Saunders v. Racquet Club

• Decision Date: 07 October 1895
• Docket Number: 71
• Citation: 170 Pa. 265,33 A. 79
• Parties: Francis B. Saunders, Appellant, v. The Racquet Club
• Court: Pennsylvania Supreme Court

33 A. 79

170 Pa. 265

Francis B. Saunders, Appellant, v. The Racquet Club

No. 71

Supreme Court of Pennsylvania

October 7, 1895

Argued January 14, 1895

Appeal, No. 71, July Term, 1894, by plaintiff, from decree of C.P. No. 1, Phila. Co., Sept. Term, 1893, No. 912, dismissing bill in equity. Affirmed.

Bill in equity to compel the removal of a wall. Before BREGY, J.

The facts appear fully by the opinion of the Supreme Court.

Error assigned was decree sustaining demurrer and dismissing bill.

For these reasons, we think the court was right in sustaining the demurrer. Therefore, the decree is affirmed.

John G Johnson, John Marshall Gest with him, for appellant. -- A court of equity had jurisdiction, because the injury is such that damages will not afford an adequate compensation or redress. This is a trespass of a permanent nature, such as existed in Masson's App., 70 Pa. 26; Bierbower's App., 107 Pa. 14; Earley's App., 121 Pa. 496.

Jurisdiction in equity depends not so much on the want of a common law remedy as upon its inadequacy, and its exercise is a matter which often rests in the discretion of the court: Warner v. McMullin, 131 Pa. 370; Snyder's App., 8 A. 26; Hacke's App., 101 Pa. 245.

Nor is it necessary in this case to have the plaintiff's title determined by an action at law. Equity has immediate jurisdiction: Hacke's App., 101 Pa. 245; King v McCully, 38 Pa. 76; Shipley v. Caples, 17 Md. 179; Bitting's App., 105 Pa. 517.

The cases holding that the legal title must first be established at law are readily distinguishable.

In Rhea v. Forshty, 37 Pa. 503, a bill in equity was filed for the removal of a nuisance, to wit, the defendant's obstruction of an alleged alley way over which the plaintiff claimed a right of way. The bill was dismissed on the ground that the plaintiff's right should have been established first by an action at law; but in this case none of the deeds contained any reference to the alley.

A similar criticism applies to King v. McCully, 38 Pa. 76.

In Mowday v. Moore, 133 Pa. 598, a bill in equity was brought by the plaintiff against an adjoining landowner, averring careless and negligent construction of the defendant's building, by which water running through his lot was caused to flow under and through the foundation walls of his building into plaintiff's cellar. It was really a question of negligence, and the damages were such as were capable of compensation by money.

E. H. Bohlen, J. S. Clark with him, for appellee. -- The complainant seeks a court of equity to establish a legal right which the allegations of the bill show is of doubtful validity and is denied by the defendant; her alleged damages are neither immediate nor irreparable, therefore equity has no jurisdiction: Rhea v. Forsyth; 37 Pa. 503; North Penna. Coal Co. v. Snowden, 42 Pa. 488; Washburn's App., 105 Pa. 480; Norris's App., 64 Pa. 275; Tilmes v. Marsh, 67 Pa. 507; Haines' App., 73 Pa. 169; Grubb's App., 90 Pa. 228; Ferguson's App., 117 Pa. 426; Newcastle v. Raney, 130 Pa. 546; Moore v. Mowday, 133 Pa. 598; Mirkil v. Morgan, 134 Pa. 144; Duncan v. Iron Works, 136 Pa. 478; Wood v. Magrath, 150 Pa. 451; Parker v. Woolen Co., 2 Black, U.S. 545; Bispham's Equity (5th ed.), sec. 444; Adams's Equity, 211; Le Fevre v. Le Fevre, 4 S. & R. 241; Jackson v. Buel, 9 Johnson, 299; Tilmes v. Marsh, 67 Pa. 507.

The words of the deed from Denniston to the Racquet Club cannot operate as an estoppel upon the defendant to deny the right which the complainant claims.

An estoppel by deed can only affect parties and privies: Water's App., 35 Pa. 523; Allen v. Allen, 45 Pa. 468; Province v. Crow, 70 Pa. 199; Bigelow on Estoppel (5th ed.), 334.

