Williamson v. McMonagle
| Decision Date | 24 April 1912 |
| Citation | 9 Del.Ch. 380,83 A. 139 |
| Court | Court of Chancery of Delaware |
| Parties | LEWIS S. WILLIAMSON AND FRANCIS H. WILLIAMSON, v. FRANCIS MCMONAGLE |
BILL TO ENJOIN AN OBSTRUCTION TO THE USE OF AN ALLEY. The bill is to enjoin the continuance of an obstruction of an alley, to the use of which the complainants are entitled over land of the defendant, in common with the defendant. A predecessor in title of the complainant conveyed the bed of the alley to the predecessor in title of the defendant, with the privilege of building above the alley, subject to the "full, free and undisturbed use and privilege for the said Joseph Smithel [under whom the complainants are entitled], his heirs and assigns, to have and enjoy in the said passage or alley in common with the said William Smith [under whom the defendant is entitled], his heirs and assigns forever." The alley has been in continuous use for over one hundred years, and from the affidavits submitted on the hearing of the motion for a preliminary injunction it appeared to be undisputed that for at least thirty years the alley, four feet wide and twelve feet high (part of it having been built over as allowed by the deed) was so maintained unobstructed and used by the adjoining owners in common. There is no evidence that it had ever been other than as it was at the time the obstruction was erected by the defendant. Shortly before the bill was filed the defendant erected near one end a board obstruction which filled the whole end of the alley from the bottom to the top and from side to side, put a door in it about two and one-half feet wide and six feet high, and locked the door, denying to the tenant of the complainants' property use of the alley for several days. Upon threats of law suit the defendant unlocked the door and the tenant has had ingress and egress by the alley through the door, but the obstruction remains. Until the obstruction complained of was built there never had been a gate in the alley.
The cause was heard, at the return of a rule to show cause why a preliminary injunction should not be granted, on bill, ex parte affidavits and exhibits.
Ward Gray and Neary, for the complainants.
It appears that within the memory of man the alley has never been obstructed in any way, but the use of it, on the contrary, has always been full, free and undisturbed. The evidence shows that there has been a construction put upon the extent to which the alley could be used, and that has never been less than its full width of four feet and its height to where it is covered. The very circumstances surrounding the alley would indicate that it was to be used for no other purpose whatsoever, except as an alley to its full described width of four feet. The deed creating the alley provides for the only encumbrance which was in contemplation of the original parties; to wit, the building over of the house, now owned by the defendant, across the alley at the height of the second floor into the wall of the complainants' house. The expression of one sort of encumbrance would seem to exclude the permission of any other sort of encumbrance.
It is submitted that the terms of the reservation are wholly inconsistent with any structures at any point or place in the alley, whether with or without gates. The privilege reserved of any alley is "the full, free and undisturbed use and privilege". The words "free and undisturbed" taken in connection with the nature of the alley, would seem to confer the right to the use of the alley to its full width and height, and that the word "full" cannot be satisfied by any other condition. It is submitted, therefore that it is in this case, by the terms of the grant, a prohibition against the erection of any structure at any point in the alley, whether with or without gates. The obstruction, as averred by the bill and affidavits, and undisputed by the defendant, was at first absolute, inasmuch as the structure filled a section of the covered part of the alley from floor to ceiling, and the door in the structure was kept locked and the key retained by the defendant, and the passage of anybody connected with the complainants' property was forcibly prevented. After a threat of suit, the defendant unlocked the door so that persons could pass in and out through the obstruction. But the condition yet remaining it is submitted, is wholly inconsistent with the rights in the alley, secured by the deed in question, of the complainants. The alley, in its covered part, is substantially four feet in width and twelve or thirteen feet in height. About half of the width and over half of the height of the alley are absolutely and wholly obstructed, and the proper uses thereof to that extent diminished. It is respectfully submitted that the opening of the door by the defendant has not amounted to a restoration of the alley and its uses, and that the complainants are entitled to have this private nuisance abated. Mineral Springs Mfg. Co. v McCarthy, 67 Conn. 279; Patton, et al., v. Western Carolina, etc., Co., 101 N.C. 408, 8 S.E. 140; Brownell v. Dyer, 5 Mason (C.C.U.S. Rep.) 227; Devore v. Ellis, 62 Ia. 505; Williams v. Clark, 140 Mass. 238.
The right to create an alley by appropriate words, which shall be binding on the holders of the servient estate and which may be claimed by the successors in title to the owners of the right of way, scarcely needs authority. The principle, however, is stated in 14 Cyc. 1163.
A mandatory injunction is the proper remedy. Tucker v. Howard, 122 Mass. 529; Tucker v. Howard, 128 Mass. 361; Stallard v. Cushing, 76 Cal. 472; Henry v. Koch, 80 Ky. 391, 398; Rogerson v. Shepherd, 33 W.Va. 307, 10 S.E. 632; Collins v. Buffalo Furnace Co., 73 A.D. 22; St. Louis Deposit, etc., Bank v. Kennett's Estate, 101 Mo.App. 370, 74 S.W. 474; Fitzpatrick v. Beggs, Chy. Record L, Vol. 2, p. 481, Chy. Record M, Vol. 2, p. 85, etc.; Rogers Locomotive, etc., Works v. Erie Ry. Co., 20 N.J.Eq. 379.
Caleb E. Burchenal, for the defendant.
The Court will not grant a preliminary injunction, when no damage is being done, awaiting the final determination of the cause. Citizens, etc., Co. v. Camdem, etc., Co., 29 N.J.Eq. 299; Osborn v. Taylor, 5 Paige (N. Y.) 515; Bruce v. Delaware, etc., Co., 19 Barb. 371.
The injunction asked in this case is a mandatory preliminary injunction, and it is generally improper to issue such an an injunction before final hearing. 22 Cyc. 743; Delaware, etc., Co. v. Central, etc., Co., 43 N.J.Eq. 71; West Side, etc., Co. v. Consolidated, etc., Co., 87 A.D. 550; Tebo v. Hazel, 74 A. (Del. Ch.) 841.
It is a principle of law that nothing passes as incident to the grant of an easement but what is requisite to the fair enjoyment of the privilege. 3 Kent Com. 419, 420; Bean v. Coleman, 44 N.H. 539; Maxwell v. McAtee, 9 B. Mon. (48 Ky.) 20; Baker v. Frick, 45 Md. 337. The easement in this case was granted as a foot passageway and has always been used as such; and it is submitted that any use of this land by the defendant, the owner, which does not unreasonably interfere with its use as a foot passageway by said complainants does not interfere with their rights. Gates may be maintained on a right of way if not an unreasonable interference with right of passage over the same. Short v. Devine, 146 Mass. 119; Baker v. Frick, 45 Md. 337; Green v. Goff, 153 Ill. 534; Phillips v. Dressler, 122 Ind. 414, 24 N.E. 226; Houpes v. Alderson, 22 Ia. 160; Whaley v. Jarrett, 69 Wis. 613, 34 N.W. 727; Connery v. Brooke, 73 Pa. St. 80; Maxwell v. McAtee, 48 Ky. 20.
The complainants clearly cannot ask to have the whole of the wood structure removed, and if any, then only so much as interferes with the use of the alley as a means of ingress and egress, as a passageway refers only to the surface of the passageway and not to its height; and if it is high enough not to interfere with the passage, then the defendant has a right to erect a wind-break above the passage way. Gerrish v....
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