Thruston v. Minke

• Decision Date: 03 June 1870
• Citation: 32 Md. 487
• Parties: GEORGE A. THRUSTON v. FREDERICK MINKE and JACOB HUMBIRD.
• Court: Maryland Court of Appeals

32 Md. 487

GEORGE A. THRUSTON v. FREDERICK MINKE and JACOB HUMBIRD.

Court of Appeals of Maryland

June 3, 1870

APPEAL from the Circuit Court for Allegany County, in Equity.

The case is stated in the opinion of the Court. The appellee Humbird, was made a party defendant, as being the mortgagee of the appellant for his undivided fourth part of the ground on which the hotel was erected, with other parts of the whole property, not demised to the appellee, Minke. Humbird never appeared.

The cause was argued before BARTOL, C.J., STEWART, BRENT MAULSBY, GRASON, ALVEY and ROBINSON, J.

George A. Thruston, for the appellant.

The appellant and his heirs, regarding the condition in the lease as a condition solely, can alone enforce the remedy for breach of it against the leasehold estate in the land of the tenant and of his assigns. And it does not pass to or vest in Campbell, even if the conveyance to him had not been expressly subject to its conditions. Taylor's Land and Ten., secs. 277, 280, 288, 293, 295; 4 Kent's Comm., 126.

The condition itself is an implied agreement between the parties to the lease, which can be enforced between them as such. It was a penalty restraining the injury of other property. Smith on Land. and Ten., 362, 363, (side, 281.)

The injury of the interest of one tenant in common, arising from acts done by another, not on and of the joint estate, but on the sole property of the one, and to and against the interest of the other in the joint estate, will be prevented by Courts of Equity, by injunction, where such acts are not within the usual legitimate exercise of the right of enjoyment of the estate held in common, and not done on or in the joint property. Story's Eq. Jur., sec. 916; Hawley vs. Clowes, 2 Johns. Chy. Rep., 122.

Where the injury is irreparable, particularly if not capable of perfect ascertainment of damages in money by an action at law, the Court will interfere, even in a trespass by a stranger. If the appellant had sued at law, and permitted the appellee to finish the building, the right to keep the light and ventilation unobstructed by insisting on the condition would have been irretrievably lost, and this where there is not only privity of title, but an absolute reservation and deed for it. It is not such as can be compensated in money. Here the right and title of the party claiming the injunction is not only clear, but fixed in the most solemn way known to the law. Amelung, et al. vs. Seekamp, 9 G. & J., 472.

The condition is part of the inheritance of the appellant's interest in the hotel property. Jerome, et al. vs. Ross, 7 Johns. Chy. Rep., 315, (336.)

Where there is privity of title, it is not necessary to shew irreparable mischief. George's Creek Co. vs. Detmold, 1 Md. Ch. Dec., 372.

There is privity of title between the parties, notwithstanding the conveyance of the reversion to Campbell; and the estate of the latter is only affected as he has expressly, knowingly and intentionally acquired it.

The very condition on which the lessee holds his title to the leasehold makes a direct privity of title; and his deed of agreement distinguishes from all cases quoted of trespass, waste, &c.

The appellant is not bound to show any injury at all except the violation of the agreement itself.

J. H. Gordon, for the appellee, Minke.

The bill does not present a case for an injunction. If it be a bill to prevent a trespass, it must show that the injury to be prevented would be irreparable and not capable of compensation in damages. Amelung vs. Seekamp, 9 G. & J., 472, 473, &c. White vs. Flannigan, 1 Md., 543; Canal Co. vs. Young, 3 Md., 489; Cherry vs. Stein, et al., 11 Md., 1; Geo. Creek Co. vs. Detmold, 1 Md. Ch. Dec., 371; Jerome vs. Ross, 7 John. Ch. Rep., 315; 2 Story's Eq., sec. 925; Hilliard on Injunctions, 279, 280, 281.

The bill must also state the facts that would make it appear to the Court that the injury would be irreparable, and not merely say so in general words. Carlisle vs. Stevenson, 3 Md. Ch. Dec., 499; Ches. and Ohio Canal Co. vs. Young, 3 Md., 489; Amelung vs. Seekamp, 9 G. & J., 474; 2 Story's Eq., sec. 925; Attor'y Gen'l vs. Nicholl, 16 Vesey, 338; Hilliard on Injunc., 270, 271; Green vs. Keen, 4 Md., 98.

This is not a case to prevent a multiplicity of suits; there is only one party to sue. Jerome vs. Ross, 7 John. Ch. Rep., 323, 324; Hilliard on Injunc., 280.

