Bernei v. Sappington

• Decision Date: 23 November 1905
• Citation: Bernei v. Sappington, 102 Md. 185, 62 A. 365 (Md. 1905)
• Parties: BERNEI et al. v. SAPPINGTON et al.
• Court: Maryland Court of Appeals

62 A. 365

102 Md. 185

BERNEI et al. v. SAPPINGTON et al.

Court of Appeals of Maryland

November 23, 1905

Appeal from Circuit CourtNo. 2 of Baltimore City; George M. Sharp Judge.

Suit by Ferdinand Bernei and others against Lizzie C. Sappington and others.From an order dismissing the bill, plaintiffs appeal.Affirmed.

Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, PEARCESCHMUCKER, JONES, and BURKE, JJ.

Louis B. Bernei, and Geo. R. Willis, for appellants.

Charles J. Bonaparte and Paul N. Burnett, for appellees.

BURKE J.

This is an appeal from an order of the circuit courtNo. 2 of Baltimore city, dismissing the bill of complaint without prejudice to the right of the plaintiffs to institute appropriate proceedings at law respecting the subject-matter of this controversy.The bill sought to procure an injunction restraining the defendants from obstructing and closing the alley therein mentioned, and to require them to reopen the alley to the extent to which it may have been closed by them.A somewhat detailed statement of the issue raised by the pleadings will make more evident the grounds upon which we rest the decision of the case.

The bill alleges: That the plaintiffs are possessed of a certain lot of ground with improvements thereon situated in the city of Baltimore at the southeast corner of Eutaw and Lexington streets.That said lot was demised to the complainants' ancestor, Seligman Bernei, in 1881, by H. Marcus Denison.That in said conveyance the lot was described as follows Beginning for the same at the southeast corner or intersection of Eutaw street and Lexington street, and running thence east, binding on Lexington street, 63 feet, to a 3-foot alley, running from Lexington street, parallel with Eutaw street, of the depth of 78 feet, laid out and left open by Christian Miller for the benefit of the purchasers of his lots; thence south, parallel with Eutaw street and binding on said alley, 38 feet; thence west, parallel with Lexington street, 63 feet, to Eutaw street; and thence north, binding on Eutaw street, 38 feet, to the place of beginning--with the right and privilege of said alley, in common with said Miller and his assigns, but subject to the right and privilege heretofore granted by Hezekiah Claggett to a certain John Daly and his assigns, by indenture bearing date the 25th of March, 1824, of the use of said alley, and also the right of building over the same, so far as the said Hezekiah Claggett then had the right thereto, against, in, and upon the wall of the house then owned by him adjoining said alley.That the defendantsLizzie C. Sappington and Coale S. Brenan, are seised in fee of a certain lot of ground, with improvements thereon, adjoining the plaintiffs' property, known as 323 West Lexington street, and that as such owners they have the right to the use and privilege of the alley as now laid out and used on the west side of the property, and the right of building over the same so far as a certain Hezekiah Claggett has a right thereto, against, in, and upon the wall of the house once owned by him adjoining said alley, so as not to injure said wall.The bill then alleges that on February 14 1901, the defendantsLizzie C. Sappington and Coale S. Brenan leased their said property to Benjamin F. Spink for a term of 15 years, with the understanding that said lessee should tear down the improvements on the lot and erect a new three-story house, to cost not less than $4,500, and that said Spink recently proceeded to have the old buildings torn down, and for that purpose employed the defendant Jones, who is also under contract with said lessee, to erect a three-story house in place of the old building; that the work of erection of said house is now progressing, and that, although they have warned the defendants not to encroach upon said alley, to the common use and privilege of which the plaintiffs have a right, they, the said defendants, have nevertheless begun to close up and build upon said space of three feet covered by said alley, and, unless restrained, will completely close the same and appropriate said alley to their own use; that the deprivation by the defendants of the plaintiffs' use and privilege of said alley is not susceptible of adequate compensation in damages at law, and will work irreparable injury to the plaintiffs' property, unless the defendants be restrained by the court, and be directed to remove the obstructions from the alley and restore said alley to its original condition as an alley.The prayer of the bill is that the defendants or their agents may be enjoined from placing any brick, stone, or other building material in or upon said alley, and from closing the same as an alley, and that an order may be passed commanding the defendants to remove any such building material therefrom, and to reopen the same to the extent to which it may have been closed by them.

To this billthe defendants filed separate answers.The answer of the defendant Jones alleges that on the 28th of March, 1901, he entered into a contract with Benjamin F. Spink to tear down an old, and erect a new, building, on the lot No. 323 West Lexington street, and that on July 2, 1901, he had completed said improvements; he denied that he ever received any notice from the plaintiffs as alleged in the bill.The answer of Benjamin F. Spink avers that he originally leased the premises No. 323 West Lexington street in February, 1881 that he has occupied the premises continuously since that date; that on February 14, 1901, he entered into a new lease with the present owners; that pursuant to the provisions of said lease he has since the date thereof torn down the old improvements on said lot and has erected a new building thereon, the...