Williamson v. McMonagle

The Chancellor: It is clear, that the defendant has the legal title to the bed of the alley, subject to the full use of the whole of the four feet in width as an alley or passageway. It is equally clear that the structure erected in the passageway narrows the width perceptibly and substantially, and requires the users of the passageway to go through a narrow gate or [385] door. This is so clearly a violation of the established and undisputed rights of the complainants that beyond question the complainant will ultimately obtain the relief sought, viz., a removal of the obstruction. Without passing on the question whether or not the defendant has a right to maintain a gate, it is certainly clear that he has no right to maintain the gate which he has erected, because it materially narrows the width of the passageway. Speaking generally, the servient estate is not burdened with more 'than is necessary for the reasonable and proper use of the right of way acquired by the owner of the dominant estate. 3 Kent Com. 418, 420. “What is necessary for such reasonable and proper enjoyment of the way granted, and the limitations thereby imposed on the use of the land by the proprietor, depends upon the terms of the grant, the purposes for which it was made, the nature and situation of the property subject to the easement and the manner in which it has been used and occupied.” Baker v. Frick, 45 Md. 337, 341, 24 Am. Rep. 506. This cited case related to gates erected across a right of way, and it was considered a question for the jury to decide, the language of the grant not being such as to clearly exclude the use of a gate. See, also, Maxwell v. McAtee, 9 B. Mon. (Ky.) 21, 48 Am. Dec. 409, and other cases cited. The defendant urges, however, that he had a right to obstruct the passageway by erecting overhead a wind-break to prevent the rushing of wind through the alley, and that if the complainants had four feet clear in width and six feet in height, it was all that they were entitled to have, inasmuch as the right was to a use of the passageway as a foot passage. But it is uncontroverted that since the time when the alley was covered in part by the erection of the building on the defendant’s land, many years have passed with no change in the height of the way. This is evidence to show the extent and character of the right of the owner of the dominant tenant; and also to show that to decrease the height of the passageway by erecting across the alley an overhead wind-break would be an invasion of the rights of the complainant to a passageway four feet wide and twelve feet high. In the absence of some evidence, or other circumstance, than have been produced, or pointed out, the [386] Chancellor is unable to say that six feet is sufficient and reasonable height for the passageway. Therefore it must be held that the overhead part of the structure was erected in violation of the rights of the complainants. The complainants ask that the injunction to be granted pendente lite, even on the hearing on ex parte affidavits, should be mandatory, and should require the defendant to remove the whole obstruction. Pieliminary injunctions should not generally be mandatory, and should be so framed as to do no more than preserve the status quo pending the decision of the cause at the final hearing on proofs taken. This subject matter was so fully considered recently by Chancellor Nicholson in Tebo, et al., v. Hazel, et al., 74 Atl. 841, that it is not necessary to do so here. The Chancellor in his opinion quoted the language of Chancellor Zabriskie in the case of Rogers, etc., Works v. Erie R. R. Co., 20 N. J. Eq. 379, to the effect that a recognized exception to the general rule exists where an easement is obstructed; for there the maintenance of the structure prevents the enjoyment of the right, and its removal is ordered as part of the means of restraining the defendant from interfering with the enjoyment of the right. An obstruction which effects the very injury, which will ultimately be remedied, should be removed by a preliminary injunction. Black v. Good Intent, etc., 31 La. Ann. 497. Indeed, the principle is recognized in other cases cited by Chancellor Nicholson in the case above referred to, and seems sound. There is the further recognized limitation on the use of a preliminary injunction, that the right of the complainant should be “so clear that the denial of the right must be either captious or unconscionable.” West Side, etc., Co. v. Consolidated Subway, etc., 87 App. Div. 550, 551, 84 N. Y. Supp. 1052, 1053. Indeed, the complainants’ counsel calls attention to a cause in this Court in this County (Fitzpatrick v. Beggs, Chy. Record L, Vol. 2, p. 481, and Chy. Record M, Vol. 2, p. 85, etc.), wherein such a writ was awarded to remove an obstruction to an alley pendente lite. In the case now before this Court it seems clear that the complainants áre now entitled to an order in effect requiring [387] the removal of the whole of the structure erected in the covered part of the alley, even though it be a mandatory preliminary injunction, because they have shown a clear right, undisputed by any contrary evidence, to an alley at least four feet wide and, where now covered by the building, twelve feet high, and this clear right the structure violates. The defendant effects an interference with the rights of the complainants by continuing the structure erected by him, and should, even in limine and pendente lite, be required to remove it. When this has been done the parties can have their respective rights determined without either being oppressed or injured. A bond with surety will be required of the complainants, and if the defendant eventually establishes his right to obstruct the alley by his wind-break he will have a way to obtain reimbursement for his losses in removing the obstruction. Let an order be entered accordingly.' In accordance with the foregoing opinion, the following order was entered: “And Now, to wit, this twenty-ninth day of April, A. D. 1912, the rule to show cause why a preliminary injunction should not be ordered as prayed for in the Bill of Complaint in this cause having been argued by counsel and considered by the Chancellor, It is Ordered and Decreed that a preliminary injunction do issue, restraining the defendant from interrupting or interfering with the right of way and easement of Lewis S. Williamson and Francis H. Williamson, the complainants, as prayed for in said Bill of Complaint, and in accordance with the opinion of the Court filed in said cause, until the further order of the Chancellor, upon the said complainants entering into bond, with surety, in the sum of two hundred dollars ($200), as required by the rules and practice of this Court; * * * Note. In preparing this order, the form of that used in the case of Fitzpatrick v. Beggs was followed; and after a hearing upon bill and answer under Rule 29a, a perpetual injunction was awarded.