Lane v. Flautt

Bond, C. J., delivered the opinion of the Court. The case is one on a claim of an implied easement of light and air for one property over part of an adjacent property. On a bill in equity to restrain erection of a structure which would shut off the easement, and on an answer, and testimony taken, the court below, found the claim sustained and granted an in justión, and the respondents appeal. The properties are on the south side of Church Street in Frederick, where prior to the year 1895 there was a single dwelling with surrounding land, all of a frontage of 100 feet, owned by Mrs. Bettie Ritchie.

In about 1895, Mrs. Ritchie built on the western side of her house, and up to a dividing line drawn there, two brick dwellings; and she leased them during the remainder of her life. There was a space of five feet left between the building line of the Ritchie house, as originally built, and the dividing line drawn for the new house next to it, but Mrs. Ritchie extended the front part of her house across and over the space, and into contact with the new house, to a depth of twenty two feet; and this left the five foot space open in the rear of her property, twelve feet long. The evidence agrees that for many years, if not since 1895, the first floor of the newer house, above its basement, had a window opening out of a back parlor and looking across the five foot space. It is three feet one inch wide and seven feet high, and is close in toward the rear wall of the Ritchie front extension: to be exact, thirty-seven inches from that rear wall.

There is evidence that from 1899 until it rotted away there was a ⁶²² shutter or contrivance with slats affixed to the window sill, and leaning out over the Ritchie line to some extent, to prevent seeing directly from the newer house into a room of the Ritchie house. Above that window there is a small window high up in the room overhead, and a like .small window in the room overhead on the third floor. Their height in the rooms preserves the privacy of Ritchie house bedrooms. Further to the rear of the-newer house, in the rear wall, there is a dining room window facing south over space left by an offset in its own building, and, still further toward the rear, a pantry window facing across that space on its own side.

Mrs. Ritchie had placed mortgages on her property, and one dated September 1, 1896, on the combined properties 100 feet wide, was foreclosed in 1899, and the houses then erected, with their lots, were sold separately at the foreclosure sale; and this was the severance which, as it is contended, gave rise to the implied easement. The appellants, Lane and wife, more recent purchasers and present owners of the Ritchie property, have begun construction of an addition to the house to fill the remainder of the five foot space immediately up against the wall of the next house, now the Flautt house, to a height of three feet above the top of the window in that wall, heretofore opening on the space. And for light and air to that window they plan to construct a shaft one foot square open at the top above the window. This construction has been the subject of the injunction.

It is agreed that under law adopted in this State, if at the time of the severance of ownerships in 1899, the two properties were so arranged that the newer one was rendered necessarily dependent in any part on the other for light and air, there would be an easement for that light and air passing by implication. McTavish v. Carroll, 7 Md. 352 ; Cherry v. Stein, 11 Md. 1 ; Janes v. Jenkins, 34 Md. 1 ; Eliason v. Grove, 85 Md. 215, 227 , 36 A. 844 ; Knight v. Mitchell, 154 Md. 102 , 140 A. 74 . And as Mrs. Ritchie built that next house on the dividing line, necessarily any light and air she had provided for it ⁶²³ through its east wall must come from open space on her property, and there would be an implication of the easement for it. The case is the reverse of that in Knight v. Mitchell, supra, in which a space on the one house’s own side, in an ordinary arrangement for adjoining houses in Baltimore City, prevented an inference that there was any intention of making it dependent for light and air on open space on the other severed property.

The principal question in this case therefore, is one of fact, the question of the existence of the window in the wall of the Flautt house at the time of the severance. To this question the testimony was addressed, and there is some conflict in it. All witnesses agree