St. Louis Safe Deposit & Savings Bank v. Kennett Estate

• Decision Date: 28 April 1903
• Court: Missouri Court of Appeals
• Parties: ST. LOUIS SAFE DEPOSIT & SAVINGS BANK v. KENNETT ESTATE et al.

74 S.W. 474

101 Mo. App. 370

ST. LOUIS SAFE DEPOSIT & SAVINGS BANK v. KENNETT ESTATE et al.

Court of Appeals at St. Louis, Missouri.

April 28, 1903.

ADJOINING OWNERS—PRIVATE ALLEYS—CONTRACTS — MAINTENANCE—LIGHT AND AIR— OBSTRUCTIONS—ENCROACHMENTS—CONTINUING NUISANCES—INJUNCTION—LACHES —ACQUIESCENCE—ESTOPPEL.

1. Two adjoining landowners entered into a contract to maintain a private alley, which provided that the place described should be and remain for the use of the parties, and that they mutually granted to each other a permanent easement in a strip, that they might mutually have light and air from and might mutually and without obstruction have the permanent use of said strip as an alley and passageway for themselves, their tenants, successors, and assigns. Held, that such contract not only secured to the parties the unobstructed use of the alley for passage, but also prohibited the maintenance by one of such adjoining owners of windows and a furnace chimney extending into the alley above the second story of his building abutting thereon, to the damage and inconvenience of the other adjoining owner.

2. Where a contract for the maintenance of a private alley between plaintiff and defendants, adjoining property owners, precluded defendants from maintaining projections on their building into the alley, and such projections caused continual damage to plaintiff, which could not be measured or made good by money judgments, plaintiff was entitled to enjoin the maintenance of such obstructions as a continuing breach of his contract rights.

3. Defendants constructed a building on the line of a private alley separating it from plaintiff's building, and constructed a sheet-iron smokestack four feet and four inches in diameter, which was set on an elbow emerging from the rear wall of the building into the alley at the second story, and rose above the eighth story. The smokestack projected into and occupied one-third of the alley's width, and extended within eight feet eight inches of plaintiff's building, and the heat which radiated therefrom made it necessary in the summer time to close the windows of the offices in plaintiff's building on that side, made them untenantable, and also diminished the light and air which would otherwise have come to plaintiff's building from the alley. Held, that plaintiff was entitled to enjoin the maintenance of such smoke-stack as a continuing nuisance.

4. Where, on the erection of defendants' building, plaintiff, an adjoining owner, objected to the construction of a smokestack which extended into a private alley between the adjoining property as a breach of his rights under the contract for the maintenance of the alley, mere delay in bringing suit to restrain the maintenance of such smokestack did not constitute laches sufficient to bar plaintiff from relief; plaintiff having been informed by the secretary of one of the defendants, who was a lawyer, that defendants had a right, under the contract, to so maintain the smokestack, and defendants having suffered no damage by the delay.

5. Where on construction of defendants' building, plaintiff, an adjoining owner, objected to the maintenance of a smokestack extending into a private alley jointly owned by plaintiff and defendants as a breach of the contract for the maintenance of the alley, and complained to the secretary of one of the defendants, who was an attorney, and who informed him that, by virtue of a recent decision of the courts, defendants were entitled to so maintain such smokestack, whereupon plaintiff left, but appeared not to be convinced, and was not aware of his legal right to enjoin the same until a long time thereafter, and could not have determined the extent of the inconvenience until after the stack was completed, plaintiff was not barred by acquiescence from subsequently suing to enjoin the maintenance of the stack.

6. Where, on an objection to the construction of a smokestack extending into a private alley between the land of adjoining owners, defendants examined the contract for the maintenance of the alley, and concluded that they had a right to maintain the smokestack as planned, and proceeded with the same without regard to plaintiff's objections or acts, plaintiff was not estopped from subsequently suing to enjoin the maintenance of such stack; defendants being in no way misled by plaintiff's acts.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by the St. Louis Safe Deposit & Savings Bank against the Kennett Estate, a corporation, and another, to restrain the maintenance of certain encroachments on a private alley and to abate the same as nuisances. From a decree in favor of plaintiff, defendants appeal. Affirmed.

