Appeal of Hacke & Hugus , 1882 Pa. LEXIS 244 ( 1882 )

Mr. Justice Trunkey

delivered the opinion of the court, October 25th 1882.

That Thomas Brown is the owner of lot No. 106 Market street, with the free and common use of an alley four feet wide and ten feet high, is admitted. His title is by deed. He leased the premises to Lauer & Bro., for the term of ten years, from the 1st April 1869. They, by agreement, released unto Hache ail their right to the said alley and alloAved him to close up the same during the continuance of said lease; and Hache covenanted that, “at the expiration of said Lauer’s lease, the said alley is to be opened by said Hache, his heirs or assigns.”

The appellants claim no right to keep the alley closed except as granted in said agreement. Lauer & Bro. had an interest, a title, at the time of making that grant, which would end on April 1st 1879, nothing more; and Hacke bound himself to open the alley when that title expired. There is no condition in their contract that if Lauer and Bro. should hold over, or acquire another term, that Hacke’s performance of his covenant should be postponed.

After the making of said agreement, Brown gave Lauer & Bro. another term of three years, by extending all the conditions and covenants of the first lease for said time. Their present right to the use of the alley is the same Brown would have, if in possession of the lot. This right is clear and not doubtful. There needs no action at law to determine it. Keference to the record of the judgment in favor of Lauer & Bro. against Hacke for damages, caused by obstructions in the way prior to said permissive grant, can make the right no clearer. Hacke’s title to his own lot is subject to the way; but the appellants say, “ For such injury the law gives a full and adequate remedy. For the relief of such injury equity has no jurisdiction.”

It has long been settled that nuisances to rights of way are one of the classes of cases in which the equitable remedy by injunction may be sought. This was established in England, and accepted as a rule in this country. No case has been cited where it was denied or doubted in this state. Its existence has been recognized. The dictum is, that the right should be clear to warrant a decree and injunction to compel the keeping open of a way, and if the right be doubtful, a chancellor will pause until it be established by law: King v. McCully, 38 Pa. St. 76. In Maryland, parties are entitled to such remedy, and a defendant who has obstructed the plaintiffs’ right of way over the defendants’ land will be restrained from further obstructing the way: Shipley v. Caples, 17 Md. 179.

This right of way is founded upon contract, the grant being shown by the respective deeds under which Brown and Hacke hold their lots. The owner has a right to its enjoyment in the mode and form stipulated for in the deeds. The mere fact that the appellants prevent such enjoyment is sufficient ground for interference of the court by injunction. It is not necessary that the owner should prove damage to entitle him to his property. Like rule applies as if the right existed by covenant directly between Brown and Hacke, and m such case when the covenant is of such nature that it can, consistently with the principles of equity, be specifically enforced, -the court will not, unless under very exceptional circumstances, take into consideration the comparative injury to the parties from granting or withholding the injunction: Kerr’s Inj. in Eq. 430. The obstruction of a way by the owner of the land, differs widely from the maintaining of a mill or factory which is in itself lawful, but by its noise, fumes or odors, becomes a private imisance to a person in the vicinity. -In the latter ease the question of irreparable damage enters, and often a court of equity will not interfere: Richards’ Appeal, 57 Pa. St. 105. The doctrine of that case applies to many other kinds of business; but not where a man buys land subject to an easement, or grants an easement. He cannot appropriate such property against the owner’s will and say, I will compensate him in damages. A judgment for damages does not transfer the plaintiff's property in the way, to the defendant, as would a judgment in trover or trespass for taking goods. Nor will the law restore enjoyment to the owner. He may have repeated actions for damages, and neither gain enjoyment nor lose his right thereto. The law does not offer an adequate remedy. lie is entitled to a remedy that will restore him to enjoyment, and is not confined to actions at law for damages resulting from obstructions.

Decree affirmed, and appeal dismissed at the cost of appellants.