
    *Berkeley v. Smith & als.
    November Term, 1876,
    Richmond.
    Trespassers. — J by his will in 1845 gives to his son S a store-house and lot, together with the east side or half of the privy situate on the adjoining lot west; and by a codicil he gives to his son W the said adjoining lot; and in 1848 W sold his lot to B subject to the rights of the owner of the lot given to S, to the east side or half of the privy. The store-Rouse of S extended Rack 70 feet to Ris Rack line; tRat of W extended only aRout 55 feet, leaving a vacant space, on which tRe privy was located; and tRere was a door in tRe side of S’s Rouse entering into tRis vacant space witR ligRts in tRe door. B Reing tRe tenant of S, and on tRe deatR of Ris cRildren sRut up tRe said door, extended Ris store-Rouse to Ris Rack line, one story RigR, witR a flat roof, and Ruilt a privy upon tRe roof. Held;
    a. Same — Relief against in Equity. — TRe title of tRe cRildren of S to the door in tRe wall of their store and to the east half of the privy Reing unquestionable, they may without proceeding at law to establish their right, go at once into equity to compel the removal of the oRstructions.
    2. Same — Compensation against. — If a just compensation may Re made to the plaintiffs for the injury done to their property and rights, the court may ascertain and decree such compensation, instead of having the oRstructions removed.
    This was an appeal from the decree of the corporation court of Alexandria, in a suit in which Hesselius Smith and others, children and heirs at law of Sidney Smith, were plaintiffs, and William N. Berkeley was defendant. The object of the suit was to compel the defendant to remove an addition to his store-house which adjoined a store-house of the plaintiffs, and to repair other injuries he had done to their property. The cause came on to be heard on the 13th of November *1872, when the court held that the plaintiffs were entitled to the relief they asked for, and made a decree that the defendant be perpetually restrained and enjoined from continuing- the erections and obstructions set forth in the bill, and that he forthwith remove them, and restore the said premises to the condition in which they were before said erections and obstructions were made by him, &c. R'rom this decree Berkley applied to this court for an appeal; which was allowed. The case is stated by Judge Anderson in his opinion.
    Beach, for the appellant.
    Claughton, for the appellees.
   Anderson, J.

The appellees, who were plaintiffs in the court below, have title in fee to the store-house and lot at the intersection of King and Tairfax streets, in the city of Alexandria, which may be described as the south-west corner lot. Their storehouse covers the entire area of the lot, extending back from King’s street to its rear boundary line. The appellant owns the adjoining lot west, which is of the same depth, each extending back seventy feet; but the store-house upon the appellant’s lot did not extend back from King’s street the whole depth of the lot, so that there was an open space in the rear of his store-house of twelve by twenty feet, which was unoccupied, except by a privy. Both lots were formerly owned by Joseph Smith, and were as thus described, when by his will bearing date January 1st, 184S, he devised them as follows: the corner house and lot, together with the east side or half of the privy, situate on the adjoining lot west to his son William, in trust for his son Sidney; *and by a codicil to his will, the said adjoining lot to his son William, who afterwards, in the year 1848, sold and conveyed the same to the appellant subject to the rights of the owner of the corner lot to the east side or half of the privy. By the death of Sidney Smith, the appellees, who are his heirs at law, became invested with title to the corner lot by descent. The appellant, in the lifetime of Joseph Smith, held possession of the corner store-house and lot, and continued possession thereof as tenant to Sidney Smith; and after his death he continued to hold possession thereof as tenant to his heirs, the appellees, or their guardian, they being infants. And during his tenancy, and the infancy of the appellees, he removed the privy, blocked up the door on the west side of their storehouse, which opened on the space in the rear of his store-house, and through which they had access to the privy, and which afforded light and air to their store-house, and extended the first story of his storehouse to the rear line of his lot, so as to cover the entire space, which he covered with a flat roof, upon which he erected another privy, which could be approached from the second story of both store-houses, over the roof of his store extension. To give access to the privy, to the tenant of the corner store-house, though it is not alleged or directly proved, it would seem that he must necessarily have to cut a door through the wall of the appellee’s storehouse from the second story through which to enter upon the flat roof, as there does not appear from the diagram exhibited with the record, or by any evidence in the cause, that there was a door or any opening there before.

