Keener v. Moslander

• Citation: 171 Ala. 533,54 So. 881
• Parties: KEENER ET AL. v. MOSLANDER.
• Decision Date: 17 February 1911
• Court: Supreme Court of Alabama

54 So. 881

171 Ala. 533

KEENER ET AL. v. MOSLANDER.

Supreme Court of Alabama

February 17, 1911

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Bill for injunction by J. T. Keener and the Keener Amusement Company against George E. Moslander. Decree for defendant and plaintiffs appeal. Affirmed.

Dowdell C.J., and McClellan, J., dissenting.

The bill alleges that the Keener Amusement Company is incorporated under the general laws of the state of Alabama that J. T. Keener is secretary and treasurer of said company that he and his wife own a majority of the stock, that he is in the active management and control of the company and that they are engaged in the theatrical and moving picture business in the city of Mobile; their theater building being situated and located in a building that is to the rear of the building in the city of Mobile known as 215 Dauphin street, and that on the 10th day of September, 1909, Moslander was conducting a candy business at and in the storehouse known as 215 Dauphin street, in the city of Mobile, under the lease for a term of years in and to the lower floor of said storehouse, and that complainant Keener and associates, subsequently incorporated as the Keener Amusement Company, contemplated the erection of a theater upon lands in the rear or southwardly from said storehouse on Dauphin street, opened negotiations with said Moslander for obtaining an entrance and exit to the said theater building through said storeroom, held under lease by said Moslander, and as a result of these negotiations with the said Moslander the said J. T. Keener did obtain from him a written contract of September 10, 1909, an exact copy of which is hereto attached and marked "Exhibit A," and made a part hereof. Relying upon said contract and its provisions as furnishing and securing the entrance to and exit from the said proposed theater, the complainant Keener and his associates as aforesaid in faith and reliance upon the same proceeded to erect or have erected at great expense and cost a commodious and well-equipped theater upon grounds lying in the rear of said store at No. 215 Dauphin street, and in like manner relying upon said contract did at great expense make all the changes and modifications in the store contemplated and called for by said contract. Then follows the declaration of the construction of the contract and the payment of the rent as required. It is further alleged that, after entering into the execution of the alleged contract, orators went to a great deal of trouble and incurred large expense in repairing and rearranging the building at 215 Dauphin, so that people who desired to attend the theater at the rear of said building could do so uninterruptedly and without restraint and in safety, and that the city ordinances in that respect were fully complied with, and that respondent Moslander stood quietly by and saw and permitted orator to go to the trouble and expense, knowing well that the reason why orators were making said change and why said theater was being erected and constructed, and well knew that it was absolutely necessary for orators to have and maintain said passageway, in order to accommodate the patrons of said theater, and that they could only obtain by passing through said building; said passageway being the way of necessity for these complainants and their patrons. Then follows an allegation of no other mode or means of reaching the building, and if the passageway was permanently closed or stopped the business would be wholly destroyed, and the entire investment rendered worthless and confiscated. The stopping of the passageway is then alleged by the building of a board fence, which leaves a space of only about three feet, and that this is not sufficient. It is further alleged that Moslander is insolvent and that there is no other way of gaining entrance to the theater, except through his building, and that complainant is without adequate remedy at law. The prayer is for an injunction to restrain Moslander.

The contract, after setting out the time and price, is as follows: "The party of the second part hereby grants and leases unto the said party of the first part a free passageway through the above-described storehouse from Dauphin street to the property owned by Martin Lindsey, the said passageway to be for the accommodation of patrons and others who may attend a theater to be built by the party of the first part on the aforesaid Lindsey property. In consideration of the above grants and leases, the party of the first part hereby agrees to make the following improvements and alterations in the aforesaid property: * * * Tear down a portion of the west wall of said storehouse at a point fifteen and one-half (15 1/2) feet from the outer edge of the iron door plate at the entrance of the said storehouse. (2) To brace the upper story with steel beams and iron posts, said work to be under the supervision of the city building inspector. (3) To tear out the back end of the present storehouse, and support the upper walls with steel beams and iron posts to be placed across the building. (4) To lay a substantial cement floor over the entire store including back yard, from entrance at Dauphin street, continuously to Lindsey property. (5) To plank up the east side of the said yard along a line of posts, as high as the party of the second part may require, leaving room for proper ventilation. (6) To place in the roof over the present back yard two skylights for light and ventilation. (7) To cut two doors in the wall, to give the party of the second part access to his room. (8) To place a theatrical electric sign at the front of the said storehouse, or...