Brown v. Pentz

1 Abb. Ct. App. 227

Opinions

McCoun, J.

The north wall of Sandford’s house, built by him in 1813, on lot Ho. 73, was placed partly on lot Ho. 75, adjoining, then in possession of Roulet -as the owner thereof. This was done under an agreement in writing between Sandford and Roulet, by which the latter agreed, in case he should thereafter build upon lot Ho. 75, or if the wall should be used by him, his heirs or assigns, as a party wall, then he would pay one • half of the value of such wall. The wall, when built, still belonged wholly to Sanford. He was not a trespasser by building it partly on the adjoining lot. The agreement was a license to enter upon that lot and to erect it there. At any time before the wall was used by the owner of that lot as a party wall, Sandford or any grantee of his was at liberty to take it down and remove it. It lormed a part of his house, and though overlapping another’s land, it was transferable by any deed of conveyance which Sandford might make of his house and lot. The title to that part would pass and vest in a purchaser, the same as any other part of the premises.

* ” By sundry successive conveyances the title to lot Ho. 73, now known as Ho. 69 Greenwich street, became vested in Brown, the plaintiff below, in the year 1838, with the identical house built by Sandford still standing upon it. As yet the wall had never been used as a party wall by any owner or occupier of the adjoining lot. Brown continued to be the owner, when in 1845, the defendants below, having acquired a title to the adjoining lot, formerly Ho. 75 (now Ho. 71), erected a building upon it, and for the first time used the wall in question, by making it a party wall between them as the owners on one side and Brown as the owner on the other. From, these facts it is plain that if the defendants are bound to make compensation to anybody for the use they had made of the wall, it must be-to Brown, because it is Ms property wMeh has leen talcen and used by the defendants. To him, therefore, the right to compensation naturally belongs, and it is not essential to that right that the plaintiff should show anything more than he has done; but for greater caution, and to secure the defendants from all danger of" being called upon by Sandford’s representatives to make compensation, founded on the original agreement with Boulet, the plaintiff below shows that he is the holder of that ágreemenfc also, by assignment from Sandford’s administratrix. And why should not the defendants below be bound to make this compensation ? They have taken and used their neighbor’s property with his consent. The wall was placed there to be used in the way they have used it. It was built expressly wfth reference to such a use, and was to be paid for when so used, and not before. The condition on which payment was to be made has never happened until now. The defendants are not at liberty to say it may have been paid for already by somebody else, especially as they took their deed with express notice in the deed itself that the northerly wall of the house adjoining was a party wall, covering seven inches of the land which they had bought,' and was to be paid for by them whenever they should build and should use it. True, the deed does not say to whom payment was to be made, and it is not necessary it should. The law determines that, upon the principles I have stated. It also appears there was a mistake in’the deed in speaking of the wall as a wall erected by Bobert Dickey which they were to pay for; but this is immaterial. The wall spoken of was the wall then standing, and the same which they have used, and this is the wall built by Sandford under an agreement with Boulet, and there never has been any other. ■ And have not the defendants acquired a property which -they did not before possess, by taking the northerly part of the wall into their building, incorporating it with their new structure, and mak- . ing it a part thereof ? It has now become their property, that D, seven inches of it, which stands upon their land. It is no longer liable to be removed or disturbed by the owner of the other lot. If ever it should become dilapidated so as to require reparation or renewal, one owner can compel contribution from the other towards the expense. Campbell v. Mesier, 4 Johns. Ch. 334. In England there is a statute, 14 Geo. III. c. 78, called the building act, to regulate the building of party walls, as a preventive against fires. The principles which govern between the owners of Avails built under that act in relation to their rights and liabilities, are equally applicable where a Avail of that description has been erected by agreement ■between the owners of adjoining lots. They are principles of natural justice which result from the nature of the interest or ownership in a party wall. Such a wall, standing partly on the land of one, and partly on the land of the other, does not, it is true, constitute a tenancy in common between them, because each owns in severalty to the diAdding line of their respective lots, and therefore each of the house owners has a separate property in a moiety of the party wall, and an easement hhewise for the support of his house in the other moiety ; so that it has been held that one of them may maintain trespass against the other for pulling down so much of the party wall as stands upon his own land. Matts v. Hawkins, 5 Taunt. 20 ; Gibbons on Dilapidations, &c., 110.

In Gibbons’ treatise, just mentioned, it is also said that, until the proportion of the expense of building the party wall is paid, the property-in the whole wall and in the whole ground on-which it stands, is in the builder thereof, and when there is no other house adjoining the party wall at the time it is built, the portion of the expense becomes due from the neighbor as soon as he cuts into and first uses the party wall. When it is built against an adjoining house, the portion becomes due when the wall is finished. Gibb. 123. See also Stuart v. Smith, 2 Mars. 435; S. C., 7 Taunt. 158. I entertain no doubt of the correctness of the decision of the court below.

See 4 Kent Com. 7 ed. m. p. 467, and cases cited; United States v. Appleton, 1 Sumn. 492; Burke v. Nichols, p. 260 of this vol.