Blackmer v. Montcalm County Board of Commissioners

Michigan Court of Appeals

Blackmer v. Montcalm County Board of Commissioners

407 N.W.2d 646, 160 Mich. App. 323, 1987 Mich. App. LEXIS 2491

CourtMichigan Court of Appeals

DecidedMay 18, 1987

DocketDocket No. 91707

StatusPublished

This text of 407 N.W.2d 646 (Blackmer v. Montcalm County Board of Commissioners) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Blackmer v. Montcalm County Board of Commissioners, 407 N.W.2d 646, 160 Mich. App. 323, 1987 Mich. App. LEXIS 2491 (Mich. Ct. App. 1987).

Pincite

Opinion

Per Curiam.

Plaintiff, Richard Blackmer, appeals from an order of summary disposition which dismissed his claims of negligence and abuse of process. Plaintiff has conceded that there is no merit to his abuse of process claim, but asserts that he has a cognizable cause of action in negligence. Plaintiffs position is premised upon the assertion of a duty of defendant to agree to the demolition of a party wall. The trial court ruled that defendant had no such duty under the circumstances. We agree and affirm.

Plaintiffs building and defendant’s building shared a common wall. In 1981, fire destroyed plaintiffs structure. A separate fire damaged the interior of defendant’s building but left it structurally sound. Plaintiff obtained the services of an engineer, who found the party wall to be unsound and recommended its demolition. However, defendant refused to agree to the demolition, because the wall continued to provide some support for defendant’s roof and walls. Plaintiff now claims damages resulting from the delay in rebuilding caused by defendant’s refusal.

A party wall exists, regardless of an agreement between the parties, where a division wall exists between two buildings and has been used as support for both buildings for a period longer than the statute of limitations. Weadock v Champe, 193 Mich 553, 564-565; 160 NW 564 (1916). Easement rights in a party wall continue as long as the necessary support exists and the wall is of some value. 60 Am Jur 2d, Party Walls, § 14, pp 284-285; 69 CJS, Party Walls, § 11(b), pp 8-9. Ordinar[325]*325ily, the easement ceases only when the wall no longer exists or becomes completely unfit for its purpose. 69 CJS, Party Walls, § 11(b), pp 8-9. As long as" the easement continues, each property owner owes the other a duty not to threaten or destroy the support of the adjoining building. GF Heublein, Inc v Second National Bank, 115 Conn 168; 160 A 898 (1932).

Thus, weakening of the wall by fire does not necessarily deprive a person of his party wall rights. G F Heublein, Inc v Second National Bank, supra; Beidler v King, 209 Ill 302; 70 NE 763 (1904), 60 Am Jur 2d, Party Walls, § 15, p 286. Rather, the easement continues when the party wall continues to provide support, regardless of whether the servient tenant’s building remains. Carley v Lawrence, 170 F2d 381, 384 (CA 7, 1948).

In the instant case, plaintiff agrees that defendant acquired an easement of support in the party wall. And, although plaintiff argues on appeal that there is a disputed factual issue regarding the party wall’s continued ability to provide defendant support after the fire, before the trial court plaintiff admitted that the wall provided support to defendant’s building. Plaintiff has therefore conceded the continued validity of defendant’s easement. Under the circumstances, the defendant was not obligated to agree to demolition of the wall, as in fact plaintiff had a duty to refrain from destroying the wall.

The trial court correctly ruled that defendant was entitled to summary disposition.

Affirmed.

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Per Curiam.

Plaintiff, Richard Blackmer, appeals from an order of summary disposition which dismissed his claims of negligence and abuse of process. Plaintiff has conceded that there is no merit to his abuse of process claim, but asserts that he has a cognizable cause of action in negligence. Plaintiffs position is premised upon the assertion of a duty of defendant to agree to the demolition of a party wall. The trial court ruled that defendant had no such duty under the circumstances. We agree and affirm.

Plaintiffs building and defendant’s building shared a common wall. In 1981, fire destroyed plaintiffs structure. A separate fire damaged the interior of defendant’s building but left it structurally sound. Plaintiff obtained the services of an engineer, who found the party wall to be unsound and recommended its demolition. However, defendant refused to agree to the demolition, because the wall continued to provide some support for defendant’s roof and walls. Plaintiff now claims damages resulting from the delay in rebuilding caused by defendant’s refusal.

A party wall exists, regardless of an agreement between the parties, where a division wall exists between two buildings and has been used as support for both buildings for a period longer than the statute of limitations. Weadock v Champe, 193 Mich 553, 564-565; 160 NW 564 (1916). Easement rights in a party wall continue as long as the necessary support exists and the wall is of some value. 60 Am Jur 2d, Party Walls, § 14, pp 284-285; 69 CJS, Party Walls, § 11(b), pp 8-9. Ordinar[325]*325ily, the easement ceases only when the wall no longer exists or becomes completely unfit for its purpose. 69 CJS, Party Walls, § 11(b), pp 8-9. As long as" the easement continues, each property owner owes the other a duty not to threaten or destroy the support of the adjoining building. GF Heublein, Inc v Second National Bank, 115 Conn 168; 160 A 898 (1932).

Thus, weakening of the wall by fire does not necessarily deprive a person of his party wall rights. G F Heublein, Inc v Second National Bank, supra; Beidler v King, 209 Ill 302; 70 NE 763 (1904), 60 Am Jur 2d, Party Walls, § 15, p 286. Rather, the easement continues when the party wall continues to provide support, regardless of whether the servient tenant’s building remains. Carley v Lawrence, 170 F2d 381, 384 (CA 7, 1948).

In the instant case, plaintiff agrees that defendant acquired an easement of support in the party wall. And, although plaintiff argues on appeal that there is a disputed factual issue regarding the party wall’s continued ability to provide defendant support after the fire, before the trial court plaintiff admitted that the wall provided support to defendant’s building. Plaintiff has therefore conceded the continued validity of defendant’s easement. Under the circumstances, the defendant was not obligated to agree to demolition of the wall, as in fact plaintiff had a duty to refrain from destroying the wall.

The trial court correctly ruled that defendant was entitled to summary disposition.

Affirmed.

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407 N.W.2d 646, 160 Mich. App. 323, 1987 Mich. App. LEXIS 2491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blackmer-v-montcalm-county-board-of-commissioners-michctapp-1987.

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