, 1928, the petition was amended by alleging that since filing the petition the defendants have commenced the erection of the building "over the building line restrictions called for in the deed to plaintiff and the defendants, 4¹/₂ inches" at the northeast corner of the building, and praying for injunction against extension of the building over the said line. On August 7, 1926, the plaintiff filed a second amendment describing more minutely the en croachment over the building line, and alleging that he had "acted hastily since ascertaining the fact that said building extended over the building line."

The defendants filed answers. They alleged that the plaintiff resided on the adjoining lot and had ample opportunity, at the time the building was commenced, to ascertain what encroachments, if any, had been made, and notwithstanding that fact he allowed the defendants to lay the foundation of the building and to erect the weatherboarding and framework of the first and second stories at a large expense, without taking any action to stop the work; that defendants have expended approximately $45,000 upon the erection; that the sum of $15,000 or more will be necessary to complete the building; and that to remove the alleged 4¹/₂ inches of encroachment would entail upon the defendants a large and useless expense, which should have been avoided had petitioner acted in proper time.

The defendants denied the material allegations of the petition, and among other things alleged that they are not encroaching on any easement of petitioner, and are within their legal rights; that they are owners of lots 26, 27, and 28 and all the vacant space in the rear of said lots; that the alley referred to is merely a blind alley in the rear of the lots of the defendants as an easement appurtenant to their property lying on each side of said alley, and by reason of the purchase of the property on both sides of the alley the dominant and servient tenements became merged in one party, and the easement in the alley owned by the defendants became merged in their title, and by reason of said merger they have the right to close the alley between their respective properties;...