Taylor v. Sauer

40 Pa. Super. 229, 1909 Pa. Super. LEXIS 595

• Court: Superior Court of Pennsylvania
• Decided: July 14, 1909
• Docket: Appeal, No. 198
• Status: Published

Opinion

Opinion by

Henderson, J.,

That a preliminary injunction may be made mandatory is shown by many authorities: Cooke v. Boynton, 135 Pa. 102; Black Lick Mfg. Co. v. Gas Co., 139 Pa. 448; Fredericks v. Huber, 180 Pa. 572; Whiteman v. Gas Co., 27 W. N. C. 205; Liggett v. Kaufman, 17 Pa. Superior Ct. 631; Washington Boro. v. Steiner, 19 Pa. Superior Ct. 498; Whitecar v. Michenor, 37 N. J. Eq. 6; Broome v. Telephone Co., 42 N. J. Eq. 141; Toledo, etc., Ry. Co. v. Penna. Co., 54 Fed. Repr. 730; Central Trust Co. v. Moran, 56 Minn. 188; Van Zile, Equity, sec. 401. The writ is only granted where the right is clear; where irreparable injury is likely to result or where the status quo between the parties should be restored. This status was said in Fredericks v. Huber, 180 Pa. 572, to be the last actual, peaceable, uncontested status which preceded the controversy. The practice in many instances of anticipating the action of courts of equity and acquiring a position of advantage against the rights of innocent parties rendered it necessary that the rule as to mandatory injunctions be extended to apply to such cases in order that the courts might not seem to reward wrongdoers who were diligent. If the defendants here are within the class referred to, the action of the court was in accord with the principle stated. That the plaintiff was in peaceable possession of the premises occupied by him and that all of the windows of the tenement which he occupied fronting on Broad street were practically closed up is clearly established. It is likewise shown that the act of the defendants was without any pretense of right. It was not alleged in the answer filed nor in the testimony of the defendants at the preliminary hearing that they had any legal warrant for closing up these windows. Their conduct was, therefore, inexcusable. Its effect was to exclude light and air from the plaintiff's home and to shut off his view along the street. An important part of his right of view was the opportunity to observe the numerous exhibitions and parades which constituted the chief features of the celebration held in the city that week. The comfort and enjoyment of the plaintiff and his family were greatly impaired if not destroyed and the injury thus received was of a kind which could not adequately be compensated in damages. It would be difficult to develop a theory on which a jury would be able to say what pecuniary compensation one should have for the loss of light, free circulation of air and the privilege of viewing unusual spectacles presented from day to day on the avenue in front of his residence. There was evidence, moreover, that the plaintiff was induced by representations of the defendants to assume that there would be no interference with the part of the building which he occupied nor any obstruction of his windows, and that the stand was erected in one day during his absence from home after he had notified the defendants not to build in front of his windows. The stand was erected for the profit of the defendant, Sauer, and one Burer who had leased the privilege from Truitt, the other defendant, who occupied the first floor of the building. It was contended on the appeal that this injunction could not be lawfully granted and that the plaintiff’s only remedy is by an action at law. We are unwilling to concur in this proposition. It is one of the exceptional cases where the defendants were wholly without right, where the title of the plaintiff is clear and where the status quo was changed by the defendants in the absence of the plaintiff after he had been led to believe that there would be no interference with his rights. He was, therefore, entitled to be restored to the condition existing before the stand was erected in front of his windows. Moreover, the structure put up was clearly a nuisance. It interfered with the comfortable enjoyment of the premises and if permanently there would probably have rendered his rooms untenantable. True, it is said that the structure was temporary and was to be taken down at the end of the celebration and that, therefore, there was not jurisdiction in equity to abate the nuisance. On the facts as presented we are not willing to say that the plaintiff must suffer this wrong and resort to the slow process of an action at law for his remedy. Such a proceeding would not furnish adequate relief, and inasmuch as the defendants were without excuse and were heard by themselves and their counsel after their answer was filed no substantial reason appears why the decree should not have been made as presented on the record.

It is said that one of the parties really interested in the stand was not made a defendant. That was because he was not known to have been a partner in the enterprise. However, he had notice of the proceeding, was called as a witness and so far as has been shown is not objecting. His name can be added as a party defendant if that is necessary.

The specifications of error are overruled and the appeal dismissed at the cost of the appellants.