It is well settled that there is no estoppel where the sources of information are equally open to and within the knowledge of both parties: Hepburn v. McDowell, 17 S. & R. 382; Commonwealth v. Moltz, 10 Pa. 531; Hill v. Epley, 31 Pa. 331; Thompson's App., 126 Pa. 367.

A party cannot maintain an estoppel against another on account of a representation, unless the party alleging the estoppel would have been affected by the representation if it had been against his interest: Province v. Crow, 70 Pa. 199; Cramer v. Carlisle Bank, 2 Grant's Cases, 267.

In order that a representation may operate as an estoppel, it must have been intended by the party making it, or reasonably inferred by him, that the other would act upon it: Andrews v. Lyons, 11 Allen, 349; Bigelow on Estoppel (5th ed.), 443, 570, 628-637; Brant v. Va. C. & I. Co., 93 U.S. 326; Hobbs v. McLean, 117 U.S. 567; Bloomfield v. Charter Oak Bank, 121 U.S. 138.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. DEAN, JUSTICE

The plaintiff, Frances B. Saunders, is the owner of lot 925 on the north side of Walnut street, Philadelphia; the lot has a frontage of forty-eight feet and depth of one hundred and fifty-nine feet; the defendant is the owner of lot 923, adjoining on the east; this has a frontage of thirty-four feet one inch, and about the same depth as 925. The plaintiff claims the right to project her building for the whole depth of her lot, at a height of twelve feet from the pavement, four feet over her line on defendant's lot. The necessary conclusion from the pleadings is, that defendant admits plaintiff's right to so project her building for a depth of fifty-three feet from the front on Walnut street, but denies her right to so occupy its lot back one hundred and six feet, the remaining depth of the lots.

The history of the titles and the language of the grants which give rise to the antagonistic claims, start with the year 1830. At that time, both lots were owned by Jacob S. Waln, who in 1832, by deed duly recorded, conveyed 925 to John Northrop, Jr. After a description of the lot itself in this deed, there follows this additional grant: "Together with the right and privilege of building over a four feet wide alley belonging to the said Jacob S. Waln, adjoining to the eastward of the hereby granted lot, leaving at least twelve feet headway in the clear from the surface of the pavement, he, the said Jacob S. Waln, reserving the right of retaining the three windows as now opened in the wall with reversed blinds. Together with common use and privilege of a three and a half feet wide alley extending northward into George, now Sansom street."

In 1836, Northrop conveyed the lot by precisely the same description to George Mifflin Dallas; the last named having died seized thereof, his administrator, with will annexed, joined by his heirs, on the 28th of March, 1893, by the same description conveyed the lot to this plaintiff. It would seem from the explicit words of this grant she took: 1. Lot 925, forty-eight feet by one hundred and fifty-nine feet. 2. The right to project, at twelve feet from the surface of the pavement, her building over a four feet wide alley, then, 1832, in existence and adjoining her on the east, but belonging to Jacob S. Waln, the grantor. 3. The privilege of using as a passageway, in common with Waln, a three and a half feet alley extending northward to Sansom street.

This, we say, appears to be the obvious intent of Waln's first deed in 1832, when he owned both lots, and had the right to do with his remaining one what he chose. The extent of the grant is not uncertain; true, the depth of the four feet alley is not stated in the deed, but it could be made certain by either party by mere measurement, for it was not an alley to be opened, but one there then, belonging to Jacob S. Waln. And if the title to 923, defendant's lot, had remained in the grantor, it is probable no such dispute as is now before us could have arisen. But Jacob S. Waln having died seized of 923, his executors, in 1889, by deed conveyed that lot to Edward E. Denniston. The averments of the complaint do not give us the words of the grant to Denniston; but we infer, from the 5th paragraph, which sets out that, "Waln being seized of the premises subject to the right or privilege of Northrop, died, and by authority of his will, his executor conveyed lot 923 to Denniston," that the reservation in his deed was measured by the right or privilege in Northrop's.

Then Denniston, in 1890, conveyed 923 to the Racquet Club, this defendant. The words of the reservation in this deed are as follows: "Under and subject nevertheless, as respects a part of the said hereinabove described and granted lot of ground, to wit, the Westernmost four feet in width thereof extending one hundred and fifty-nine feet in depth, Northward from the north side of said Walnut street to a certain building right and privilege as granted by Jacob S. Waln (a former owner of the said hereby granted premises) and wife to John Northrop, Jr., his heirs...