E. S. Robert and J. T. & A. B. Shepley, for appellants. Judson & Green, for respondent.

GOODE, J.

The petition of the plaintiff states a cause for equitable relief from certain encroachments on a private alley which the plaintiff owns in common with defendant the Kennett Estate, and for the abatement of nuisances maintained by the defendants. Plaintiff is a corporation which owns and occupies a two-story building standing on a lot 22 feet wide and 107½ feet deep, on the north side of Locust street, in the city of St. Louis. This building covers the entire lot, has been there for many years, and is occupied by the plaintiff for the transaction of a safe deposit and banking business. Plaintiff's main banking business is conducted on the first floor, its clerks and book-keepers working on the east side of the room next to the alley in question. There are rooms, too, on that side, for the use of customers who wish to look over their papers and transact other business, and similar rooms on the second floor. The building is lighted and ventilated through two front windows in the first story and four in the second, and on the east side through six windows below and ten above, opening on the alley. The Kennett Estate owns the lot east of the plaintiff's premises, immediately across the alley and at the northwest corner of Locust street and Broadway, two main thoroughfares of the city of St. Louis, the former running east and west and the latter north and south. The situation of the respective properties will be understood from the following plan:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Prior to 1897 a four-story building stood on the Kennett lot, but it was destroyed by fire some time that year. The building standing there at present was erected during the years 1898 and 1899, and completed early in the latter year. It was designed for the use of the Mermod-Jaccard Jewelry Company, which took possession of it in May, 1899. That building is eight stories high, with a front of more than 100 feet on Broadway and a wider front on Locust street. Its west wall stands flush with the west line of the lot it is built on; that is, with the east line of the alleyway. Bay windows project 3 feet and 11 inches from all the stories above the first, and overhang the alleyway. In the basement are furnaces and engines, and, to carry the smoke and gas away, a large sheet-iron smokestack or chimney, 4 feet and 4 inches in diameter, emerges from the west or rear wall of the building 11 feet and 6 inches above the surface of the alley, and 42 feet north of Locust street, and rises above the eighth story. This smokestack projects into and occupies exactly one-third the alley's width, and therefore extends within 8 feet and 8 inches of the east wall of plaintiff's building. Besides the smokestack, some water pipes originally ran up the rear of defendant's building, but those have been removed. An exhaust fan to force the hot air and smoke from the furnaces and engine room of the Mermod-Jaccard Building was operated for awhile, and annoyed the plaintiff's officers and employés, but that nuisance, as well as the water pipes, was abated, and is no longer a subject of controversy.

The lot on which the Mermod-Jaccard building stands was owned in 1898 by six persons named Kennett, who incorporated that year as the Kennett Estate, and conveyed the property to said corporation. Before that date the following agreement had been executed by the Kennetts and the plaintiff's predecessor, the Safe Deposit Company of St. Louis: "This agreement made and entered into this seventeenth day of December, A. D. 1880, by and between the `Safe Deposit Company of St. Louis,' a corporation of the city of St. Louis, and Agnes Kennett, John C. Kennett, Luther Kennett, Charles P. Kennett, William C. Kennett and Kenneth W. Kennett, also of said city of St. Louis. Witnesseth: That said parties have mutually agreed and do now mutually agree to and with each other that a certain strip or parcel of ground having a width of about thirteen feet and a length or depth of one hundred feet, in Block No. 118, of said city of St. Louis, and more particularly described as follows: beginning on the north line of Locust street one hundred and twenty-seven feet, four inches west of Fifth street, running thence northwardly one hundred feet, thence west about thirteen feet to the eastern line of the lot of said Safe Deposit Company, thence southwardly along such eastern line of said Safe Deposit Company one hundred feet to Locust street and thence east along the north line of Locust street to the point of beginning, the west line of said alley being one hundred and twenty-nine feet six inches east of the east line of Sixth street, shall be and remain an alleyway for the use and enjoyment of the parties to this contract as owners adjoining said strip of ground on the east and west thereof; and said parties do mutually grant to each other a permanent easement in said strip of ground to the end that they may mutually have light and air from and over said strip and that they may mutually and without obstruction or encroachment have the permanent use of said strip as an alley and passageway for themselves, their...