Fleischmann v. Hearn

• Decision Date: 23 June 1922
• Docket Number: 53.
• Citation: Fleischmann v. Hearn, 141 Md. 463, 118 A. 847 (Md. 1922)
• Parties: FLEISCHMANN v. HEARN et ux.
• Court: Maryland Court of Appeals

118 A. 847

141 Md. 463

FLEISCHMANN v. HEARN et ux.

No. 53.

Court of Appeals of Maryland

June 23, 1922

Appeal from Circuit Court of Baltimore City; Charles F. Stein Judge.

Suit by William E. Fleischmann against Walter A. Hearn and wife. From a decree for defendants, plaintiff appeals. Affirmed in part reversed in part, and remanded.

O Parker Baker, of Baltimore, for appellant.

Henry M. Stainback, of Baltimore, for appellees.

BRISCOE J.

The bill in this case is filed in the circuit court of Baltimore City, by William E. Fleischmann, of Baltimore City, against Walter A. Hearn and Effie J. Hearn his wife, to procure an injunction restraining the defendants, first, from interfering with the rights of the plaintiff in the proper use of a three-foot alley therein mentioned; and, secondly, to require them by a mandatory injunction to reopen the alley, to the extent it may have been closed by them, and to remove all obstructions to the proper use of the alley by the plaintiff. The case was heard by the court below, upon bill, answer, and proof, and from a decree, dated the 6th of March, 1922, refusing the injunction and dismissing the bill, the plaintiff has taken this appeal.

The bill alleges that the plaintiff is the owner of the leasehold property situated at the southeast corner of Courtland and Pleasant streets, in the city of Baltimore, and that the defendants own the house and lot which adjoins on the east of the plaintiff's house and lot, and there is an alley three feet wide running from the southeasternmost corner of the plaintiff's lot, eastward to Hargrove alley, a public highway formerly known as Gravel alley, which alley, by the terms of the plaintiff's deed, he has the privilege of using. The bill then alleges that, although the defendants' deed and the plaintiff's lease call for the alley, and each has an equal privilege to the use of the three-foot alley, the defendants closed the alley for ingress and egress immediately in the rear of his lot, which gives them the use of the same, and deprives the plaintiff of the use of the three-foot alley (except for drainage purposes, the waste water from the complainant's lot has always passed through the three-foot alley, and that the defendants or their predecessors have never interfered with the plaintiff's use of the alley for the purpose of drainage), to the plaintiff's great and irreparable damage and injury.

The bill further charges that the plaintiff is desirous of improving his leasehold property with an office building, and the three-foot alley is a necessary privilege or appurtenant, and its use will add materially to the value of the plaintiff's leasehold interest in his lot. The bill also charges that heretofore, on July 28, 1920, the plaintiff caused to be sent a letter to the defendants, asking that the three-foot alley be opened, in order that the plaintiff might have the use thereof granted him in his lease, and as an answer to this letter the defendants stated that they would open the alley for the use of the plaintiff, provided he would give three feet of his lot for an alley to the east side of Courtland street, and has refused ever since to allow the plaintiff the use of the three-foot alley to Hargrove alley. The bill then avers that since the notification, to wit, July 28, 1920, the defendants on the 3d day of September, 1920, conveyed the property unto George W. Sparks and Janie I. Sparks, his wife, who thereupon conveyed the property unto the defendants, as tenants by the entireties, which deed attempts to convey the three-foot alley, as will more fully appear by reference to the last-mentioned deed filed as an exhibit in the case.

The defendants answered the bill, and for a defense contend: First, that the plaintiff's bill fails to show such title in him as would authorize a court of equity to grant relief by mandatory injunction; second, that any rights which the plaintiff or his predecessors in title may have had in the three-foot alley, except the use of the drain pipe for surface drainage, have been lost by the adverse possession of the land by the defendants and their predecessors in title; third, that the appellant knew, when he purchased the property, that he had no easement of ingress and egress through the alley, and that its use for this purpose had been abandoned by the predecessors in title of both the plaintiff and defendants for more than 20 years before the suit was brought; and, fourth, that the defense of laches and acquiescence is a complete bar to the plaintiff's claim and contention.

The court below was of the opinion, after a hearing of the case, that any rights which the plaintiff or his predecessors in title may have had in the three-foot strip of land in the rear of the defendants' property, No. 105 East Pleasant street, and referred to by the plaintiff as an alley, except the use of the underground drain pipe for surface drainage running thereunder from the plaintiff's yard to the three-foot alley beginning at the southeasternmost corner of the defendants' lot and leading to Hargrove alley, and the use of which drain the plaintiff admits the defendants have not interfered with, have been lost by the adverse possession of this strip of land by the defendants and their predecessors in title.

The decree as passed and appealed from in this case is as follows:

"It is thereupon, this 6th day of March, 1922, adjudged, ordered, and decreed by the circuit court of Baltimore City that the legal title to the three-foot strip of land or alley in the rear of the defendants' property, No. 105 East Pleasant street, except and subject to the right of the plaintiff to the use of the underground drain pipe running thereunder as aforesaid, is vested in the defendants, Walter A. Hearn and Effie J. Hearn, his wife; it is therefore further adjudged, ordered, and decreed that the injunction asked for by the plaintiff in this case be and the same is hereby refused; and it is further adjudged, ordered, and decreed that the bill of complaint in this case be and the same is hereby dismissed."

We cannot concur in the conclusion reached by the court below in that part of its opinion of March 6, 1922, which holds that the legal title to the three-foot strip of land or alley was in the defendants by...