Hacke's Appeal

• Decision Date: 25 October 1882
• Citation: 101 Pa. 245
• Parties: Appeal of Hacke & Hugus.
• Court: Pennsylvania Supreme Court

101 Pa. 245

Appeal of Hacke & Hugus.

Supreme Court of Pennsylvania.

October 9, 1882.

October 25, 1882.

October 9th 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

APPEAL from a decree of the Court of Common Pleas No. 1 of Allegheny county: In equity: Of October Term 1882, No. 6.

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D. T. Watson (with him Wm. L. Chalfant), for appellants. — Under the written contract between Lauer & Bro., the plaintiffs below, and Mr. Hacke, appellant, dated April 18th 1872, the former "to the extent of their right and interest," give their free consent to the latter to erect the party wall, thus necessarily obstructing and preventing the use by Lauer & Bro. of this alley, and they thereby released Hacke from "all claims which they might or could have" by reason thereof. To prevent the possibility of any doubt about this covering the alley, it was expressly stipulated in the same agreement that Lauer & Bro. "to the extent of their interest in the premises, release unto said Hacke all their right, title and interest to the alley in the rear of Hacke's lot and agree to allow Hacke to close up the same during the continuance of said J. G. Lauer's lease." The term was extended, but the lease remained the same. The interest of the lessees was not merely until April 1879, but was under the very terms of the lease for any further period they should occupy the premises. The additional term was not a new demise but a continuation of the old: Wood's Landlord & Tenant 678. Equity has no jurisdiction in this case, as damages will compensate the loss suffered from the nuisance: Grey v. Ohio & Penn. R. R., 1 Grant 412; Richards' Appeal, 7 P. F. S. 113. The right of the complainant being disputed, equity will not interfere until he has established his claim in an action at law: Rhea v. Forsyth, 1 Wright 503.

McClung (with him Robb), for appellees, relied on the report of the Master.

Mr. Justice TRUNKEY delivered the opinion of the court, October 25th 1882.

That Thomas Brown is the owner of lot No. 106 Market street, with the free and common use of an alley four feet wide and ten feet high, is admitted. His title is by deed. He leased the premises to Lauer & Bro., for the term of ten years, from the 1st April 1869. They, by agreement, released unto Hacke all their right to the said alley and allowed him to close up the same during the continuance of said lease; and Hacke covenanted that, "at the expiration of said Lauer's lease, the said alley is to be opened by said Hacke, his heirs or assigns."

The appellants claim no right to keep the alley closed except as granted in said agreement. Lauer & Bro. had an interest, a title, at the time of making that grant, which would end on April 1st 1879, nothing more; and Hacke bound himself to open the alley when that title expired. There is no condition in their contract that if Lauer and Bro. should hold over, or acquire another term, that Hacke's performance of his covenant should be postponed.

After the making of said agreement, Brown gave Lauer & Bro. another term of three years, by extending all the conditions and covenants of the first lease for said time. Their present right to the use of the alley is the same Brown would have, if in possession of the lot. This right is clear and not doubtful. There needs no action at law to determine it. Reference to the record of the judgment in favor of Lauer & Bro. against Hacke for damages, caused by obstructions in the way prior to said permissive grant, can make the right no clearer. Hacke's title to his...