Schmoele v. Betz
| Decision Date | 08 May 1905 |
| Docket Number | 23 |
| Citation | 212 Pa. 32,61 A. 525 |
| Parties | Schmoele, Appellant, v. Betz |
| Court | Pennsylvania Supreme Court |
Argued March 23, 1905
Appeal, No. 23, Jan. T., 1905, by plaintiff, from decree of C.P. No. 5, Phila. Co., March T., 1904, No. 1879, dismissing bill in equity in case of Charles Schmoele and Ida Schmoele trustees, v. John F. Betz and John G. Jermon. Reversed.
Bill in equity for an injunction. Before RALSTON, J.
The facts are stated in the opinion of the Supreme Court.
The court entered a decree dismissing the bill.
Errors assigned, amongst others was decree dismissing the bill.
The decree is reversed at the costs of the appellees, and it is now ordered, adjudged and decreed that the bill be reinstated and that the defendants remove the fire escape from the alley and that an injunction issue restraining them perpetually from maintaining a fire escape over and across said alley.
Frank P. Prichard, with him Thomas S. Gates, for appellants.
Defendant had no right whatever to maintain on the theater wall overhanging the alley a fire escape intended to enable the patrons of the theater to use the alley: Patterson v. P & R.R.R. Co., 8 Pa. C.C. Reps. 186; Stevenson v. Stewart, 7 Phila. 293; Kirkham v. Sharp, 1 Wharton, 323; Lewis v. Carstairs, 6 Wharton, 193; Shroder v. Brenneman, 23 Pa. 348; Coleman's App., 62 Pa. 252; Greenmount Cemetery Co.'s App., 4 A. Repr. 528, 1 Sadler 371; Greene v. Canny, 137 Mass. 64.
Plaintiffs were entitled to maintain a bill to enjoin such erection irrespective of proof of actual damage: Hacke's App., 101 Pa. 245; Miller v. Lynch, 149 Pa. 460; Ellis v. Academy of Music, 120 Pa. 608; Mershon v. Fidelity Ins. etc. Co., 208 Pa. 292; Greene v. Canny, 137 Mass. 64.
The facts showed such a change of condition and use of the property as amounted to a substantial interference with the plaintiff's right.
Samuel Gustine Thompson, with him, Walter Willard, for appellees, cited: Patterson v. Philada. & Reading R.R. Co., 26 W.N.C. 327; Stevenson v. Stewart, 7 Phila. 293.
Before FELL, BROWN, MESTREZAT, POTTER and ELKIN, JJ.
This bill was filed to restrain the defendants from maintaining a fire escape over and across an alley in the rear of the plaintiff's premises. The facts which we deem material and were found by the trial judge and not excepted to are the following:
1. The plaintiffs are the owners of a leasehold estate for 999 years in the lot of ground No. 246 N. Franklin street, Philadelphia, containing in front on Franklin street twenty feet and extending of that width westward between parallel lines at right angles with Franklin street one hundred and twenty-two feet eight inches to a three feet four inches wide alley leading northward into Vine street, together with the free and uninterrupted use, right and privilege of the said alley as and for a passageway and water course in common with the owners and occupiers of the other ground abutting thereon.
2. The defendant, John F. Betz, is the owner of No. 248 N. Franklin street, adjoining the plaintiff's lot, with the same right as the plaintiffs to the use of the alley.
3. The defendant, John F. Betz, is the owner, and the defendant, John G. Jermon, is the lessee of a lot of ground with a theater building thereon, situated on the south side of Vine street one hundred and twenty-six feet west of Franklin street, containing in front on Vine street eighty-one feet and extending of that width in length or depth one hundred feet. The east wall of the theater forms the western boundary of the alley, but in the deeds conveying the theater lot no privilege of the alley is granted.
4. The defendants have erected on the east wall of the theater a fire escape consisting of two balconies constructed of iron slats, which overhang the alley opposite the rear of lots Nos. 246 and 248 N. Franklin street, and have also constructed a permanent stairway from the lower balcony over No. 248 N. Franklin street, which is owned by the defendant, John F. Betz; the rear fence of this property has been moved forward, and the open space abutting on the alley is utilized for the foot of the stairway. The lower balcony is about sixteen feet above the pavement of the alley.