The plaintiffs allege in their bill, that they were wholly ignorant of the changes which the appellant *had made in their property, and the invasion of their rights, until the year 1866, and that on the 2nd of April of that year they instituted an action on the case against him, to recover damages therefor, and obtained a verdict for one cent damages, and a judgment for costs — the court certifying that the object of this suit was to try a right, as well as to recover damages. This judgment was affirmed by the district court of appeals, upon a writ of error which was awarded to the defendant. The defendant continuing the nuisance afterwards, the plaintiffs instituted a second action of trespass on the case against him, which resulted in a verdict for one cent damages, and a judgment in their favor for costs, and damages.

The plaintiffs claim, that their rights herein alleged to have been violated by the appellant, and the fact of their violation, have been determined by the said action at law, and cannot now be questioned. The appellant insists that they have not been determined by those actions. The court is of opinion, that the verdict of the jury being general, and responsive to the issue upon all the counts, is a finding in favor of the plaintiffs on all of them, which is confirmed by the judgment of the court, and establishes the plaintiff’s right to the east half of the privy, to the door in the west side of their store-house, and the right of egress and ingress through it, to and from the east side of the privy, over the appellant’s yard, and to the communication of light and air through it to their store-room, which rights have been violated by the appellant, by his acts and doings aforesaid.

But if the appellee’s rights were not clearly established by the judgments at law, they are clearly set out and proved in this chancery suit; and the court is of opinion that the appellees, their right being clear, *might have pursued their remedy in a court of equity without first resorting to a court of law to establish their right. (2 Eden on Injunctions, p. 273; Iyaw of Nuisance, Wood, (j 777, and cases cited.)

It might be conceded, that, the extension by the appellant of his store-house over the open space in the rear of it and raising the privy to a level with -the second story of the appellees’ store-house, would not be a substantial violation of the appellees’ right to the east half óf the privy, provided he had made the change, and given the appel-lees a commodious and convenient access to it, from their second story, without violating any other of their rights.

But this he has not done, and could not do. What right had the appellant to block up the appellees’ door-way in their own building, and thereby exclude light and air from -their store-room? ■ What right had he to deprive them of egress and ingress through their door, as they had enjoyed it before he purchased his lot? What right had he to cut a door through the wall of their house, as he probably did, to give access from the second story to the fiat roof of his store extension, without their consent?

Thus it appears that whilst the raising of the privy to a higher level by the appellant may not have been in itself a substantial violation of the plaintiffs’ right, provided he gave them as convenient a way of access to it over the roof of the extension of his store-house from the second story of their store-house, the execution of the change involved him necessarily in the violation of other important unquestionable rights of the plaintiffs, which seems to be essential to the comfortable enjoyment of their property.

, The appellant purchased his store-house and lot when subject to those rights of the plaintiffs, which *must have diminished the value of the property he purchased, and consequently the price he had to pay for it. By the improvements he has made to his store-house he has added to its value. He has increased the annual rental of it, according, to thé proof in the cause, from $50 the first year to $100 or $150 subsequently. But he has done so at the expense of the plaintiffs, by a reduction of the annual rental value of their property, according to the proofs, from $50 to $75, and to their permanent damage of five or six hundred dollars. And those changes he made in violation of their manifest rights and without their consent, and whilst he was in possession of their property as tenant thereof, and they were in their minority and incapable of protecting their rights. He says they were made with the knowledge and approbation of their guardian. If that were proved it could not avail him, as the guardian had no authority to consent to-such impairment of the value of his ward’s property. The appellant had no right to enhance the value of his property by invading the rights of the plaintiffs, and detracting from the value of their property, as the record clearly shows he has done. He may have done it with no wilful design to injure the plaintiffs, or to trample on their rights, and without considering that he was doing them a wrong and injury, as is very probable; but, nevertheless, he has invaded their'substantial rights, and done them serious permanent damage.

And now as to the remedy. Mr. Justice Story says, when a party builds so near the house of another as to darken his windows against the clear rights of the latter, either by contract or ancient possession (in this case the appellant did not build so near as to merely darken the plaintiffs’ windows, but actually blocked up the door in which were lights in the plaintiffs’ house, *so as entirely to exclude the light and air), in such case the eminent jurist says courts of equity will interfere by injunction to prevent the nuisance, as well as to remedy it if already done, although an action for damages would lie at law, for the latter can in no just sense be deemed an adequate relief in such case. The injury is material, and operates daily to destroy or diminish the comfort and use of the neighboring house, and the remedy by multiplicity of actions, for the continuance of it, would furnish no substantial compensation. 2 Stor. Eq. Jur., § 926.

