Hasselbring v. Koepke

• Court: Michigan Supreme Court
• Writing for the Court: POTTER
• Citation: Hasselbring v. Koepke, 263 Mich. 466, 248 N.W. 869 (Mich. 1933)
• Decision Date: 05 June 1933
• Docket Number: No. 29.,29.
• Parties: HASSELBRING et al. v. KOEPKE et al.

263 Mich. 466

248 N.W. 869

HASSELBRING et al.

v.KOEPKE et al.

No. 29.

Supreme Court of Michigan.

June 5, 1933.

Appeal from Circuit Court, Genesee County, in Chancery; Edward D. Black, Judge.

Bill by Reinhart Hasselbring and another, administrators of the estate of Augusta Hasselbring, deceased, and others against Arthur C. Koepke, doing business as Koepke Bros., and others. From the decree, both plaintiffs and defendants appeal.

Modified and rendered.

Argued before the Entire Bench.

Millard & Roberts, of Flint, for appellants.

Carton & Gault, of Flint, for appellees William R. and Mary Hubbard.

Neithercut & Neithercut, of Flint, for appellees Arthur C. Koepke and Elwyn Pond.

POTTER, Justice.

Bill to enjoin interference with a claimed easement. From the decree entered, both parties appeal. Plaintiffs own lands in the city of Flint and claim and easement arising out of a conveyance describing the lands and easement as the ‘south one-third of lot 7, block 3 of the village of Flint River as platted, now in the city of Flint, Michigan, being 22 feet frontage on Saginaw Street and running back to Brush Street with the exception of 4 feet off the south side of the east 90 feet of said south one-third of lot 7, block 3. Said 4 feet owned by party of the first part shall be used jointly by parties hereto, their heirs and assigns, as a light shaft. Outside stairways to building known as the Paterson Block to remain if so desired by owner of said Paterson Block.’

Prior to June 28, 1916, the property conveyed belonged to William A. Paterson. On that date he executed a deed of the premises above described. Immediately adjoining the premises conveyed was the Paterson block mentioned in the deed which belonged to William A. Paterson, through whom defendants claim. Defendants William R. Hubbard and Mary Hubbard are the owners of the premises on which the Paterson block was situated. Arthur C. Koepke and Elwyn Pond are lessees of the premises. In 1929 the Paterson block burned. The lessees, at the time of the filing of the bill of complaint, were building an office building upon the leased premises. Plaintiffs ask injunction restraining defendants from constructing stairways, fire escapes, or any other construction or obstruction in the four feet mentioned in the above-mentioned deed, to be used as a light shaft.

Plaintiffs have a brick building 60 feet long on the front end of the land conveyed to them. Their parcel is 132 feet deep. The parcel on which the Paterson block stood and on which a new building has been erected is 150 feet deep. The 4x90 foot strip in question comes up to the rear end of plaintiffs' building. There is no present obstruction of light to plaintiffs' present building. The light shaft provided for in the deed would give plaintiffs light if their building was extended 90 feet or any part thereof back. There is nothing in the 4x90 foot strip in controversy that interferes with plaintiffs' light at the present time. Defendants have erected an iron stairway in this 4 x90 foot strip used in connection with the Paterson block. It is not claimed plaintiffs now contemplate the erection of a new building or extending the present one along the 4x90 foot strip in question. This case, therefore, is unique. No similar case has been cited or found.

1. As early at least as Aldred's Case, 9 Coke Rep. 57, which relies on prior cases, the right to protect easements of light was known to English law. In Jones v. Powell, Hutton's Rep. 135, Aldred's Case and Bland v. Mosely, an action on the case for stopping lights in London are cited. Holdsworth says that down to the middle of the nineteenth century there was in England comparatively little authority on easements of light. 7 Holdsworth's Hist. of Eng. Law, p. 339, and Justice Wright, in Warren et al. v. Brown (1900) 2 Q. B. 722, which reviews most of the earlier English cases, said: ‘There is scarcely any authorities bearing on the question nutil 1865.’

In Fishmongers' Company v. East India Company, 1 Dickens Rep. 163, plaintiff sought to enjoin the erection of a wall 17 feet from plaintiffs' windows on the ground it obstructed plaintiffs' light. Lord Chancellor Hardwicke said: ‘I am of opinion it is not a nuisance contrary to law; for it is not sufficient to say it will alter the plaintiffs' lights, for then no vacant piece of ground could be built on in the city; and here will be seventeen feet distance, and the law says it must be so near as to be a nuisance. It is true the value of the plaintiffs' house may be reduced by rendering the prospect less pleasant, but that is no reason to hinder a man from building on his own ground.’

