Mulville Et Ux. v. Cooper Et Ux. , 93 Pa. Super. 139 ( 1927 )

It was admitted at the argument that no testimony had been received on the trial as to any actual interference with the plaintiffs' use of the four-foot wide common alley caused by the defendants' rain-spout occupying a space from four to six inches in diameter, adjoining their dwelling. The judge's finding that the spout was "a real and substantial infringement of plaintiffs' rights" was therefore a legal conclusion rather than a finding of fact.

There is no reasonable doubt, under the decisions, that the defendants' title extends to the middle of the alley, subject to the right of passage over the alley by the plaintiffs, the owners and occupiers of the adjoining premises: Oliver v. Ormsby,224 Pa. 564; Danner v. Elliott, 76 Pa. Super. 350; Carter v. Lebzelter, 45 Pa. Super. 478.

I am of opinion that in order to entitle them to an injunction it was incumbent on the plaintiffs to prove that the rain-spout constructed by defendants on their own land, constituted an actual and appreciable interference with the former's right of way or passage over the alley; and in the absence of such proof that the bill should have been dismissed. See Connery v. Brooke,73 Pa. 80, 83, 84; Hartman v. Fick, 167 Pa. 18; Mercantile Library Co. v. Fidelity Trust Co., 235 Pa. 5; Duross v. Singer, 224 Pa. 573, 574; National Accident Ins. Co. v. Workmen's Circle, 289 Pa. 164; Chambersburg Woolen Co. v. Hager, 66 Pa. Super. 63; Kohler v. Smith, 3 Pa. Super. 176; Ziegler v. Hoffman, 78 Pa. Super. 115.