Duncan v. Rodecker

62 N.W. 533, 90 Wis. 1, 1895 Wisc. LEXIS 215

• Court: Wisconsin Supreme Court
• Decided: March 5, 1895
• Status: Published

Opinion

NewMAN, J.

The deed of conveyance from Lee to the plaintiff, as explained by the oral testimony showing the situation, seems to have been intended to convey to the plaintiff the land upon which the addition stood, up to the line of the original building, with such interest in the south wall of the original building as was necessary for the support of the building conveyed to the plaintiff, and for a partition wall between the two possessions. The description, “ the south twenty-six feet, more or less,” was intended to describe all the land upon which the addition stood, up to the south line of the original building. It was not intended to include any part of the original building or of the land upon which it stood. If the deed had been altogether silent as to the wall, it is probable that an interest in the wall in the nature of an easement for the support of the building conveyed to the plaintiff and for a partition would have passed to the plaintiff as an incident or appurtenance to the land conveyed. Dillman v. Hoffman, 38 Wis. 559; Galloway v. Bonesteel, 65 Wis. 79. No doubt the mention of the wall in the conveyance was of something additional to the land intended to be conveyed. There is no implied easement in the wall, because the deed expresses the interest intended to be conveyed. The deed in terms conveys the undivided one-half of the wall. This, construed in the light of the oral testimony, was intended to create an easement in the wall for the support of his building and for a partition, and not to convey a title in the ground upon which the wall stood. It differs little, if at all, from the easement which the law would have implied in the absence from the deed of that provision.

The destruction of the entire building by fire, and the erection of a new one by the plaintiff upon an entirely different foundation wall, was an abandonment of the easement and extinguished it. Especially as against the defendants, who bought and built on the old lines without notice of any claim of plaintiff of interest in the old foundation, would the plaintiff be estopped to claim an easement in the old wall. King v. Murphy, 140 Mass. 254; Eddy v. Chace, 140 Mass. 471; White's Bank v. Nichols, 64 N. Y. 65; Washb. Easem. (4th ed.), 707; 6 Am. & Eng. Ency. of Law, 146-149, and cases cited in note 2, p. 147.

It was urged in argument that this was like a party wall. In that case it would cease to be a party wall upon destruction of the building. The easement ceases with the cessation of the reason which called it into existence. Heartt v. Kruger, 121 N. Y. 386; 18 Am. & Eng. Ency. of Law, 9, and the cases cited in note 1.

There is another ground entirely fatal to the judgment of the trial court. Granting that the deed conveyed to the ■plaintiff not only an undivided one-half of the wall but also an undivided one-half of the land upon which the wall stood, that 'would give the plaintiff the right to the possession of the entire wall and the land upon which it stood, hut would not give him the sole right to its possession. The defendants have the same right to the possession of the entire wall as he. They are tenants in common with him of the entire wall. He does not own the south half of the wall and they the north half, hut all own the entire wall in common and are entitled to possess it in common. An action of ejectment cannot perform the office of an action of partition. It cannot segregate from the common property the plaintiff’s share and give it to him in severalty. It can only let him into possession of the common property, jointly with the defendants, the other owners. Freem. Cotenancy (2d ed.), § 293. So the judgment, which gives him some share in severalty, cannot be supported on the plaintiff’s own construction of his conveyance.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.