Bryant v. Sholars

The opinion of the court was delivered by Nicholls, C. J. Plaintiffs alleged that they were the owners of certain described property fronting on Philip street. That adjoining the same was a portion of ground forming the corner of Prytania and Philip streets, owned by the defendants. That on the line separating the said property there was a party fence and upon the property of the Messrs. Sholars are located a two-story shed-and other sheds. In the two story shed are placed living rooms of some kind in the upper story. That this two-story shed was built directly upon the line of the property of petitioner, and had always been without any openings save one small opening for the admission of light, and through which no view of petitioners’ property could be obtained; that the wall that adjoined petitioners’ property on this shed was, as petitioner believed and had reason to presume, and had always been, a party wall, but, that in order to avoid any contentions upon the score as to whether or not it was a party wall within the contemplation of law, petitioner had for greater certainty tendered to said Dennis M. Sholars and Allan Sholars, for the Messrs. Sholars, the sum of forty dollars ($40) for one-half the value of this wall, which forty dollars petitioner believed to be a fair compensation for one’-half the value of said wall, as she had been informed by competent persons versed in the values of such walls; and that said tender had been refused by the said D. M. and Allan Sholars for the Messrs. Sholars; that she had made the said tender in order to ensure to herself, and the future owner or owners of the properties, the rights of her interests in said wall as fixed by law; that on or about thcr 28th day of September, 1899, defendants, without lawful authority, or without securing from petitioner permission therefor, undertook to entinto the said wall three openings or windows for the living rooms of the upper story which gave to the defendants a full view upon petition [788] er’s property and into petitioner’s house; and immediately upon their undertaking to cut those openings petitioner made a protest to the defendants concerning the placing of openings in this wall which had been always intact, with the reservation above set forth. She represented to them the inconvenience that would result to her and to her property, but the defendants persisted in cutting the said openings despite petitioner’s protests and objections thereto; that petitioner went further and was willing to make to the defendants concessions for venitilation if they would close from view of petitioner’s property the said opening by placing therein such stationary blinds as were suggested by petitioner, through her attorneys; that the defendants, having accepted these conditions with petitioner’s attorneys, and having agreed to put in the stationary blinds as set forth by petitioner’s attorneys, asked for delay wherein to consúmate the agreement amicably and to the satisfaction of petitioner and her attorneys, but, subsequently, informed petitioner’s attorneys that they declined to carry out the agreement they had verbally entered into with petitioner’s attorneys, and declined to put in the stationary blinds as set forth and previously agreed on by them, and they aggravatingly and unlawfully persisted in maintaining .the openings as originally fixed by them, disregarding petitioner’s convenience or her rights in and to the said wall. That, finding all attempts to an amicable solution of the difficulty without avail, petitioner, in an abundance of caution, made to the defendants the tender of forty dollars for one-lialf the value of said wall as above set forth which tender had been absolutely and irrevocably refused by the defendants. That this tender was made after due notice given to the defendants, on the 29th of November, 1899, and refused by the defendants absolutely; that the damage, inconvenience and injury that resulted to petitioner by the said illegal maintenance by defendants of the openings referred to amounted to more than two thousand dollars ($2000), exclusive of interest; that the injury was irreparable to petitioner’s property as well by the right of view that was granted thereon as by the view into the openings made by the defendants. That a writ of injunction was necessary to protect petitioner’s rights in the premises; because petitioner■ was disturbed in the actual and real enjoyment of her property and of the real rights in and to that property; and because the continuance of the acts of the defendants would result — had already resulted- — irreparable injury to petitioner [789] and to petitioner’s property, which said property exceeded in value five thousand dollars. In view of the premises, she prayed that a writ of injunction issue against defendants, the owners of the property adjoining, as set forth in the petition; first, commanding them to recognize petitioner’s rights as half owner of that wall; that in the event that the court should declare that petitioner was not already half owñer of that wall, then, commanding the defendants to accept the forty dollars tendered by petitioner, and that it be decreed thereafter to be a party wall owned in common by petitioner and the said defendants. Second, that the defendants be enjoined from maintaining the openings set forth in the petition, and that they be ordered to close the same within such time and terms as might be fixed by the court, and to keep the same closed entirely, placing the said wall in