Fechheimer v. Lakenan, 868.
| Decision Date | 17 November 1931 |
| Docket Number | No. 868.,868. |
| Citation | 2 F. Supp. 785 |
| Parties | FECHHEIMER v. LAKENAN et al. |
| Court | U.S. District Court — Western District of Missouri |
Miller, Winger, Reeder, Barker, Gumbiner & Hazard, of Kansas City, Mo., for plaintiff.
Cooper, Neel, Kemp & Sutherland and Ryland, Stinson, Mag & Thomson, all of Kansas City, Mo., for defendants.
Plaintiff is the owner of a certain plot of ground and a two-story business building abutting on Main street, on the west side thereof, in Kansas City, Mo., in one of its most busy retail districts. Main street runs in a north and south direction and is intersected north of plaintiff's building by Tenth street and south thereof by Eleventh street. Plaintiff's building is used for retail business purposes (the retail sale of shoes). On the plot of ground immediately south of plaintiff's plot is a theater building (for moving and sound pictures) on a plot of ground owned by the defendant Lakenan leased by long-term lease to the corporate defendant.
Over the entrance to the theater the corporate defendant has a canopy, of permanent construction, and in connection with this canopy, around and above it, various electrically lighted signs. The canopy extends across the sidewalk at such a distance above the sidewalk as not to interfere with use of the sidewalk by pedestrians.
Complaining that the canopy and signs obstructed a view of plaintiff's store building and the free access of light and air thereto, the plaintiff filed its bill in equity praying that defendants be enjoined from the further erection of any canopy and signs and for the removal of those presently maintained.
In addition to a general denial, the following defenses are set up in the answer by the corporate defendant: (1) That it became the owner of a ninety-nine year lease of the theater June 15, 1926, when the canopy and signs had already and for several years been erected by permission of a city ordinance and that the plaintiff is now, by silence and long acquiescence in the maintenance of the canopy and signs, estopped to complain; (2) that the plaintiff purchased his property May 15, 1923, after the erection of the canopy and signs, and that if they depreciated the value of the property purchased by plaintiff he received compensation for that depreciation in reduction of purchase price at the time of his purchase; (3) that this action is barred by the statute of limitations; (4) that the plaintiff has been guilty of laches; (5) that the plaintiff is not a real party in interest and that facts are not stated in the bill entitling the plaintiff to equitable relief.
1. The evidence at the trial largely was directed to a showing of the physical facts, although there was evidence also touching other matters. Numerous photographs from
varying viewpoints were offered, as well as drawings made and explained by engineers. At the joint and repeated requests of the parties I personally visited the scene and made several observations from different points both in the daytime and at night.
Plaintiff's building, occupied by its tenant the Robinson Shoe Company, is of two stories. It has been used for the retail sale of shoes for many years (the evidence indicates it has been used for that business more than twenty-five years), and the building has been leased by the plaintiff to the present tenant (the plaintiff is a stockholder and was one of the incorporators of the tenant company) for period extending several years into the future.
The first floor front of the building is entirely made up of plate glass windows behind which are displayed exhibits of goods sold by the shoe company. Here are several signs, some in metal letters, some electric, indicating the nature of the tenant's business and giving the tenant's name. The first floor window displays are attractive and undoubtedly of great advertising value. The slightest glance toward them either in the day or night immediately reveals the nature of the business conducted in the store.
Above the first floor are two signs, laid flat against the building, the first of which is at about the dividing line between the floors, and the second of which is at the very top of the building. The first is in the words: "THE ROBINSON SHOE COMPANY." The second is in the words: "THE BIG SHOE STORE." Each is in large letters extending across the entire front of the building and capable of being seen and read for several blocks. There are no window displays of any kind on the second floor, and no one observing the windows of the second floor would learn anything therefrom as to the nature of the business conducted in the building.
Now the effect of the canopy and signs upon the view of persons on the street is this: They have no effect whatever of intercepting a view of the first floor of the plaintiff's building so far as its display windows are concerned. The canopy is not supported by pillars from below, but by chains from above, so that there is not even the slight interception which might be caused by such supports. The only effect caused by the canopy and signs upon the view of anything on plaintiff's building which advertises the business carried on in that building is with respect to the two signs described in the preceding paragraph. I am speaking, of course, of any direct effect. I suppose and at the trial ruled that such an indirect and purely psychological effect as might result from the greater brilliance of the theater front, proceeding from its highly illuminated canopy and signs, was not to be considered. If it were considered it certainly would be offset by the fact that thousands drawn to the theater see the show windows in plaintiff's building who otherwise would not at all see them.
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. It appeared in the testimony, and there was no denial of it, that until a few days before the trial such a pedestrian also would have had a full view of lighted showcases advertising the business conducted in the plaintiff's building and which were set out in front of the plaintiff's building by plaintiff's tenant as appurtenances of the building. Just before the trial they were removed.
There was evidence that at a time prior to the filing of the plaintiff's second amended bill upon which the case was tried the corporate defendant frequently erected above its canopy certain large temporary signs and some of the photographs in evidence show these signs, but it was clear that this practice had been finally abandoned long before the trial, and therefore there is no reason for considering the effect of signs of this character.
There was conflicting evidence as to the effect of the alleged obstruction of view and prospect upon the rental value of plaintiff's property. Certain witnesses testified that that value was depreciated; others testified it was not depreciated. There is no question that rentals on both sides of the theater have in fact continuously increased since the canopy and signs were first erected, but, since many elements enter into rental value, that fact may not be said conclusively to negative plaintiff's contention in this regard.
Some evidence was introduced on behalf of plaintiff for the purpose of showing that from the second floor of plaintiff's building the prospect outward and southward was somewhat intercepted by the corporate defendant's canopy and sign. That that is true, of course, is obvious. It was quite clear,...
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Klaber v. Lakenan
...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 di......