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MAIORIELLO v. ARLOTTA (05/22/50)

May 22, 1950

MAIORIELLO
v.
ARLOTTA, APPELLANT



Appeal, No. 142, Jan. T., 1950, from decree of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1948, No. 1562, in case of Columbia Maioriello v. Rosaria Arlotta. Decree reversed; reargument refused June 7, 1950.

COUNSEL

Albert S. Oliensis, with him H. P. Abramson and Albert G. F. Curran, for appellant.

Alexander Schamban, for appellee.

Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.

Author: Stearne

[ 364 Pa. Page 558]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

Plaintiff and defendant are adjoining property owners. 902 South 8th Street, Philadelphia, is owned by plaintiff, while the adjoining premises, 900 South 8th Street, are owned by defendant. Defendant's premises are L-shaped, with the rear lot or yard abutting plaintiff's premises. The west brick wall of plaintiff's kitchen is built on the rear property line. The wall has windows overlooking defendant's lot. Plaintiff's building, occupying the entire lot, consists of two rooms on the first floor. The front room is used as a barber shop. The rear room, with its windows overlooking defendant's yard, constitutes the kitchen. Defendant erected a ten foot high concrete wall, entirely upon her own land, three inches from the party line and defendant's kitchen. The effect is to obstruct and block off plaintiff's kitchen windows and prevent the free passage of light and air into same. Plaintiff instituted the present action in equity to restrain defendant from obstructing such light and air. The learned Chancellor decreed that the height of the wall be reduced from ten feet to six feet. This appeal followed.

The facts of the present case are closely analogous to those in Cohen et ux. v. Perrino et ux., 355 Pa. 455, 50 A.2d 348, wherein this Court decided that an owner has the privilege of building, upon his own land, a structure which obstructs the light, air and view of an adjoining owner, even though such structure serves no useful purpose and is erected solely to annoy the adjoining owner and interfere with the use and enjoyment of his land. It was decided that when a wall is on the property line, windows in the wall give no easement of light and air.

[ 364 Pa. Page 559]

The learned court below decided that because title to both premises had become vested in the same individual in 1916, and subsequently such owner conveyed the two properties separately, the grantor thereby created an easement of light and air, by implication, because of necessity. Great reliance was placed upon a decision of this Court in Rennyson's Appeal, 94 Pa. 147.

In Pennsylvania an easement to light and air cannot be acquired by prescription: Hazlett et al. v. Powell et al., 30 Pa. 293; Haverstick v. Sipe, 33 Pa. 368; Rennyson's Appeal, supra; Philadelphia Scoop and Scale Manufacturing Company v. Silberman, 351 Pa. 154, 155, 40 A.2d 395. The doctrine of ancient lights is not part of the law of this Commonwealth: Rennyson's Appeal, supra; Beckershoff et ux. v. Bomba, 112 Pa. Superior Ct. 294, 170 A. 449. But an easement to light and air may be acquired, as with any other easement, by express grant: Rennyson's Appeal, supra.

This Court early stated that an easement to light and air may be implied because of necessity: Rennyson's Appeal, supra. However, no case has been cited, and our research has revealed none, wherein such an implied easement has been decreed. Chief Justice LOWRIE, in Haverstick v. Sipe, supra, said, p. 371: "We would not say that there can be no possible case in which such an implication can arise...."

The existence of an easement presupposes a dominant and servient tenement. Where both dominant and servient tenements were at one time held in common ownership, it becomes necessary to ascertain the time of the severance of the titles. In order that the defendant's lot should become servient to plaintiff's, the plaintiff must have acquired the servitude before the defendant bought. Then and only then would the defendant take ...


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