Livingston v. Wolf

• Decision Date: 06 October 1890
• Docket Number: 76
• Parties: JACOB LIVINGSTON v. J. H. WOLF
• Court: Pennsylvania Supreme Court

20 A. 551

136 Pa. 519

JACOB LIVINGSTON v. J. H. WOLF

No. 76

Supreme Court of Pennsylvania

October 6, 1890

Argued April 28, 1890

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY.

No. 76 May Term 1889, Sup. Ct.; court below, No. 4 August Term 1884 C.P. in Equity.

On June 18, 1884, Jacob Livingston filed a bill in equity against John H. Wolf, and others, his contractor and their employees averring, in substance:

That plaintiff and defendant Wolf owned adjoining lots fronting on North Hanover street in the borough of Carlisle; that upon the plaintiff's lot was built a valuable residence, and a residence was building upon the lot of the defendant, the front walls of both dwellings being bounded at the level of the pavement by the eastern line of the street.

That the defendant Wolf had begun the construction of a balcony sixteen feet above the pavement and projecting three feet over the building line into the street, and intended to construct, also, second and third story bay-windows projecting in like manner three feet into the public highway, and that said structures, if completed, would be a nuisance and injury to the plaintiff.

The prayers of the bill were for an injunction restraining the construction of said balcony and bay-windows, and for general relief.

The answer of the defendants admitted the material averments of the bill, except that it was averred that the bay-windows, extending from the floor of the balcony to within about four feet from the cornice of the house, would project but two feet four inches from the front of the building; that neither of the structures would project farther from the building line than was permitted by the borough ordinances; and it was denied that the structures would constitute a nuisance to the plaintiff.

Issue having been joined, the cause was referred to Mr. H. S. Stuart, as examiner and master, who subsequently reported as follows:

Hanover street is one of the principal thoroughfares in the borough of Carlisle. It is a public highway eighty feet wide, laid out by the Penns, the proprietaries of the province at the time the borough of Carlisle was originally laid out. The lots on either side of this street were numbered and sold, and were described in the conveyances as bounded on the east or west, as the case might be, by Hanover street. The lots were sixty feet wide and two hundred and forty feet in depth. The distance from the base of these lots to the building line of the street is two hundred and forty feet. Mr. Wolf's house is situated on a part of one of these lots, and immediately adjoining, on a part of another of these lots, is situated Mr. Livingston's house. Both houses are on the eastern side of said North Hanover street about midway between Louther street and Mulberry alley. The Livingston building is south of the Wolf building, and the base line of both buildings is on the building line of the street. . . .

From the pavement to the top of the Livingston building, the distance is thirty-five feet, nine inches, i.e., to level of cornice. To level of cornice on Wolf building, in same manner, is forty-three feet six inches; to top of highest point on Wolf building is forty-six feet nine inches. The width of the Wolf building is twenty-six feet. The distance from pavement to floor of Wolf's veranda is seventeen feet four inches. The length of the veranda corresponds with the width of the Wolf building. The veranda projects upon the street three feet three inches. The bay-windows are situated in the middle of the veranda. That in the second story projects two feet three and one half inches from the building line upon the street; the height of said bay-window is twelve feet four inches. The bay-window on third story projects, in like manner, one foot, eleven and one half inches. The height of this bay-window to top of roof on third story is eleven feet nine inches. The width of the bay-window on second story is seven feet five inches. The width of the third story bay-window is six feet nine inches. From no point within the Livingston building can the bay-window be seen, nor can the veranda be seen from within the Livingston building, on the second story, except that nearest the said veranda. . . .

