Saunders v. Wellner
| Decision Date | 19 April 1915 |
| Docket Number | 183-1914 |
| Citation | 59 Pa.Super. 433 |
| Parties | Saunders, Appellant, v. Wellner |
| Court | Pennsylvania Superior Court |
Argued October 22, 1914 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]
Appeal by plaintiff, from judgment of C.P. No. 5, Phila. Co.-1913, No. 2,407, for defendant n. o. v. in case of Frances B. Saunders v. Julius Wellner.
Trespass to recover damages for the obstruction of an alley. Before Ralston, J.
At the trial it appeared that on April 13, 1832, Jacob S. Waln was the owner of the adjoining lots 923 and 925 Walnut street, Philadelphia. No. 923 was the easternmost lot. On April 13, 1832, Waln by a ground rent deed conveyed the lot No. 925 Walnut street, twenty-five feet front by 159 feet deep, " 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." The deed contained a covenant that within one year from its date Northrop or his heirs or assigns should erect on the lot a three-story brick messuage sufficient to secure the ground rent reserved, and also contained a clause, at the very end of the deed, " that the said John Northrop, Junior, his heirs and assigns, shall build on the said lot on a line in front with the said Jacob S. Waln's adjoining Messuage to the eastward of the hereby granted lot."
The grantee of No. 925 Walnut street built upon the lot and over the four-feet wide alley (twelve feet above the pavement) and put the front line of the building on a line with the front of Waln's building, though the line of the house was thus eight feet and one-half inch north of the then building line of Walnut street -- which was the line observed in the description as contained in the deed. The present building line of Walnut street is four feet north of the old line, so that the front line of No. 925, which has not been extended since its erection, is four feet and one-half of an inch north of the present line of Walnut street.
The defendant, after acquiring title in 1912 to the Waln property, No. 923 Walnut street, rebuilt the front, extending it southward to the building line of Walnut street and brought forward the entrance to the alley to the same line, extending the walls on each side of it and covering the alley from the line of the house as originally erected to the building line of Walnut street with a sloping copper canopy above twelve feet from the pavement. Above the canopy were placed coping sheathing and coping, and all these things, the canopy, the sheathing and the coping were projected from or fastened to the brick wall erected over the four-feet wide alley as part of plaintiff's building, No. 925. Defendant also projected westward at the distance of nineteen feet eight inches from the pavement, a stone coping forming part of his building, over the space above the four-feet wide alley, in front of the wall erected as part of plaintiff's building, No. 925.
The court charged as follows:
By looking at these two photographs which have been offered in evidence you can see the situation at a glance, although it is somewhat difficult perhaps to understand it from the descriptions in the deeds. The high fine looking brick building which you see in the photographs is 923 Walnut street and is the building owned by the defendant. The lower building to the left of that is the building 925 Walnut street, the plaintiff's property, being an old-fashioned three-story brick dwelling. You will notice in one of the photographs that there is an alley between the two buildings and you see the top of it in one photograph. You will notice that the new building stands out four feet beyond the old line. The building which formerly stood upon that lot, 923 Walnut street, was on a line with the building 925 and they were both eight feet back of the Walnut street building line. The street, however, was widened, and the building line was put back four feet, so that now No. 923 is on the building line and 925 is four feet back of the building line.
Under the various deeds which have been offered in evidence, the plaintiff has a right to build over the four feet which is used as an alley, provided he leaves a clearing of twelve feet from the ground. The defendant, as you see, has put a cornice in the front of that four feet, extending over this alleyway, or what would be the alleyway if the house were built up to the building line. That extends over the plaintiff's line, and anything above twelve feet from the ground the defendant had no right to put there. So that, in any event, your verdict must be for plaintiff. The only question for you to determine is how much the plaintiff has been damaged by the defendant building this obstruction over plaintiff's right. Mr. Cross, whose name you see on the sign upon the plaintiff's property, testified that he has been in the real estate business for quite a number of years and has a charge of this property No. 925 Walnut street, and he said that in his opinion the owner of the property had been damaged to the extent of $ 1,000 or $ 1,500. The plaintiff is claiming a damage of only $ 500, so that if you think the plaintiff was damaged to the extent of $ 500, you can render a verdict for that amount, or you can render it for any other amount not exceeding that which you think is proper.
Verdict for plaintiff for $ 500. On a rule for judgment n. o. v. Ralston, J., filed the following opinion:
Jacob S. Waln owned land on the north side of Walnut street, east of Tenth street in the city of Philadelphia. In 1832 he sold a lot described as situated on the North side of Walnut street between Ninth and Tenth streets, containing in breadth twenty-five feet and depth 159 feet, and bounded eastward by a lot retained by him. The conveyance included the right and privilege of building over a four-foot wide alley belonging to the grantor, adjoining to the eastward of the granted lot, leaving at least twelve feet headway from the surface. A ground rent was reserved, and the grantee covenanted to erect a three-story brick messuage to secure the rent. The deed contained a clause that it was understood and agreed by and between the parties that the grantee, his heirs and assigns, should build " on a line in front with the said Jacob S. Waln's adjoining messuage to the eastward." At the date of this conveyance the front of the house belonging to Waln was eight feet north of the established building line of Walnut street. The grantee erected his house in line with Waln's building, and extended it over the alley leaving twelve feet headway. This property became vested in the plaintiff, and the adjoining property of Jacob S. Waln's in defendant.
The building line of Walnut street was moved four feet northward from its former location.
Defendant made alterations in his property, extended the building four feet south to the house line, and continued the alley to the new front. The building belonging to plaintiff remained unchanged. Defendant constructed a stone cornice at the southwestern corner of his building, nineteen feet eight inches above the pavement, which projects eleven and one-half inches beyond his western wall over the extension of the alley, and to the front wall of plaintiff's building.
Plaintiff...
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