Citation Numbers: 93 Pa. Super. 296
Judges: OPINION BY GAWTHROP, J., April 16, 1928:
Filed Date: 3/13/1928
Status: Precedential
Modified Date: 1/13/2023
Argued March 13, 1928. Plaintiff owns a dwelling house situated on the north side of Market Street in the City of York, which he purchased in 1920. At that time a moving picture theatre, built in 1913, stood on the lot adjoining plaintiff's property on the east. An alley three feet six inches wide runs from Market Street northwardly between the plaintiff's house and the theatre and is used as an exit from the theatre. By plaintiff's deed for his property the land was granted together with the use of this alley which, according to the deed, "is to be in common for the use and convenience of the occupiers and owners of the premises hereby conveyed and those adjoining on the east and to be kept in repair and a gate hung in the front of said alley at their joint expense hereafter forever." The deeds to *Page 298 plaintiff's predecessors in title since 1824 contain a clause which does not differ materially from that above quoted. There is a similar provision in defendant's deed giving him the same rights in and to the alley. For many years prior to 1914 a gate which swung inward from Market Street was maintained at the front end of the alley. In 1914 soon after the building of the theatre, this gate was removed by a servant of the then occupier of plaintiff's property with the consent of the then owners of defendant's property. There was no gate at the front of the alley from 1914 to 1920, when a new gate, swinging inward, was erected by plaintiff at the same place the former gate had hung. In 1921 defendant was notified by the Department of Labor and Industry of Pennsylvania that a gate opening inward in a passage way leading from a theatre was illegal. Whereupon defendant, against the protest of plaintiff, rehung the gate so as to make it swing outward, the location of the gate being the same as theretofore. The gate as so rehung, when wide open, extends beyond the southern wall of defendant's building for a distance of two feet and four inches, and is of a height of seven feet and four inches. Plaintiff filed this bill praying that the gate be removed and replaced in the position it was in before it was re-hung by defendant. After answer filed and trial had the chancellor filed an adjudication in conformity with the Equity Rules and directed the prothonotary to enter a decree nisi, ordering that the bill be dismissed at plaintiff's costs. The court in banc dismissed the exceptions filed and affirmed the decree nisi. Plaintiff has appealed.
Three of the assignments of error complain of the chancellor's thirteenth, fourteenth and fifteenth findings of fact, which were as follows:
"The gate as now hung when wide open does not extend further beyond the northern building line of Market Street than do other projections such as *Page 299 porches and steps attached to other properties located in the immediate vicinity and along the northern building line of Market Street."
"Said gate when so swung wide open does not obstruct or bar the view eastward from the first floor of plaintiff's property; does not disfigure plaintiff's property; does not lessen its value; and does not encroach on plaintiff's light and air."
"That said gate swung outward towards Market Street does not interfere with the use of said alley by plaintiff, nor does it lessen or restrict in any way his use of said alley-way." These assignments must be dismissed because an examination of the record discloses that the findings of fact complained of are supported by ample evidence. A chancellor's findings of fact approved by the court below will be accepted if there is sufficient evidence to support them: Unger v. Edgewood Garage,
Does plaintiff have the right to have the gate swing inward and not outward? It is unnecessary to decide whether or not the parties are tenants in common of the alley. They got a right to use it which was not limited or restricted by any covenant and therefore its extent depends upon their reasonable needs as owners of the premises to which it is appendant. The alley may be used by either of them, when his property has been diverted to business purposes, with the same freedom as when it was used for a residence: Benner v. Junker,
The decree of the court below is affirmed and the appeal is dismissed at the costs of appellant.