Levenson & Zenitz, Inc. v. Bonaparte

Stockbridge, J., delivered the opinion of the Court. This proceeding is an attempt to’ obtain by means of an. injunction the discontinuance of an existing trespass. There has been no proceeding at law for the ascertainment of the fact of the trespass, nor any damages recovered for the invasion complained of. The bill is not that the continuance of the trespass shall be enjoined, pending the action of a Court of law, but that substantive and permanent relief shall be given to the plaintiff by both mandatory and prohibitive injunction.

It is a familiar and well established rule of law, both in this and other States, that while for a single act of trespass upon real property equity is without judisdiction, where the ⁶³⁷ effect of that trespass will result in causing irreparable mischief or ruin, or reach to the very substance and value of the estate, operating to. the destruction of it in the character in which it is enjoyed, that equity will intervene. White v. Flannigain, 1 Md. 525 ; Balto. Belt R. R. v. Lee, 75 Md. 596 ; Long v. Ragan, 94 Md. 462 . In many of the cases, as in White v. Flannigain , it is either said or clearly intimated, that any given case may present facts of so1 peculiar a nature as to justify the intervention of equity.

In other words, that each case to some extent at least is to be controlled by the peculiar circumstances which give rise to it. Under these conditions in order to reach a proper determination there must be a clear understanding of the facts of which the present suit is the outgrowth. The appellees, in this, case were and arei the owners of a lot of ground and improvements on the west side of Frederick street, north of Baltimore street. The lot did not run through to Gay street, and at the time when they acquired title the improvements consisted of an old dwelling, which had some time previously been converted into, a store.

Adjoining the appellees’ lot on the north was one, the legal title to which is said to he in the appellant, and which for the sake of brevity will hereafter be spoken of as the Bevenson lot. This lot was improved by a large building .running through from Frederick street to Gay street, designated as 77o. 6 Frederick street and STo. 3 77. Gay street. The improvements on it consisted of a large furniture factory and warehouse.

Some time after the appellees acquired their lot, the previously existing improvements were pulled down, and a new building four stories in height erected. This building did not cover the entire lot of the appellees, hut left at its northwest corner an open area or light-well for the purpose of light and ventilation. The lot- of the appellees is shown in the accompanying diagram, the shaded portion presenting the improved part of the lot: ⁶³⁸ Baltimora Street In rebuilding the appellees put up their own independent-wall upon the north side of their improvement, such wall extending westerly from Frederick street only until it-reached the open area or light well shown on the plat. In order to obtain sufficient space for their large and apparently increasing' business, the appellant, the business of which was at that time carried on by a firm instead of a corporation, rented from the appellees the portion of their building above the first floor, and the appellees agreed for an increased rental to place an additional story upon their building, making it five instead of four stories.

The appellant’s predecessor finding that there was much need for an elevator in connection with their business, an eleyator was accordingly installed in a concrete structure, located in what had heretofore been the area-way of the appellee’s lot, and openings giving access to the elevator appear to have been constructed both from the premises No. 4 and No. 6 Frederick street. In erecting this concrete structure the ⁶³⁹ appellees did not continue their independent wall westwardly from the point to which it had been built at the time of their rebuilding, so that the concrete structure had walls of the defendant on the east and south, a concrete wall on the west, and nothing* save the Levenson wall on the north. In the latter part of 1906 or the beginning of 1907 Levenson & Zenitz approached the representative of the appellees, asking and urging the installation of a sprinkler system for Ho. 4 Frederick street, as a means of reducing the cost of insurance. After some negotiations with regard to details it was agreed on behalf of the appellees to install such a system and the execution of the work was entrusted to the General Fire Extinguisher Company, recommended by Levenson & Zenitz, and the work done under its supervision and direction.

In addition to the piping through the building for the sprinklers, the work involved the construction of a foundation upon which were rested certain uprights to a platform, on which was placed a circular tank of large capacity, and this was connected by pipes with the sprinkler system below. Levenson & Zenitz continued as the tenant of the appellees until the 1st May, 1915, or 8 years after the installation of the sprinkler system. During all of this time there was no complaint or suggestion even of any encroachment by the appellees upon the property lying to the north of their lot. During those eight years Levenson & Zenitz operated the elevator in the concrete building, used one of the rooms for storage of varnishes and the performance of certain processes conneded with the manufacture of furniture.

Shortly after moving out they claimed to have discovered for the first time that the northern foundation wall for the tank had been placed upon the wall of ETo. 6 and not of ho. 4, and that the large circular tank extended over the roof of ho. 6 in varying distances; and still later, during the trial of the case in the Circuit Court that the roof of the concrete building likewise projected over the wall of ETo. 6. ⁶⁴⁰ The defendant, Charles J. Bonaparte, was notified of some of these encroachments, and on such notice being given disclaimed any intention to invade the property claimed by the appellant and offered to remove the same, the cost of such removal to be jointly paid for by the parties hereto upon a reasonable basis in the apportionment of the costs. The appellant insisted that it was under no obligation for any of the costs of the removal and that they must be paid for solely by the appellees, and this not having been done the present proceeding was instituted. The contention of the • appellant rests upon the invasion of its property to the extent already set, forth and this is practically a concessum in the cáse. The position of the appellees is: First, that the appellant has not proved its title;'second, estoppel; third, laches; and fourth, that if they are compellable to remove the present encroachment, they are entitled to be reimbursed a reasonable proportion of the expense of doing the work.

It is true that the title of the appellant is not