The evidence further shows that there are in the borough of Carlisle four other bay-windows somewhat similar to the bay-windows on the Wolf building; that none of these were erected prior to the year 1869, and that they are so situated with reference to adjacent owners that no peculiar inconvenience is occasioned by them to said adjacent owners; that there are twenty-seven jut windows, more than thirty-five balconies, a large number of permanent and adjustable awnings, signs extending across the footwalk, also many heavy cornices and several hundred trees; and that these enumerated objects are all beyond the building line of the streets of the borough. There is no evidence to show that objection has ever been made to these structures before the present instance. It is the custom of the borough of Carlisle to permit objects of the general kind above enumerated to remain permanently in its streets. No evidence was offered to show the nature and amount of inconvenience occasioned by said veranda and bay-window to Jacob Livingston, further than that which is necessarily to be inferred from the above stated facts, nor is there any direct testimony to show that Mr. Livingston's property is diminished in value by the Wolf projections. . . .

It is further contended on part of the defendant that even though the structures complained of would in the absence of any borough ordinance be of such a nature that Mr. Livingston would obtain relief in equity, yet the borough ordinances afford complete protection to Mr. Wolf. On page 53, Borough Ordinances of Carlisle, § 6, appears the following, passed May 20, 1852:

"If any person or persons shall make any pavement, etc., or if any person shall hereafter make and set up in any street of sixty feet wide or upward any porch, cellar door or steps, which shall extend beyond the distance of four feet three inches into such street, or beyond a proportionate distance, if set up in any narrow street; or, if any person shall make or set up any bulk or jut window which shall extend beyond the distance of twenty-eight inches into the said street, or shall place or cause to be placed any spout or gutter whereby the passage of any street, lane or alley shall be incommoded, and shall fail to remove the same within three days after notice given by the chief or assistant burgess, he, she or they so offending shall forfeit and pay a sum not exceeding five dollars, and for continuance of such offence shall forfeit and pay a sum not exceeding ten dollars."

Section 7, page 93, reads as follows, March 16, 1869:

"From and after the passage of this ordinance, it shall be unlawful for property owners in said borough to extend into the pavement any cellar doors for a greater distance than three feet nine inches, or any doorsteps to a greater distance than three feet six inches, on any of the streets of said borough."

The veranda does not extend into the street beyond the distance of three feet three inches, nor does either bay-window project into the same beyond twenty-seven and one half inches.

It will be observed that these proceedings were instituted soon after the defendant began the building on which are the projections. The plaintiff has slept upon no right and is entitled to all the consideration that the law gives to the vigilant man. On the other hand, the defendant, relying on his rights in the matter and with a full knowledge of these proceedings, has, as is shown by the amendment to the plaintiff's bill, now almost completed the projections complained of. In these circumstances, a court of equity will interfere as readily and on the same evidence to remove these projections, as it would to prevent their erection. . . .

The rights of property owners along the public highway are nowhere defined with precision. It seems, however, to be the settled law both in this country and in England that in general a recovery may be had in a suit at law in all cases where the legal right of the plaintiff has been invaded by the defendant, even though no actual damage result therefrom. The law will import damage. But when an individual asks an equitable remedy, when he seeks by injunction to restrain another from erecting or maintaining that which is styled a nuisance, something more than the mere invasion of a legal right must be shown. He must of course first show that a legal, or, as it is sometimes called, a substantial right has been invaded, else no matter how great the damage he may suffer from the act or omission of the defendant, he would not have any standing to complain. He must then go beyond this and show that the injury done him is not of a trifling character, but tangible, considerable, and seriously interfering with the enjoyment of his property. Some of the cases even go further, and put it perhaps too strongly by saying that the injury must be irreparable.

At all events, the injury must be of a special, private and peculiar character. The mere fact that the object complained of amounts to a public nuisance, does not render it improper for a private individual to seek relief by injunction, if his legal rights have been infringed, and if, in addition to the damage suffered by the public generally, he shows a damage done him of a special and peculiar kind. It is no defence to a wrongdoer to allege that the act complained of inflicts a like injury on a number of persons. The rule is that one erecting or maintaining a common nuisance is not liable to an action at the suit of one who has sustained no damage...