Macht v. Hecht Co.

• Decision Date: 17 June 1948
• Docket Number: 199.
• Parties: MACHT et al. v. HECHT CO. SETTLE v. HECHT CO. HECHT CO. v. MACHT et al.
• Court: Maryland Court of Appeals

59 A.2d 754

191 Md. 98

MACHT et al. v. HECHT CO.

SETTLE v. HECHT CO.

HECHT CO. v. MACHT et al.

No. 199.

Court of Appeals of Maryland

June 17, 1948

Appeals from Circuit Court of Baltimore City; W. Conwell Smith, Chief judge.

Suit by the Hecht Company against Annie Macht and Mooris Macht trustees under the last will of Ephraim Macht, deceased, and W. Booth Settle, for a declaratory decree. From a decree sustaining demurrers to two prayers for relief and overruling demurrers to two other prayers, defendants appeal and plaintiff cross-appeals.

Frederick H. Hennighausen and Wm. B. Davidson, both of Baltimore (Charles F. Stein Jr., of Baltimore, on the brief) for A. Macht et al., trustees.

W. Booth Settle, of Baltimore (George T. Ness Jr., of Baltimore on the brief), for W. Booth Settle.

Leonard Weinberg and George L. Clarke, both of Baltimore (Weinberg & Green, of Baltimore, on the brief), for Hecht Co.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.

HENDERSON, Judge.

The Hecht Company, a Maryland corporation, operates two large department stores in Baltimore City, one of which is located at the northeast corner of Charles and Baltimore Streets, and another on the southeast corner of Charles and Fayette Streets. The rear of each store building abuts on Wilkes Lane, a fifteen foot highway or alley running east and west parallel to Baltimore Street on the south and Fayette Street on the north, for a distance of 125 feet on the south side of Wilkes Lane and 140 feet on the north side. In 1928, under authority of a city ordinance, the stores were joined by a superstructure extending upwards to the full height of the buildings, six stories, but leaving the alley open to a height of thirteen feet. This structure extended from the building line at Charles Street in an easterly direction for thirty-two feet. In 1944, a one-story bridge was built across the alley at a point 100 feet east of Charles Street at the fourth floor level.

In 1947, The Hecht Company was authorized by City Ordinance No. 866 to fill in most of the remaining space between the two buildings across the alley, to connect the stores to the height of six stories, leaving only a clearance of thirteen feet in the alley at ground level and extending one hundred and twenty-five feet in all in a easterly direction from Charles Street.

Annie Macht and Morris Macht, trustees, and others, owning property abutting on Wilkes Lane east of the proposed structure, declined to give their consent to the erection of the proposed structure, and the Hecht Company thereupon filed a bill in the Circuit Court of Baltimore City for a declaratory decree. In addition to a prayer for general relief, The Hecht Company prayed the Court to declare: (1) That the erection of the proposed superstructure will not 'diminish, obstruct, hinder, infringe upon, limit, restrict or otherwise interfere with the defendants' rights to light and/or air passing through, over and upon Wilkes Lane, and will not depreciate the value of Defendants' said property, or of their interest therein'; (2) that the Ordinance no. 866 is 'a valid and legal enactment and within the powers granted to the Mayor and City Council of Baltimore by the Charter and other Statutes'; (3) that the defendants be directed to answer, and if they shall claim that the proposed structure 'will diminish, obstruct, hinder, infringe upon, limit, restrict or otherwise interfere with their rights to light and/or air passing through, over and upon Wilkes Lane, and/or will depreciate the value of their said property,' that the burden of any such claims be placed upon the Defendants. The defendants filed demurrers to the bill. After hearing, the chancellor sustained the demurrers as to the first and third prayers for relief, and overruled the demurrer to the second prayer, and the prayer for general relief. Appeals and cross-appeals were thereupon taken to this court.

The Hecht Company, in its brief, abandons its contention that the Chancellor erred in sustaining the demurrer to the first prayer for relief. We find no error in the ruling of the Chancellor upon the third prayer for relief. We have been referred to no authority, and we have found none, that would justify a declaration as to the burden of proof in a final decree. It is doubtless true that in the course of a trial upon the merits the court may be called upon to rule upon questions of evidence, and to apply the rules as to burden of proof in evaluating the evidence presented. 'The duty to go forward may of course shift and alternate as evidence is introduced or presumption arises.' Borchard, Declaratory Judgments, 2nd Ed., p. 407. See also Reliance Life Ins Co. v. Burgess, 8 Cir., 112 F.2d 234. We express no opinion at this...