Opinion
July, 1904.
J. Hampden Dougherty, for the appellant.
Daniel Daly, for the respondent.
The plaintiff, as the owner of No. 111 West Thirteenth street, brought this action to enjoin and restrain the defendant from maintaining a glass and metal awning in front of its building Nos. 107-109 West Thirteenth street.
The complaint alleged that the construction and maintenance of the awning was in violation of the following covenant in defendant's deed of conveyance of the lot upon which the building is erected: "Subject, nevertheless, to the condition, restriction and agreement that the front lines of any messuages, dwelling houses or other buildings which may at any time be erected upon the premises hereby granted fronting towards Thirteenth street aforesaid shall recede eight feet from the northerly line of said Thirteenth street which space of eight feet between the front line of such messuages, dwelling houses or other buildings and the said northerly line of Thirteenth street, is forever to be left open as and for court-yards in front of such buildings respectively." At the conclusion of the trial the learned trial justice reserved, without passing upon, the question of whether the plaintiff could, in any event, maintain the action and dismissed the complaint, upon the ground that the defendant, in constructing and maintaining the awning, had not violated the covenant above quoted. The sole question presented, therefore, is whether the evidence adduced at the trial is sufficient to sustain such finding.
There is little or no dispute of fact. Upon the plaintiff's lot is a three-story dwelling in front of which is an iron railing which projects six feet beyond the stoop which itself projects eight feet beyond the building. There is also an iron and wooden balcony which projects three feet. Next to and adjoining the plaintiff's dwelling on the east is the defendant's building, which is five stories high and in which it has carried on business for many years. The awning for a space of twenty-five feet in front of the building extends thirteen feet from the house line, and then for the remaining width of the building, extends to the curb line. It is supported by five posts. Three of them are eight feet from the front of the building and two at the curb, and none of them appear to be in the courtyard space. The roof is translucent glass, similar to glass used in skylights. The highest portion of the awning is five feet one inch above the top of plaintiff's stoop, and slopes towards the curb about two feet four inches, where it is only about two feet one inch above the stoop. The courtyard space is open, and in effect constitutes a part of the sidewalk in front of the defendant's building.
Taking all of the evidence into consideration as to the construction of the awning, I am of the opinion that it is not a violation of the covenant referred to. That covenant contemplates that the space shall be kept open, so far as building upon it is concerned. The restriction is "that the front lines of any messuages, dwelling houses or other buildings * * * shall recede eight feet from the northerly line of said Thirteenth street." The awning certainly is not covered by the words "dwelling houses or other buildings," nor do I think it is covered by the word "messuages," which, in the sense here used, is synonymous with dwelling house. (2 Bouvier L. Dict. [Rawle's Rev.] 407.) It is no more part of the building than an ordinary awning would be. The courtyard space certainly is much more free and open than is that in front of the plaintiff's dwelling, and she holds the title to her lot subject to the covenant above quoted. It is difficult to see, therefore, how she is in a position to invoke the equitable powers of the court to restrain the defendant from doing that which she is herself doing. A court of equity favors only worthy claimants. Thus it has been held that one will not be allowed the abatement as a nuisance of a structure on his neighbor's premises if he maintains an equally offensive structure on his own. (11 Am. Eng. Ency. of Law [2d ed.], 163; Cassady v. Cavenor, 37 Iowa 300.)
But however this may be, I am of the opinion that the trial court reached the proper conclusion, and the judgment appealed from, therefore, should be affirmed, with costs.
PATTERSON, O'BRIEN and HATCH, JJ., concurred; VAN BRUNT, P.J., dissented.
Judgment affirmed, with costs.