Pierce v. Cleland

• Decision Date: 10 March 1890
• Docket Number: 157
• Citation: 19 A. 352,133 Pa. 189
• Parties: HORATIO S. PIERCE v. JOHN CLELAND ET AL
• Court: Pennsylvania Supreme Court

19 A. 352

133 Pa. 189

HORATIO S. PIERCE v. JOHN CLELAND ET AL

No. 157

Supreme Court of Pennsylvania

March 10, 1890

Argued February 26, 1890

APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY.

No. 157 January Term 1890, Sup. Ct.; court below, No. 4 June Term 1886, C.P. in Equity.

On May 5, 1886, Horatio S. Pierce filed a bill in equity against John Cleland and John Simpson, praying upon the facts therein averred for an injunction restraining the defendants, their employees and workmen, from erecting a "fence" or partition, or in any way interfering with the plaintiff's use of the entrance, corridors, or stairs of a certain building described in the bill. An answer having been filed by the defendants, and issue joined, the cause was referred to Mr. J. Alton Davis, as examiner and master.

On March 21, 1889, the master filed a report, by which the material facts in controversy were found to be as follows:

In 1870, Joseph H. Scranton, Horace B. Phelps, H. S. Pierce and Thomas Dickson, owned in common lots 17 and 18, in block 30 situate on Wyoming avenue in the city of Scranton. These lots had together a frontage on Wyoming avenue of 100 feet, and extended in depth 167 feet to an alley in the rear.

In 1876, H. B. Phelps purchased from the executors of Joseph H Scranton, the latter's interest in the land. The title to the same became vested in Mr. Phelps by deed which was duly recorded.

In 1877-78, Messrs. Phelps, Pierce and Dickson began considering the advisability of improving the land by the removal of the buildings then standing, and the erection of a building which should cover the entire frontage. The idea seems to have originated with Mr. Phelps. An architect was consulted, who prepared several sketches, and submitted them to Messrs. Phelps and Pierce. Mr. Dickson took no part in selecting the plans, but left this matter wholly to the other owners of the property. Various sketches were prepared, submitted and rejected. Finally a sketch was prepared, which in the main, was acceptable, and after changes were made, that were suggested by Messrs. Phelps and Pierce, a formal plan was drawn, specifications prepared, and a contract made with a builder for the erection of the building.

On December 7, 1878, the contract for the erection of the building was executed by the three parties, and Mr. H. B. Rockwell, the builder. The building was built in substantial conformity with the plans and specifications referred to.

On December 24, 1878, Messrs. Phelps, Pierce and Dickson, by a tripartite deed made partition of the land, Mr. Phelps taking the southerly 50 feet, Mr. Pierce the adjoining 25 feet, and Mr. Dickson the northerly 25 feet. In this conveyance, the grant to each party is absolute. No reservation of a right of way or of passage is made, nor is there any grant of the same to any of the parties.

[SEE ILLUSTRATION IN ORIGINAL]

At the time of the partition, nothing had been done toward the erection of the building, except the adoption of the plans, the letting of the contract, and, possibly some slight excavation for the foundation. A portion of the surface was improved with a frame building occupied by a tenant, and some difficulty was experienced in ousting him. This was not accomplished until January 13, 1879, after which work was begun in earnest and prosecuted until the completion of the building in the fall of that year. . . .

The building was built in substantial conformity to the plans prepared. It is a substantial, three-story brick and stone building, covering the entire frontage of the lots. The first floor is divided into four stores, the southerly one being of double the size of each of the others, having a frontage of about 50 feet. The double store stands on the land allotted to or taken by Mr. Phelps by the partition. . . .

The second and third floors are divided into rooms suitable for offices, together with the necessary closets. The offices are situate at the front and rear of the building. Through the centre of the building, on the second and third floors, running from the north wall of the Dickson building, through the Pierce building to nearly the south wall of the Phelps building, is a broad corridor. This corridor is used as a passage way between the front and rear offices of each building, as well as for passage between the offices in the different buildings. Well-holes for light and air are constructed in the corridor through the third floor, and by the use of sky-lights in the roof, the building is supplied with light and air. The well-holes and sky-lights are three in number, one in each building, that in the Phelps building being proportionately larger than those in the other buildings.

