Hall v. Rood

• Decision Date: 08 January 1879
• Citation: 40 Mich. 46
• Court: Michigan Supreme Court
• Parties: George D. B. Hall and Azro Healey v. Henry W. Rood

40 Mich. 46

George D. B. Hall and Azro Healey v. Henry W. Rood

Supreme Court of Michigan

January 8, 1879

Submitted November 21, 1878

Appeal from Kalamazoo. Submitted November 21, 1878. Decided January 8, 1879.

Decree reversed and the bill dismissed with costs.

Brown Howard & Roos for complainants and appellees. All encroachment upon the right of way granted in a private alley is illegal, Salisbury v. Andrews, 19 Pick. 258; Tudor Ice Co. v. Cunningham, 8 Allen 139; Farnsworth v Taylor, 9 Gray 162; Welch v. Wilcox, 101 Mass 162; Schwoerer v. Boylston Market Association, 99 Mass. 285.

Germain H. Mason and Dallas Boudeman for defendant and appellant cited Johnson v. Kinnicutt, 2 Cush. 153, and Atkins v. Bordman, 2 Metc. 457, and claimed that complainants had sustained no such injury as entitled them to relief by injunction; that they could only have sustained nominal damages and had a legal remedy. Van Bergen v. Van Bergen, 3 Johns. Ch., 282; Amelung v. Seekamp, 9 Gill. & J., 468; Clack v. White, 2 Swan 545; McCord v. Iker, 12 Ohio 387; 2 Story's Eq. Jur., § 925; High on Injunctions, §§ 486, 565.

Marston, J. The other Justices concurred.

OPINION

Marston, J.

Complainants and defendant are the owners in severalty of certain adjoining property in the village of Kalamazoo, upon which buildings have been erected, and in the rear of which there is, and has been since 1848, a private alley twenty feet wide.

More than twenty years previous to the time the bill was filed in this cause, a wooden building was erected between the rear of defendant's building and this private way, which it is conceded encroached upon the alley some six inches.

In 1878 defendant desired to make some improvements upon this wooden building. He tore off the siding, and commenced the erection of a stone foundation thereunder, with the design of veneering the building with brick and building a stairway in the alley to the second story thereof. Complainants objected to the construction of the stairway which would have extended into the alley some four feet, and also objected to any encroachment whatever. The defendant desisted from building the stairway, but proceeded to veneer the wooden building with a four-inch wall, which would be an encroachment of three inches into the alley farther than the wooden building was before the siding thereon was taken off. Complainants thereupon filed their bill and obtained an injunction restraining defendant from completing the brick wall, then nearly finished. An answer was filed, proofs taken, and on the hearing a decree was granted, making the injunction perpetual, and commanding defendant to "remove the brick wall, foundation and roof covering the same, and every part and parcel thereof, which is situate and being on the private alley aforesaid." After the injunction was served, work upon the brick wall was discontinued, and between it and the roof the building was boarded up for protection against storms, and the roof put on, but which did not progress farther than sufficient to cover the brick wall when completed.

It might admit of some question whether the decree was not broader than really intended. It would seem to require the removal of not alone the three-inch projection, but the entire wall, a portion of which had stood and encroached upon the alley for over twenty years, and had ripened into a right by adverse use. Under the recitals in the decree, perhaps no serious question would arise as to the extent thereof, but under our view of the case,...