Hausman v. Brown

• Decision Date: 07 February 1918
• Docket Number: 8 Div. 676
• Citation: 77 So. 993,201 Ala. 331
• Parties: HAUSMAN et al. v. BROWN.
• Court: Alabama Supreme Court

77 So. 993

201 Ala. 331

HAUSMAN et al. v. BROWN.

8 Div. 676

Supreme Court of Alabama

February 7, 1918

Appeal from Circuit Court, Tuscaloosa County; H.B. Foster, Judge.

Bill by Diana Hausman and others against A. Brown to perpetually enjoin interference in any wise with the easements and rights of complainants, and from closing the openings of doorways in partition walls, etc. Decree for respondent, and complainants appeal. Affirmed.

The following is the opinion of the court:

In the year 1879 Stephen Miller owned the brick store at the southeast corner of the intersection of Broad or Fifth street and Greensboro avenue, in the city of Tuscaloosa. The store fronted on Broad street and its west wall was on the east line of Greensboro avenue. Miller also owned the store adjoining the corner store to the east, which also fronts on Broad street. In 1879 Miller conveyed the corner store to Garner & Simpson, and at a later date conveyed the said adjoining store to C.J. Hausman, through whose will the complainants derive title. At the time of the conveyance to Garner & Simpson there were two halls running across the upper floor of the corner building, and doors in the east wall of the building opening from said halls into the upper floor of the adjoining building. A balcony was attached to the west wall of the corner building hanging out over the sidewalk of Greensboro avenue. The balcony was supported on posts resting on the sidewalk. From the balcony a flight of stairs led down to the sidewalk, and rested upon the sidewalk, the base occupying about five feet of the width of the sidewalk. In his deed to Garner & Simpson, Stephen Miller reserved for himself, his heirs, and assigns the right to use said stairs, balcony, and halls across the second floor of the corner building for ingress and egress to and from the second floors of the complainants' building and of two other buildings adjoining complainants' building to the east. Through successive conveyances, Brown acquired title to the corner store, and in all of said successive deeds including the immediate deed to defendant, the right reserved by Stephen Miller was reserved or excepted. In his deed to C.J. Hausman, Miller conveyed to Hausman, in addition to the storehouse and lot, the right he had reserved to himself, his heirs, and assigns in his deed to Garner & Simpson.

The above-recited condition of the corner building, with reference to the stairway, balcony, and cross-halls continued to exist from 1879 until 1916, when, shortly before the institution of this suit, defendant took down the balcony and stairway, closed the doors in the west wall of his building, and was proceeding to tear out the cross-halls and close the doors in his east wall leading from the halls to the second floor of complainants' building. The bill of complaint seeks an injunction compelling the defendant to restore the balcony and stairway, and to open the doors in his west wall, and restraining him from proceeding further to interfere with the condition of his cross-halls and the doors leading through his east wall from said halls into the upper floor of complainants' building.

The defendant does not deny the jurisdiction of equity to protect by injunctive relief, rights of character claimed by complainants. But he sets up the facts hereinabove briefly summarized, and says that so long as he maintains the stairway on the sidewalk, or permits it to remain as an attachment to his building, he is guilty of the commission of a public nuisance for which he constantly is liable to indictment by the grand juries of the county, and also to prosecution under an ordinance of the city of Tuscaloosa. He also says that the stairway resting upon the sidewalk is essential to complainants' enjoyment of the rights of ingress and egress claimed, and...