Townsend, Grace & Co. v. Epstein

Jones, J., delivered the opinion of the Court. This case presents questions of more than usual interest and importance, but we think principles enunciated in comparatively recent decisions of this Court must so far control its decision as to render the solution of these questions free from difficulty. The facts giving rise to this litigation are as follows. The appellants (who were plaintiffs below) are the owners in fee of a lot of ground fronting about forty-nine feet on the south side of Fayette street in the city of Baltimore,- and running southerly, with uneven width, back to and abutting about sixty-eight feet on a small street known as Garrett street, which runs east and west parallel with Fayette street to the north of it and with Baltimore street to the south of it.

This lot is occupied by a large building extending from street to street which is used by the appellants as a factory for the manufacture of straw goods. In this building looking out upon Garrett street are a number of windows for the admission of light to the different floors thereof. The appellee is the lessee and occupant of three parcels of ground with the buildings thereon fronting on the north side ⁵⁴⁸ of Baltimore street and extending northerly to Garrett, street, and is conducting upon these premises a large merchandising business. For the purpose of this business he has recently purchased a lot of ground lying between and abutting on Fayette and Garrett streets, fronting on the south side of the former and extending back to the north side of the latter street, and situated immediately opposite to where his premises, lying between Baltimore and Garrett streets, abut on the latter street, and to the west of the premises of the appellants.

Upon this lot he proposes to erecta six-story warehouse and to establish communication between that and the premises and buildings occupied by him on Baltimore street by a tunnel under and a structure above and across Garrett street. The tunnel has been constructed. The structure across Garrett street has also been nearly completed. This is an enclosed structure, about thirty-three feet to the west of the premises of the appellants, and is about seventeen feet above the surface of the street.

It is now connected with the building of the appellee which fronts on Baltimore street and extends back to the south side of Garrett street; is thirty feet in width, running with the latter street; and is built three and a half stories high across it to where this structure is intended to be connected on its north side with the warehouse which the appellee proposes to there erect. Before proceeding to construct this tunnel or to' erect this connecting structure, the appellee applied for and procured from the Mayor and City Council of Baltimore, after complying with all formal requirements, the passage of an ordinance purporting to grant to him the privilege and right, under regulations therein prescribed, to construct such tunnel under Garrett street and to erect an enclosed superstructure across said street to “ connect one or more floors of the premises of Jacob-Epstein on West Baltimore street * * with the corresponding floor or floors of the building or improvements to be erected by him on the south side of West Fayette street and the north side of West Garrett street.” This ordinance recited that this right was granted “ for the convenience of the public having business with Jacob Epstein.” ⁵⁴⁹ The appellants began this suit by filing a bill in equity charging in substance that this ordinance in attempting to grant to the appellee the right to build a tunnel under and a structure over Garrett street as therein provided is invalid and void ; and that the attempt made by the appellee to exercise such right is an invasion of their rights as abutting lot owners on said street. They pray that the said ordinance shall be declared invalid and inoperative and that the appellee be perpetually enjoined from digging the tunnel and from erecting the superstructure as proposed and that he be required to restore the earth removed from the tunnel and to take down and remove such part of said superstructure as had already been erected. The trial Court refused the relief prayed for by the appellants and decreed that their bill be dismissed.

Garrett street is a public street of the City of Baltimore and as such subject to the same control of the municipality as it has over all of its streets and highways. The rights of the parties to this controversy are therefore to be determined from their relation to this street as a public street or highway of the city. This being now fully conceded, and if not conceded being incontrovertibly shown, we need not undertake to trace the history of this street with a view to defining its status as involved in the present contention. The appellants in their bill based their claim to relief upon a different theory, as to this status, which, in the brief of their counsel, is practically abandoned, and in view of the proofs in the case properly so, as their rights depend upon the conditions actually existing.

Besides this, the appellants and appellee as lot holders abutting on this street claim under the same source of title and to this same source is due the dedication of the street in question, among others, as a highway to “be so deemed and taken to all intents and purposes whatever.” It would seem, therefore, that the appellants as against the appellee, can claim no greater rights in or over this street than such as belong to both parties as abutting owners upon this highway. The question, therefore, is, do these rights entitle the appellants to the relief prayed for in their bill against the ⁵⁵⁰ acts of the appellee in respect to the street in question which are therein complained of. In determining this we are to inquire what are the rights of the appellants ? Have they been injured in respect to those rights in such manner as to entitle them to a remedy against the appellee ?

If so, are they entitled to the particular remedy which they have sought in this proceeding ? That owners of lots or ground abutting upon the public streets have rights in the easement, which are valuable and are in addition to those which they have in common with the general public is recognized in our statute law which confers upon the City of Baltimore the power for laying out and closing up streets, by providing for compensation to such owners upon the closing of an adjacent street. Act 1898, chap. 123, sec. 6, sub-title “Streets, Bridges and Highways,” the same provision being formerly contained in Code, Art. 4, sec. 806, Public Local Laws. Such right of the abutting owner thus recognized, was enforced by this Court in the case of Van Witzen et al. v. Gutman, 79 Md. 405 , where it was said: “It is recognized by the statute that abutting owners have interests in the street or alley which are valuable, and that these cannot be taken for the public use without compensation.

