Hausman v. Brown

¶1 [4-6] We approve the very clear opinion of the trial judge, and that opinion, with its summary but sufficient statement of the facts, will he set out in the report of this appeal. However, in further response to the brief for appellants, we deem •it advisable to say that the reservation in the deed under which appellants claim operated to create, not an, interest! in the soil, but a license in the nature of an easement, which would be irrevocable, as long at least a,s the servient building stands (Shirley v. Crabb, 138 Ind. 2010, 37 N. E. 130, 46 Am. St. Rep. 376), but for the fact that its enjoyment necessarily involved an unlawful use of the public street (Jones on Easements, § 219). Without that use the servitude, if confined within the limits of the purpose for which it was designed, can be of no benefit to appellants. It would serve no useful purpose to keep the halls open through the building occupied by appellee — they could not be used as passways — -unless in connection with the balcony and stairway on the sidewalk. It may be conceded that the servitude which the predecessors of the parties undertook to create figured as a part of the consideration of the contract in which it was reserved; but it was unlawful none the less, as all parties then or now concerned must be conclusively presumed to have known, and in respect of this unlawful feature of the contract the law cannot intervene for appellants’ relief. It is sufficiently clear, we think, without extended argument, that appellee’s motive in tearing away the balcony and stairway can have no controlling influence upon the decree, while, as for the long time those obstructions have been allowed to remain in the street, the authorities cited by the trial judge suffice to show that it has had no effect to change the situation to appellants’ advantage. We see, therefore, no recourse but to order an affirmance of the decree dismissing appellants’ bill.

¶2 Affirmed.