Benner v. Junker

Opinion by

Mr. Justice Dean,

The facts of this case are fully set out in the opinion of the learned judge of the court below. There was no restriction in the deeds of the adjoining properties as to the use of the alley by either tenant: it was intended by the original owners as a common passageway for the occupants of both properties. True, when the common easement was created, both properties were dwellings; but it would be an unreasonable assumption that it was to be forever used by both only as a convenience to housekeepers; it might not unreasonably be used in the future to promote the convenience of either or both for a business not per se a nuisance, which could be carried on in buildings of such size located at that point. It is clear, however, that one occupant could not by the use of the alley so obstruct it as to prevent its reasonable use in view of the original purpose by the adjoining occupant. The court below has found as a fact that plaintiffs have not been deprived of the reasonable enjoyment of the easement by the conduct of defendant in carrying on his bakery. Taking this as a fact, the injunction to restrain him in the use of the alley was properly refused. But the evidence shows, and the court finds, that defendant does a very large business; loads from his property daily twenty-nine wagons drawn by horses, and twenty-seven push carts. As his own frontage on Locust street is too narrow for this volume of business, he practically occupies the street in front of his neighbor’s residence with his horses and vehicles and the sidewalk with his baskets, during the early hours of the day. This, the court finds is unlawful, and therefore defendant is enjoined from “ continually ” using his neighbor’s sidewalk in that manner. We think the restraining order does not go far enough. He has no more right to use the sidewalk of plaintiffs for conducting his particular business, than if the common alley way had no existence. No property owner, no matter what the necessities of his trade, has the right to use the sidewalk in front of his neighbor’s private residence for business purposes; he not only has not the right to use it continually, he has no right to use it at all for such purpose. If the front of his own property is too narrow for his expanded business, he must get a broader one, lawfully, at some other point. We, therefore, enlarge the scope of the decree by striking from the second clause of it the word “continually ” and it will then stand thus :

2. The defendant, Jules Junker, his agents, servants and employees be and they are hereby perpetually enjoined and restrained from, at any time, using the sidewalk in front of premises No. 1235 Locust street, for the purpose of loading the wagons or other vehicles used by him, and further, from using the frontage along the sidewalk of said premises as a standing place for horses and wagons used by him in conducting his said business.

The decree as thus enlarged is affirmed.