Stein v. Dahm

• Decision Date: 07 November 1892
• Citation: 96 Ala. 481,11 So. 597
• Parties: STEIN v. DAHM ET AL.
• Court: Alabama Supreme Court

11 So. 597

96 Ala. 481

STEIN v. DAHM ET AL.

Supreme Court of Alabama

November 7, 1892

Appeal from chancery court, Mobile county; W. H. TAYLOE, Chancellor.

Action by Joseph Stein against John Dahm and another to reopen an alley formerly existing between the lots of the parties, and keep the drain running therein unobstructed by defendant. From a decree dismissing the bill, plaintiff appeals. Decree affirmed as to the alley; as to the drain, the injunction is reinstated, and made perpetual.

Fredrk. G. Bromberg, for appellant.

Chamberlain & Richardson, for appellees.

STONE C.J.

It is assigned as error that the chancellor, after first granting relief to complainant, entertained defendants' petition and granted them a rehearing. The first decree was rendered in vacation, under rule 80 of chancery practice, (Code 1886 p. 825.) The concluding clause of that rule is in the following language: "When the decree is rendered in vacation, either party may apply for a rehearing by the second day of the next ensuing term of said court." The application in this case was made "by the second day of the next ensuing term of said court," and the chancellor committed no reversible error in entertaining it. In fact, we cannot perceive on what ground such order, if applied for in time, could be reviewed in this court. Of course, rehearings are granted under that rule only when the chancellor is induced to change his mind, or comes to doubt the correctness of his first ruling. Once granted, however, the case is left without a decree, precisely as if none had ever been rendered. There is nothing in this assignment of error.

If the question were before us, we are not prepared to say we would hold the answer puts in issue the execution of the deed Exhibit A, so as to cast on complainant the burden of proving its execution. The answer does not deny the execution of the deed. It only denies that Stein became the owner of the lot by virtue of the deed. There are many conceivable ways in which that denial could be made good, notwithstanding the due execution of the deed by Mr. and Mrs. Saucier. We need not suggest them.

Neither is there anything in the objection that after granting the rehearing the chancellor gave further time and authority for taking additional testimony. He granted that authority to each party. True, there are strong reasons why chancellors should exercise great caution in such conditions; but under our practice that is left to the sound discretion of the chancellor, and is not revisable. In the present case the question arose, not on the re-examination of witnesses, but on the examination of witnesses not previously examined. See Bonner v. Young, 68 Ala. 35; Harrell v. Mitchell, 61 Ala. 270.

John B Toulme became the owner of two adjoining lots and houses in the city of Mobile, known as Nos. "143" and "145," on the south side of Dauphin street. Each lot fronted 30 feet on Dauphin street, and extended back from 120 to 130 feet. On each was a two-story brick store, and on the rear of the lots, extending across them, was a two-story brick warehouse or workshop, divided into two compartments, corresponding to the divisions of the stores in front. In the rear of each store was a kitchen, and between the stores in front, the warehouses in the rear, and the two kitchens on the sides, was an open space, court, or yard, which was common to both storehouses. We are not informed how the stores were covered,-whether by one common or connected roof or by separate roofs; nor are we informed in what manner the second floors of the houses were constructed,-whether they covered the entire area or only that part inclosed within the brick walls, to be presently described. Each store, at the time it was owned by Mr. Toulme, had brick walls entirely around it, but the side wall of No. 142, next to 145, was bricked up only one story. What, if anything, was above that, is not shown. Store No. 145 covered the entire lot, 30 feet wide, from the front, extending as far back as the store extended, inclosed entirely with an outer brick wall. The lot 143 was not so covered. The house on it extended towards 145 some 22 feet, leaving a space or alleyway nearly or quite 8 feet wide between the two stores. This extended, with the brick wall on either side, from end to end of the stores, and had double door shutters at each end. These were usually kept open in the daytime, and the alley was a common passway for persons going to and from the rear of either of the storehouses; and there was a common drain or sewer through this alleyway, which conducted the accumulated water from the common back yard to the gutter in front of the stores. At the time we are speaking of, which was prior to 1860, one Werborn was tenant of the house 143 entire, and of all save the lower story of No. 145. He was an upholsterer, and kept a furniture store. In August, 1860, Mr. Toulme executed his last will, and soon afterwards died. The will was probated and established during that year. By his will he devised the two lots and storehouses separately to two of his married daughters, Madeline J. Saucier and Victoire Saucier. The husband of Madeline J. died, and by a second marriage she became Mrs. Breath. The devise to Madeline J. was No. 143, describing it as "measuring thirty feet front," being the east half of said lot of land. To this devise he added the following clause: "That part now devised hath thereon a two-story brick house with a kitchen, a two-story privy, and the half of a two-story warehouse in the yard, and the right of way through an alley or passage from Dauphin street to the yard in the rear of said property." Lot and house No 145, "measuring thirty feet front on Dauphin street, and running back as the other," he devised to Victoire Saucier, and added, as part of the devise "the right of way through the alley or passage from Dauphin street to the yard, as aforesaid." Soon after the death of Mr. Toulme, Werborn became the tenant by a long lease of each of said stores, occupying the upper story of 145 as a residence, and using the entire house 143, the warehouse or workshop, and the lower story of 145, in his business as an upholsterer and furniture merchant. He continued to so occupy the two properties under renewals of lease, until a very short time before the filing of this bill, August 1, 1890. Between 1860 and 1870-probably about 1866-a very material alteration was made in the store No. 143 and the alleyway, and in the connection of the two houses. That alteration was made at the request of Mr. Werborn, and under his direction, but with the consent and at the expense of the owners of the property, the two devisees under Mr. Toulme's will. It consisted, so far as is material to this suit, in the following: The entire brick wall of No. 143 which adjoined the alleyway was taken down, and iron supporting columns were substituted in its stead; and the floor was extended entirely across the alleyway, and to the wall of 145. In this way that floor and the storeroom were made to cover the entire 30 feet. The front door of the alley was removed, and the entire space filled and closed with a costly show window; and towards the rear of...