precisely and identically the same condition as found by said defendants at the time they purchased said property, and before they placed the openings there. That the said injunction-be maintained and made perpetual; that the defendants be cited to answer and after due proceedings had there be judgment in favor of petitioner, and against the defendants, decreeing the said wall to be a party wall, and commanding the defendants to close the openings as prayed for, and for all general and equitable relief. After some intermediate exceptions and proceedings unnecessary to recite defendants answered, under benefit and reservation of the exceptions, they had already pleaded, further excepting that the demands in plaintiffs’ petition were inconsistent and could not be maintained in the same action. That the action for the half of the wall and the ground on which it was situated should be brought separately from and prior to the action to close the opening and could not be urged by way of injunction. That the injunction compelling defendants to close the opening could not be granted because plaintiffs were not part owners of the wall and the soil on which it rested, and did not seek to be so decreed. Still insisting on all exceptions and motions before filed and not waiving any of their rights thereunder defendants, answering, denied all and singular the allegations contained in plaintiff’s petition. Defendants admitted that they were tendered by plaintiffs forty dollars ($40) alleged to be the value of one-half of the wall, but specially denied that the forty dollars ($40) so tendered was the value of one-half of the wall. Defendants averred that, as a consequence of the illegal issuance of the injunction, they had been put to great trouble and expense and [790] had been compelled to employ attorneys to defend the action; that the expense and damage resulting amounted to seven hundred and fifty dollars ($7S0). In view of the premises they prayed that plaintiffs’ suit be dismissed at their cost; that the preliminary order of injunction be set aside, and for judgment against plaintiffs for seven hundred and fifty dollars ($780) damages, and for all costs and for general relief. The court rendered judgment in favor of the plaintiff, Mrs. Sarah Bryant, wife of Frank Bryant, and against the defendants, perpetuating the injunction which had issued in the case to close the opening in the wall owned by the defendants, reserving plaintiff’s right at any time to have the two story shed removed entirely from her property. After this judgment was rendered, but before it had been signed, defendants filed a plea of prescription, averring that they and the authors of their title had beeh in the open, continuous and uninterrupted possession of the soil upon which the wall in question rested for more than thirty years. They, therefore, set up in bar of plaintiff’s right to recover the prescription of thirty years. The court refused to entertain this plea on the ground that it was as a substantive plea set up too late, but permitted the defendants to set it up in a motion for a new trial. Defendants applied for a new trial on the ground that the judgment was contrary to law and the evidence in this, to-wit: First — That the court was without jurisdiction ratione materiae, the value of the- wall in question, as shown by the pleadings and proof, being eighty dollars ($80), and the one-half ownership of said wall being the issue before the court. Second-DIhat the defendants and the authors of defendants’ title had acquired by thirty years prescription the soil alleged to be the property of plaintiffs on which the wall in part rested, and which, by reason of plaintiff’s alleged ownership, was made the basis of the judgment rendered. Third — That if said soil had not been acquired by defendants and the authors of defendants’ title, plaintiffs were not entitled to the remedy afforded by the judgment rendered herein, on the further ground that no such right was granted her by law, and for this reason that she was especially denied such right by Article 488 of the O. O. and the decision of the Supreme Court in 11 Ann. 465, and for the further reason) that she was specially given other rights and remedies in the [791] premises by Article 508 of the O. O. and 26 Ann. page 366, and it was tp these she must look for relief. Fourth — That the judgment was unauthorized, being predicated on an issue not before the court and afforded plaintiffs other and further and different relief than that prayed for or alleged to be her due. The court overruled the motion and signed the judgment, and defendants appealed. Plaintiffs moved to dismiss the appeal on the ground that — ■ First — -Because, if $2000 is the amount involved in this appeal, the bond is not such as is required for a suspensive appeal, and, as a suspensive appeal, it should be dismissed. No motion having been made for any other kind of appeal. Second — If it be claimed that no specific amount was involved, then the Supreme Court has no appellate jurisdiction. On Motion to Dismiss. Had the plaintiff in this case been east in the District) Court, she would have been entitled, under her pleadings and prayer, to an appeal to the Supreme Court. It is a rule, subject to some exceptions, that where a plaintiff, if defeated on an asserted cause of action, would have had a right to appeal to this court, the defendant, if defeated on that same cause of action, would be entitled to a like appeal. The motion to dismiss is refused and the appeal maintained.