Ellis v. Academy of Music

Citations

• 120 Pa. 608
• 22 W.N.C. 217
• 15 A. 494
• 1888 Pa. LEXIS 515

Syllabus

<p>After a verdict and judgment in an action charging the erection of a nuisance on a date certain and its maintenance to the date of bringing the suit, the plaintiff brought a second action for the continuance of the same nuisance, but charged its erection on a date certain after the former verdict and judgment and its maintenance to the date of beginning the second suit : Held,</p> <p>1. That the narr in the second suit was in fault in that it did not set forth the previous verdict and judgment and charge a continuance of the nuisance, but that, as the defect might have been cured by an amendment, and, as under his plea of not guilty the defendant was not prevented from setting up the former judgment as an estoppel to a recovery of damages for the original erection and the plaintiff was allowed to recover only for the continuance, the defendant was not injured by the irregularity.</p> <p>2. No man may trespass upon another’s right, however insignificant that right may be; and, the former verdict and judgment conclusively establishing the fact that the original obstruction was a nuisance and a constant challenge to the plaintifi’s right, he was entitled in the second action to such punitive damages as would compel the abatement of the nuisance.</p> <p>3. When by the several grants to the parties, their properties are bounded by a private alley in controversy and the same use of the alley is made appurtenant to each properly, neither party has the right to alter the character of the alley in any particular without the assent of the other.</p> <p>4. In such case, it is not error to charge the jury that parties who are entitled to the free use of an alley, have the same right in it that the pub-lie has in its highways, and if the way were vacated the soil would belong to the plaintiff and defendant, each usque ad medium filum viae.</p>