In Wells v. Ody, 7 C. & P. 410, Baron Parke said: ‘A man can bring no action for the loss of a look out or a prospect, but he may do so if the light and air which would come to his windows are diminished so as sensibly to diminish the value of his premises for occupation; but the action is not maintainable, as my Lord Chief Justice says, ‘unless there is such a diminution of light as really makes the premises to a sensible degree less fit for the purposes of business.’ The question, therefore, which I shall leave to you is, whether the effect of the defendant's building is to diminish the light and air so as sensibly to affect the occupation of the plaintiff's premises, and make them less fit for occupation.'

And in Clarke v. Clark, Law Rep. 1 Ch. App. 16, Lord Chancellor Cranworth said: ‘What the plaintiff was bound to show was, that the buildings of the defendant caused such an obstruction of light as to interfere with the ordinary occupations of life. * * * The real question is not what is, scientifically estimated, the amount of light intercepted, but whether the light is so obstructed as to cause material inconvenience to the occupiers of the house in the ordinary occupations of life.’

In Back v. Stacey, 2 C. & P. 465, Mr. Chief Justice Best charged: ‘It was not sufficient, to constitute an illegal obstruction, that the plaintiff had, in fact, less light than before; nor that his warehouse, the part of his house principally affected, could not be used for all the purposes to which it might otherwise have been applied. In order to give a right of action, and sustain the issue, there must be a substantial privation of light, sufficient to render the occupation of the house uncomfortable, and to prevent the plaintiff from carrying on his accustomed business (that of a grocer) on the premises, as beneficially as he had formerly done.’

This language was quoted with approval by Lord Macnaghten in Colls v. Home & Colonial Stores, [1904] Ltd. H. of L. App. Cas. page 179, in an opinion in which he discussed the respective merits of the remedy by injunction and the remedy by an award of damages saying: ‘In some cases, of course, an injunction is necessary-if, for instance, the injury cannot fairly be compensated by money-if the defendant has acted in a highhanded manner-if he has endeavored to steal a march upon the plaintiff or to evade the jurisdiction of the Court. In all these cases an injunction is necessary, in order to do justice to the plaintiff and as a warning to others. But if there is really a question as to whether the obstruction is legal or not, and if the defendant has acted fairly and not in an unneighbourly spirit, I am disposed to think that the Court ought to incline to damages rather than to an injunction. It is quite true that a man ought not to be compelled to part with his property against his will, or to have the value of his property diminished, without an Act of Parliament. On the other hand, the Court ought to be very careful not to allow an action for the protection of ancient lights to be used as a means of extorting money. Often a person who is engaged in a large building scheme has to pay money right and left in order to avoid litigation, which will put him to even greater expense by delaying his proceedings. As far as my own experience goes, there is quite as much oppression on the part of those who invoke the assistance of the Court to protect some ancient lights, which they have never before considered of any great value, as there is on the part of those who are improving the neighbourhood by the erection of buildings that must necessarily to some extent interfere with the light of adjoining premises.’

This case was followed by Higgins v. Betts, 2 Ch. 1905, 210, where the court by Justice Farwell said: ‘It was not enough to show that some light had been taken, but the question always was whether so much had been taken as to cause a nuisance. But for many years the tendency of the Courts had been to measure the nuisance by the amount taken from the light acquired and not to consider whether the amount left was sufficient for the reasonable comfort of the house according to ordinary requirements. If a man had a house with unusually excellent lights, it was treated as a nuisance if he was deprived of a substantial part of it, even although a fair amount for ordinary purposes was left. It is in this respect that Colls' Case [(1904) A. C. 179, 194] (1) has, to my mind, readjusted the law. It is still, as it always has been, a question of nuisance or no nuisance, but the test of nuisance is not-How much light has been taken, and is that enough materially to lessen the enjoyment and use of the house that its owner previously had? but-How much is left, and is that enough for the comfortable use and enjoyment of the house according to the ordinary requirements of mankind?’

Prior to the enactment of the statute in England regulating the acquisition by prescription of easements for light, such easements over adjoining premises could be acquired by continued use. It was common in England to erect and maintain barriers to obstruct the light of adjoining proprietors in order to prevent the acquisition of easements by prescription over adjoining premises.

2. In this state ‘the rights of the owner of the...