Rhea v. Forsyth

• Decision Date: 07 January 1861
• Citation: 37 Pa. 503
• Parties: Rhea <I>versus</I> Forsyth.
• Court: Pennsylvania Supreme Court

37 Pa. 503

Rhea versus Forsyth.

Supreme Court of Pennsylvania.

January 7, 1861.

ERROR to the District Court of Allegheny county.

COPYRIGHT MATERIAL OMITTED

R. & S. Woods, with whom was C. Hasbrouck, for appellant, argued that complainant had acquired a twofold right to the use of the alley: —

1. By the Statute of Limitations, it having been used in common by the several occupants for a period of over twenty-one years: citing Tranger v. Sassman, 2 Harris 517; Worrall v. Rhoads, 2 Whar. 427; Newman v. Rutter, 8 Watts 51; Darlington v. Painter, 7 Barr 473; Strickler v. Todd, 10 S. & R. 64.

2. By the joint dedication of the several lotowners in 1849, to their common use, and by each contributing part of his lot to make an alley where none existed before, building according to one plan of which the alley was a material part, and contributing to the cost of laying down therein a water-pipe for their common use, the alley became an appurtenant to each house: citing Lewis v. Carstairs, 6 Wh. 193; Schenly v. Commonwealth, Leg. Jour. vol. 7, p. 378; Cope v. Grant, 7 Barr 488; McKellip v. McIlheny, 4 Watts 321.

A. N. Miller & James I. Kuhn, for appellee.—1. The claim under the Statute of Limitations is not sustained by the evidence, nor was there such an adverse use or enjoyment as would raise a presumption of a grant: Esling v. Williams, 10 Barr 126. If the allegation of a common consent of owners be true, they should all be joined as parties in the bill.

2. The allegation of a general recognition of this alley in 1849, is denied and is not sustained by the evidence. If at all it was done on condition that the building should be used as a clothing store, which was not complied with, so far as the houses of Voegel and Irwin are concerned. If the right claimed be an incorporeal hereditament, it should have been by deed. It is within the Statute of Frauds, the protection of which respondent has invoked, nor is there any equity to this easement raised by the contribution for the water-pipe: the right of way and the right to maintain this pipe being totally distinct.

Complainant, if deceived as to this claim, has no one to blame but himself. An examination of the deeds from Horner down, would have satisfied him that there was no right to this alley: no such appurtenance is mentioned.

On the facts, the District Court has decided against the complainant, which like the finding of a jury should not be reversed unless clearly wrong. There must be a clear right to warrant an injunction: 2 Story Eq. § 959.

The opinion of the court was delivered, January 7th 1861, by WOODWARD, J.

This was a bill in equity to restrain and remove a private nuisance. The plaintiff claimed a right of way by means of a three feet alley across the rear of the defendant's lot, and he complained that the defendant had obstructed it by a permanent erection thereon. The District Court, from whence this appeal comes, refused a special injunction, and after the answer and proofs came in, dismissed the plaintiff's bill without prejudice, but without filing any reasons of record.

The question to which we have first turned our attention is as to the jurisdiction of courts of equity in cases of private nuisance and disturbance of easements — a question which does not seem to have attracted the notice of counsel at all. The remedies at law for nuisances are very ample. Those that are public may be removed by indictment, and such as are private may be redressed by an action on the case. And the party aggrieved by either a public or private nuisance, may also abate or remove it by his own act, so as he commit no breach of the peace in doing it, nor occasion, in the case of a private nuisance, any unnecessary damage. These legal remedies however, can, at the utmost, only abate or afford compensation for an existing nuisance, but are ineffectual to restrain or prevent such as are threatened or in progress; and for this reason there is a jurisdiction in equity to interpose, if the fact of nuisance be admitted or established at law, whenever the nature of the...