Where ancient lights have existed for upward of twenty years undisturbed, the owner of an adjoining lot has no right to obstruct them, and, particularly so, if the adjoining lot was owned by the person who built the house ■ containing the ancient lights at the time of building, and was subsequently sold by him. Eden on Injunctions, p. 269, note 1, citing Robeson v. Pittenger, 1 Green’s Ch. R. 57.

Injunction will be awarded in such cases 'where the windows are ancient lights, or where the act is in violation of some agreement express or implied. (2 Eden on Injunctions, p. 269, note (1), and cases cited.)

The court is well satisfied that in this case the remedy at law is wholly inadequate for the purposes of justice. They cannot but regard the injury to the appellees as of a serious character. But they are not satisfied, from all that is shown by the record, that ample pecuniary compensation might not be made to the appellees for the invasion of their rights, and the impairment to the value of their property. And as a mandatory injunction would subject the other party to serious inconvenience, it would seem to be proper for a court of chancery to direct an inquiry before itself, whether the injury is capable of being *fully and abundantly compensated by a pecuniary sum, and what sum would be reasonably adequate. In Kerr on Injunctions (page 231), it is said, “the court will not interfere by way of mandatory injunction without taking into consideration the comparative convenience and inconvenience which the granting or withholding the injunction would cause to the parties. If the injury done is capable of being fully and abundantly compensated by a pecuniary sum, while the inconvenience to the other party from granting an injunction would be serious, the court will not interpose by mandatory injunction; but will either direct an inquiry before itself, in order to ascertain the measure of damages that has been actually sustained, or will, on dismissing the bill, reserve to the plaintiff his right to proceed at law.” An action at law could not afford an adequate remedy for the permanent and continuing injury. Whilst in the proceeding in equity, he may be awarded compensation, not only for past injuries, but also for the permanent and continued anticipated injury caused by the appellant’s acts of aggression upon their rights, already accomplished, and thus avoid a multiplicity of suits at law to recover damages from time to time, for the continuing injury, after the damage has been actually sustained; the pecuniary compensation to be awarded in lieu of all damages actually incurred, or which may hereafter be incurred, by the appellee, from the acts and doings of the appellant complained of, and the appellees perpetually enjoined from the prosecution of other suits or actions against the appellant therefor. In a recent case of Isenberg v. The East India House Instate Co., decided in England, (The Jurist, 1864, part 1, page 221), the lord chancellor suspended the order of the master of the rolls, awarding a mandatory injunction, and directed an inquiry *before him for the purpose of ascertaining what damage had been sustained by the plaintiff, by reason of the buildings erected by the defendants, and what would be the proper amount of compensation to be paid by the defendants to the plaintiff as satisfaction for such damages. The court, approving of the decision of the lord chancellor, are of opinion that it may be safely followed as a precedent. They are of opinion, therefore, to reverse the decree of the circuit court, and suspend the mandatory injunction, and to remand the cause for the purpose of directing the inquiries before indicated, and then to be proceeded with to a final hearing and decree, as may be right and proper on the case as it may be then presented. But the appellees being the parties substantially prevailing here, are entitled to their costs.

Moncure, P., concurred in the opinion of Anderson, J.

Staples, J., concurred in the results.

Christian, J., dissented.

The decree was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that whilst the rights of the appellees are clear, the injury and damages which they have-sustained are serious, and that the corporation court did not exceed its powers in awarding a mandatory injunction, yet as. the exercise of that power is one which ought to be attended with great caution, and the court here is not satisfied that the appellees may not be abundantly compensated in damages by a pecuniary sum for the injury which they have sustained. It is therefore decreed and ordered that the decree of *the said corporation court be reversed and annulled, and that the cause be remanded to the said corporation court with instructions to direct an enquiry to be made by a jury, to be em-panelled at its bar, to ascertain whether any and what pecuniary sum may adequately compensate the appellees for the permanent damages which they have sustained by the acts and doings of the appellant; and upon the return of the verdict of the jury to render such decree as will be right and proper in the case as then presented; and in the meantime to suspend the order awarding a mandatory injunction. And the appellees, being the parties substantially prevailing, it is further decreed and ordered that they recover of the appellant their costs by them about their defence in this behalf expended.

Decree reversed.  