The evening herald. [volume] (Shenandoah, Pa.) 1891-1966, 1898-07-09
RIGHTS OF
PROPERTY
The Decision of Judge Koch In the
FraneY Case.
The LAW ON EXTENSIONS DEFINED
Upper story Bay windows, the Court Says.
Interfere With the Ordinary n
Proper Enjoyment of Rights
Which Are Free to ALI and
Are N~uisances.

The bay window injunction suit in which
James j. Franey is defendant is one of the
most interesting local litigations that have
attracted the attention Of the public for
some time. Interest i'm the matter was not
alone due to the prominence of the parties
connected with it, but also to the general i'm
p]ortauce Of the issue. 1t is tho first case
from the own in which there has been a
legal adjudication on the rights of property
owners to build outside the lines Of their
properties, and for that reason the decision of
the court, which was given briefly in yester.
days HERALD, is published in full. 1t is as
follows
In the Court Of Common Pleas Of Schuyl-
kill County. Sitting In Equity.
Commonwealth Of Pennsylvania, ex rela-
tione Henry c. Mccormick Attorney General
Complainant VS.. James j. Franey. No. July
Term, 1895.
Rule to show cause why an injunction
should not be granted.
The above rHle was granted on information
of the Attorney-Gener of this Common
wealth in the nature of a bill in equity on
behalf Of the Commonwealth against James
D. Frauey, defendant. The defendant is the
owner Of Il lot of ground situate on the
northwest corner of Main and Lloyd streets
in the Borough Of Shenandoah, the
said lot being thirty feet wide
facing on the west side of Main
street and extending along Lloyd street one
hundred and fifty feet, on which is erected a
partly new building occupying the entire
width on Main street and about eighty feet
on Lloyd street. On the second story of
said building defendant has put three iut or
bay windows extending into Lloyd street
about four feet. One window is nine feet
eleven inches in width, another nine feet
nine inches, and the third thirteen feet three
and one-half inches in width. Defendant is
also about to erect on the first story two
bulk windows extending out into Lloyd
street about four feet. one Of these windows
is twenty feet wide and the other is twenty
four feet wide. He has also erected a stair
way four feet wide on the Lloyd street side
Of the house from the ground floor to the
second story. LLOYD street is fifty feet wide
and is one of the principal highways in said
borough, All Of said windows and the stair
way encroach upon the sidewalk of said
Lloyd street.
The complainant prays for an order to
abate and remove said three windows and
the stairway, and for an order restraining
the defendant from erecting said two bulk OF
bay windows on the first floor of said build
ing.
In the light of the evidence taken at the
hearing there can be no dispute about the
correctness of the facts as above stated.
1t was not shown that any ordinance exists
IN the Borough Of Shenandoah regulating
bay or bulk windows OF s~tairways on the
sidewalks, nor that the defendant obtained
municipal consent for erecting the windows
aud gtu1ry4rar 4C,g,-.sl mn
window for some years on the LLOYD street
side OF the old building farther back from
Main street than the present windows. That
the said windows and stairway interfere to
some extent with the air, light and view can.
not be doubted.
The defendant insists that this suit was
begun at the instance of private persons.
notably among them being Mr.. George
Folmer, and on the authority of Wilson vs.,
Strawbridge, 1 w. N. G. IS, asks US to ouasb
the proceeding. His motion must be denied
because the Attorney General specially al
lowed the use Of the name of the Common
wealth in this ease.
Projecting windows from an upper story
Interfere to some extent with the ordinary
and proper enjoyment of rights which are
free to all, and one who appropriates the
space above the footway creates a purpres-
ture by making several to himself that which
ought to be common to many. 1t cannot be
successfully maintained that owners of prop
erty fronting on a highway have any such
right as this, and where there is a purpres-
ture set up, and such purpresture constitutes
a nuisance AS well, by a wrongful appropria-
ton OF a portion Of a highway, court of
equity may forbid the continuance of such
nuisance and abate the same by Injunction"
Reiner's Appeal, 100 Pa. 1872.
In the Commonwealth VS.. Harris ct al.
10 w. n. c. To-, the defendants were re-
strained from putting a bay window on the
'front.' of a house, Notwithstanding the fact
that the city councils of Philadelphia had.
by special ordinance, granted privilege to
erect the same.
But where Il borough or q city permits,
under regulations that are reasonable in char
acter and general in their application, the use
of a portion Of the highways for approaches
to and for monumental work upon buildings
standing on the street line, courts will not
restrain the exercise of such permission.
Livingtone VS.. Wolf, 27 w. n. C.5.
The plaintiff is entitled to the remedy it
invokes and the rule must be be made ALSO.
lutte.
And now, July 5, 1895, this cause came to
be heard on rule to show cause why an in
junction should not be granted aud was
argued by counsel, and thereupon, upon
consideration thereof, it is ordered, adjudged
and decreed as follows That in accordance
with the prayer Of the petition said rule be
made absolute, and that an injunction now
issue until final hearing, restraining and en-
joining James j. Franey, his agents and en-
ployes, from constructing and maintaining
five bay. windows and one stairway above
and over Lloyd street, in the borough of
Shenandoah, near the northwest corner of
Main street.
And il is further ordered and decreed that
the maintenance of said bay windows and
stairway are a public nuisance, and that the
defendant remove the same from said LLOYD
street.
And it is further ordered and deoreed that
the defendant pay the cost of this proceed
ing. BY the Court.
r. Ii. Koch, A. l.. ].
Exception for the defendant granted and
bill sealed.
Diokerts Cate,
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