It is believed that no one will contend that they can be taken for private use on any terms whatsoever. Certainly such a doctrine has never at any time found any toleration in this State.” In the case just referred to relief was sought against the obstruction of the public alley, there in question, so as to cut off the complaining lot holders from ingress and egress from and to another public street and to destroy the right of passage out and over said alley to this street. The obstruction of the alley was attempted by proceedings under the authority of an ordinance of the Mayor and City Council of Baltimore, providing for the closing of the alley. This Court held that the use for which the alley was authorized to be closed was not a public, but a private use and that therefore the ordinance authorizing the closing of it was void upon the ground as appears from the quotation just made that the abutting lot holders who were ⁵⁵¹ there seeking relief had valuable rights in the easement of the alley and could not be deprived, against their consent, of these rights for any but a public purpose and then only with compensation.

Now this valuable property right in the public street which this Court upheld in the case just referred to embraces something more than the mere right of passage over the surface of the street which was the right more directly involved in that case. The abutting lot holder has the right to the enjoyment of the light and air which the highway affords. To deprive him of this right would be to impair, or it might be, to destroy the comfort, enjoyment or use to be derived from the easement to which he is entitled ; and we find this recognized by very high authority. In 2 Dillon on Mun.

Corp. (4th ed.), sec. 712, it is said, “there is a large class of cases in which no recovery can be had for mere consequential injuries to adjacent property from the construction of public improvements in the streets, towns and cities, the lot owner holding subject to the right of the public to use the streets for any purpose consistent with the legitimate uses for which they were dedicated or acquired ; but lot owners have a peculiar interest in the adjacent street, viz., easements of access, light and air, which are property rights, and as such are as inviolable as the property in the lots themselves ; and they may recover from the company making such improvements such damages as they may sustain by injuries to or invasions of such easements.” Again in the case of Field v. Barling (149 Illinois, 556), 24 L. R. A. 406-9, the Court said, “it will not be necessary to cite authorities in support of the proposition that a private individual cannot appropriate to his own exclusive use a portion of the surface of a street dedicated to the public use. * * * The dedication of the strip of land for a public street embraced not only the surface of the ground, but the light and air above, and an individual has no more right to obstruct the light and air above the street than he has to obstruct the surface of the soil.” The case just cited is peculiarly apt here because it deals with facts and conditions very similar to those presented by ⁵⁵² the case at bar. We may also refer to the case of Barnett v. Johnson, 15 N. J. Eq. 481—7-8, in which the Court discusses the question whether the Morris Canal was a public highway, which being determined affirmatively, the Court in the course •of discussing the further question as to the rights of an abutting property owner in respect to light and air from this highway says, “there are * * two classes of rights, originating in necessity and in the exigencies of human affairs, springing up coeval with every public highway and which are recognized and enforced by the common law of all civilized nations. The first relates to the public passage, the second, subordinate to the first, but equally perfect and scarcely less important, relates to the adjoining owners. Among the latter is that of receiving from the public highway light and air"—and again in the course of the opinion occurs this emphatic language, “where a strip of land is declared a public highway the adjoining owner has a right to light and air from it.

The column of light and air above the road-bed whether of land or water is as much a part of the highway as the road-bed itself.” It is thus seen that the right of the abutting owner to light and air from a public highway as part and parcel of the easement is distinctly recognized in the authorities when such right has been drawn in question and it rests upon sound and obvious reason. Recognition of this right is not all at variance with the decisions, of this and other Courts of this country in regard to the doctrine of ancient lights, which hold that such doctrine is unsuited to conditions here. The case of Cherry v. Stein, 11 Md. 1 , cited and relied upon by the counsel for the appellee is an illustration of these cases. The doctrine of ancient lights that they repudiate involves an abridgment of the use which an owner can make of his own property.

It puts upon the property of one a servitude in favor of another. This is not the nature of the right to light and air from a high7 way which belongs to an abutting owner as part of the easement. This right to light and air is the distinct right of every abutting owner; and in claiming protection for it such owner is not imposing a servitude upon his neighbor’s property for ⁵⁵³ his benefit; but is only asserting his equal right with his neighbor to the enjoyment of an easement common to them both. Nor is there anything, as counsel for appellee insist, in the case of Garrett v. Janes, 65 Md. 260 , in denial of the right we are here considering.

The structure complained of in that case as interfering with the light and air from the street was erected under the authority of an Act of Assembly and an ordinance in pursuance thereof which extended and secured to all persons alike who resided within the limits designated in the ordinance the right to erect, under regulations prescribed, -“steps, porticos, or porches or other architectural ornaments to houses fronting on Mount Vernon Place.” This was a privilege in the interest of the general public and tending to the general comfort and enjoyment of the homes in the district to which the ordinance applied. The Court found that the structure complained of was one of a kind which the ordinance authorized and was therefore a lawful structure and refused to have it abated as a nuisance which it was claimed to be. We have seen now the nature and extent of the rights oí the appellants in and to the street of the obstruction of which they complain. If the public easement has been improperly and unlawfully obstructed by the appellee, then he has been guilty of creating a nuisance; and if the appellants have suffered therefrom an injury different in kind from