There are party walls of brick between the Phelps and Pierce buildings, and also between the Pierce and Dickson buildings. On the second and third floors these walls are arched to allow for the corridors.

The entrances from the street to the second story are two in number, and are located wholly in the Phelps and Dickson buildings. The main entrance is located nearly in the centre of the block, at the north line of the Phelps lot; the other stairway is located at the north line of the Dickson building.

The stairways leading from the second to the third floors are likewise wholly within the Phelps and Dickson buildings; that in the Phelps building being at the rear of the corridor, and using a portion of the room that could otherwise be used for offices. As placed, the stairway considerably shortens one of the rear rooms on the second floor, as well as one on the third floor. In the Dickson building the stairway from the second to the third floor is located in the corridor and reaches the third floor through the well-hole. The plans, as adopted, provided for but a single stairway from the second to the third floors. The Dickson stairway was added at the suggestion of the builder. The space in the Pierce building that in the other buildings is used for stairway, is used for offices. This increases the rental value of the Pierce building at least two hundred dollars per year.

This structure of the building gives no access to the second or third floors of the Pierce portion, except by use of the corridor, in connection with the Phelps or Dickson stairways.

After the death of Mr. Phelps, his executors conveyed his portion of the land, being lot 17, to Elias Morris, who subsequently and before the inception of this suit conveyed the same to the present defendants. There is no reservation of any right of way, or any mention of any encumbrance in either of these deeds.

On May 11, 1886, the defendants, John Cleland and John Simpson, began to construct a fence or partition across the corridor in the second story of the building, on the division line between lots 17 and 18, and thereupon plaintiff filed this bill. . . . If this fence had been completed, plaintiff and his tenants would have had no access to the main stairway. Nor would he have had any entrance to the second or third floors of his building as constructed, except by the use of the Dickson stairway. . . .

The location of the main stairway, the one in dispute, wholly on lot 17, was not the result of an accident, nor did it come from any mistake of lines; it was done designedly. . . . It is found as a fact that there was an agreement made between Messrs. Pierce and Phelps, at the time the plans were drawn, by which Mr. Pierce was to use the stairway in the Phelps portion of the completed building. . . .

The contract of December 7, 1878, for the erection of the building is in writing, signed by all the parties and the builder. It was prepared by using a printed blank, and the written portions, except the signatures, are in the handwriting of H. B. Phelps.

[SEE ILLUSTRATION IN ORIGINAL]

By the terms of the contract the builder agreed to well and sufficiently erect and finish a three-story stone and brick building on Wyoming avenue, agreeably to the drawings and specifications made by Isaac G. Perry, architect. The first parties covenant to pay the builder for said building the sum of $20,000 "upon monthly estimates to be made by I. G. Perry, architect, or by one or more of the owners as to amount of work done, less ten per cent; provided that in each of such cases a certificate be obtained from the architect or H. B. Phelps that the payment is due;" and again, "11, It is expressly understood and agreed that H. S. Pierce and Thomas Dickson are to be held liable to said Rockwell (the builder), only for one-quarter each of $20,000, the balance, $10,000, to be paid by H. B. Phelps." It is thus apparent that each owner did not pay for one completed building, but each paid his proportion of the cost of the whole building.

The defendants are not purchasers for value, without notice of the right here claimed. They have been the occupiers of the stores in the Phelps building since its completion. They saw, or could have seen, the use of the stairways; they knew the structure of the building. Besides all this they had actual notice of this claim. . . .

It is also apparent from the testimony that it was contemplated by the owners to make partition of the land, while they were considering the project of building. The architect knew while he was preparing the plans, which was without question before the tripartite deed, that Mr. Phelps was to have the southerly fifty feet, Mr. Pierce the piece adjoining, and Mr. Dickson the northerly quarter. . . .

Upon the foregoing facts, the master, citing and discussing Pomeroy's Eq. J., § 611; Memmert v. McKeen, 112 Pa. 315; Thompson v. Miner, 30 Ia. 386; Le Fevre v. Le Fevre, 4 S. & R. 241; Swartz v. Swartz, 4 Pa. 353, concluded his report as follows:

Your master therefore...