The appellant stood by without objection, and thereby gave an implied assent. Hilliard on Injunc., 24, sec. 43; Binney's Case, 2 Bland, 99, 104, 120; 10 Vesey, 165, 166; Birm. Canal Co. vs. Lloyd, 18 Vesey, 515.

Injunction is not a proper remedy between tenants in common. The parties being tenants in common of the hotel property, nothing but a destruction of the property by one of them would justify an injunction. Twort vs. Twort, 16 Vesey, 130, 131; Hale vs. Thomas, 7 Vesey, 589; 2 Story's Eq., sec. 916; Hawley vs. Clowes, 2 John. Ch. Rep., 122; Hilliard on Injunc., 372, 373, sec. 31; 3 Brown, 119.

There was a sufficient remedy at law. Hilliard on Injunc., ch. 1, secs. 23, 29; ch. 10, secs. 1, 2.

The answer is conclusive, unless disproved. And the evidence does not disprove it. Gelston vs. Rullman, 15 Md., 260, 267.

The appellant conveyed away all his right to Campbell before bill filed, and therefore had no right to injunction.

BARTOL C.J., delivered the opinion of the Court.

It appears from the record, that before the 24th day of October, 1867, the appellant and Frederick Minke, (the appellee,) were seized in fee as tenants in common, of a lot of ground in the town of Cumberland, on the north-west corner of Baltimore and George streets; the appellant owning one fourth, and Minke three-fourths thereof. The lot was improved by a three story building known and occupied as "St. Nicholas Hotel." The building was situated on the corner of the streets mentioned, leaving on the west thereof, a part of the lot fronting on Baltimore street, vacant or unimproved.

On the 24th day of October, 1867, the appellant leased to Minke, for the term of ninety-nine years, renewable forever, his undivided fourth part of a portion of the vacant or unimproved part of the lot; commencing at the westerly wall of the hotel and binding thereon; the parcel so leased is described in the lease, and need not be more particularly noticed here.

After describing the parcel demised, the lease contains, among others, the following provisions:

"With the privilege to said lessee, his representatives and assigns to use so much of said westerly wall of said hotel building, as binds along the first line of the property hereby demised, as a party wall, to the height of the third-story floor of said hotel building only; provided, however, and this lease is on this condition, that said lessee and his assigns shall not at any time hereafter erect, build or construct, on the part of the lot hereby demised, which fronts eleven feet on Baltimore street next to said hotel building, and runs back _____ feet in the depth, any building or tenement, any portion or part of which shall be higher than the present level of said third story floor of said hotel building; and provided further, that in using such part of said westerly wall of said hotel building as a party wall as aforesaid, the said lessee and his assigns shall not weaken or materially injure or affect the same."

The bill of complaint filed by the appellant states that the above conditions were put in the lease "for the express purpose of preventing Minke, or his assigns, from shutting up, or excluding the light from the west window in the third story hall of the main hotel building, and other windows on the west side of said hotel building, in the third story, and also to prevent Minke from building any tenement or house higher than the third story floor of said hotel building, for the space of eleven feet westerly therefrom."

And the bill charges "that Minke has directly violated and broken said condition."

That "said Minke, without any agreement on the part of the complainant, or waiver or release of said condition, and in opposition to the repeated remonstrances of the complainant, is now proceeding to erect and construct a building, and is actually constructing the same of brick, to a height several feet above the roof of the main hotel building, and shutting up the whole space of eleven feet in width on Baltimore street, for the whole depth of thirty-two and a quarter feet; by occupying the whole thereof with such building."

The bill further charges that Minke is proceeding to construct a large wooden cornice on and against the westerly wall of the hotel building, at and near the front thereof, on Baltimore street, and putting the same far over and above the roof of the main hotel building, thereby, as alleged, increasing the danger to the same in case of fire. And the effect of such violation of the conditions of the lease is alleged to be to shut out and obstruct the light and ventilation from the hall of the third story of the hotel, and greatly to injure and impair the value of the same and of the complainant's interest therein.

An injunction was issued to prevent and restrain Minke from proceeding with the construction of the proposed building, contrary to, and in violation of the covenant and conditions contained in the lease.

The appellee, Minke, answered the bill, and proof was taken, and the Circuit Court, on hearing the cause upon the pleading and proofs, passed an order dissolving the injunction. From that order the present appeal was taken.

In the progress of the case in the Court below, the fact was disclosed that the appellant, Thruston, after making the lease, on the 30th day of October, 1867, conveyed to John B H....