5. The titles of the plaintiffs and defendants came originally from a corporation, the common grantor. The corporation first conveyed the theater property, now owned by defendant Betz, and in the description of the lot in the deed no alley is mentioned, and the lot is described as bounded eastward by other ground of the parties of the first part. At the date of this conveyance the alley had not been dedicated as a passage and no privilege of the alley is granted nor is it referred to in the conveyance. In the subsequent deeds in the line of title down to the defendant Betz, the alley is not described as a boundary nor is any privilege of the alley granted. The plaintiff's lot was conveyed, "together with the free use, right, liberty and privilege of the said three feet four inches wide alley as and for a passageway and water course in common with the parties of the first part hereto, their successors and assigns, owners and occupiers of the other ground bounding thereon, and the laying and repairing therein pipes of conduit, for the purpose of introducing Schuylkill and other water from the said Vine street into the thereby granted premises, or any part thereof."
In addition to the above, the learned trial judge found that the plaintiffs have not been obstructed in their right to the use of the alley as a passageway and water course, that the fire escape does not in any material respect impair the use of the plaintiff's easement and in no way interferes with their use of the alley. These findings of fact are excepted to and assigned for error. The court held as conclusions of law that the plaintiffs "have simply a right to use the alley as a passageway and water course;" that at the rear of No. 248 N. Franklin street, the defendant Betz being the owner of both sides of the alley "may at that point erect such structures as he chooses so long as he does not interfere with the easement in the alley;" and "that the defendants have a right to maintain the stairway and that part of the fire escape which is opposite the rear of No. 248 N. Franklin street." The learned judge accordingly refused the injunction prayed for in the bill, and the plaintiffs have appealed.
We think that on the uncontroverted facts in this case it was clear error to refuse the relief prayed for in the bill. It is manifest from the cases he cites that the learned trial judge was led into error by a misapprehension of the facts of this case. The authorities he cites have no application here. In both cases, the owner of the fee had granted a right of way over the premises, retaining the ownership of the soil, and it was held that the grantee could not enjoin him from building over the alley if it did not interfere with the use of the way. But those are not the facts in this case. The parties to this suit hold under a common grantor who first conveyed the theater property by metes and bounds before the dedication of the alley in question and with no reference to an alley or to a right of way over an alley. The eastern boundary of the property is described in all the deeds of the defendants' chain of title as "ground now or late of," etc. Hence it is clear that the defendants, as the owners of the theater premises, have neither ownership nor easement in the soil of the alley and, therefore, have no right to utilize or obstruct the alley for any purpose.
The defendant Betz is the owner of the lot at No. 248 N. Franklin street, which adjoins the plaintiff's lot and at the rear abuts on the alley with the same rights over it as the plaintiffs have. Prior to the sale of any of the lots abutting on the alley, it was dedicated as a passageway by the owner of all the ground to the use of the lots on the eastern side of the alley. It is appurtenant alike to all of them, and the owners of the several lots have the same easement in and over the alley. The easement thus acquired by Betz when he purchased the premises at 248 N Franklin street was appurtenant solely to those premises, and did not extend to the theater property nor to any other property which he possessed. The purchase of that property, therefore, invested him with no authority to erect or maintain a fire escape on the east side of his theater over and across the alley, and in maintaining such a structure he is invading the property rights of the plaintiffs and other lot owners who have a like easement in the alley. It is settled that an easement of a right of way over another's property is appurtenant to the particular piece or lot of land of the dominant owner with which it is granted and is not personal to the owner authorizing him to use it in connection with other real estate he may own abutting on the right of way. In Kirkham v. Sharp, 1 Wharton, 323, the owner of a large lot of ground conveyed to another a small part of it fronting on a street together with the use of an alley extending a certain depth from the street alongside of the lot granted. Subsequently, the owner of the large lot sought to extend the depth of the alley beyond the smaller lot so as to connect it with another alley leading from the rear of the large lot. It was held that this could not be done against the objection of the grantee of the smaller lot. Chief Justice GIBSON in discussing the rights of the parties says (p. 334): ...
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