O’Bkieit, J.:
The evidence supports the finding that the plaintiff’s building has no wall on its. westerly side, and that its beams are inserted in the easterly wall of the building on the adjoining lot. on the west, and is dependent upon that wall for support. On the premises are two houses, one in front and one in the rear, the latter of which is not involved, the question on this appeal turning upon whether the title to the front house is marketable.
It must be assumed that in contracting for the purchase of a house ' the defendant had a right to demand a house with four walls, the ordinary and generally accepted meaning of the term house necessarily including a structure with four walls. Upon the twenty-five feet contracted to be conveyed there is a house with but three walls, the fourth, as found, being entirely upon the lot to the west, into which the beams of plaintiff’s house are inserted, and upon which they depend for support. Ho record title to this wall, or agreement in writing or by parol for its use was produced, the plaintiff basing his claim to the wall as a party wall upon adverse possession. It appears that for thirty years the buildings and walls have stood in the same condition, and that- during that time the plaintiff and his grantors have used the westerly wall- its entire width of eight inches and its entire height above the fourth story and up to the roof, which wall is built entirely on the premises on the west.
Mrs, Boehner, the owner of this westerly lot, testified that she acquired title to • the property from her husband, to whom she had been married in 1861, and that he remained the owner until 1884, when he died and gave and devised the. premises to her; that she has since remained the owner, and that Hos. 528 and 530 have been in the same condition.during the period of twenty-nine years that she has lived on the premises. Another witness, who had known the premises for thirty years, said that they have always been just as they are now, and that no change in the walls or any of the stories had been made during that time. It further appears that the plaintiff. and Mrs. Boehner had a conversation about the wall, in which the latter stated that she made ho objection to the beams in her-wall, [425]*425but told the plaintiff- that the wall was hers. This conversation occurred in the fall of 1895, and the plaintiff insists that, as it was long subsequent to the time when his title ripened into right, this in no way affected or impaired the title by prescription and adverse possession which before that time had been gained.
The absence of any record title of the plaintiff’s claim to the use and support of the wall in question as now used by'him necessarily calls for, and makes such user dependent upon, proof outside of the record of the special circumstances which entitle him to such user. The plaintiff insists that, by the mere use of the wall for the beams of his house during the statutory period, his claim has ripened into a title by adverse possession, and that the wall must now be regarded as a party wall.
“ A party wall, in the Ordinary meaning of the term, is a wall between two adjoining owners, built at common expense and used for common advantage. The term, however, may be used in four different senses. *. * * Third. A wall which belongs entirely to one of the adjoining owners, but is subject to an easement or right in the other to have it maintained as a dividing wall between the two tenements.” (18 Am. & Eng. Ency. of Law, 3.) The expression “ subject to an easement or right ” necessarily means, as shown in the succeeding portions of the work referred to, subject to one created by contract, express or implied, by prescription or by statute.
Where a wall- is constructed entirely upon one’s own land, and subsequently the owner of adjoining land inserts his beams in such wall, does an inference from that fact alone flow that it is intended as a claim adverse to the original owner of the wall ? Is not the inference equally strong that it has been done by permission or acquiescence, and does the rule of law go so far as to require the owner of the land to assert exclusive, ownership in the wall during the statutory period in order to prevent the rights of the beam owner from ripening into title to the wall by adverse possession ?
Undoubtedly, if it had been shown that the houses were originally owned by one person and had been built together, then, upon the authorities referred to by Mr. Justice Ingraham, the presumption that the wall was a party wall would arise. ■ Where, however, it [426]*426does not appear but that they had different owners and were built at different times, the mere fact that a person has inserted the beams of his house in his neighbor’s, wall, unless it is shown to have been done by permission or under an agreement, or has been acquiesced in in such a way. as to give a prescriptive right, does .not thereby make it a party wall.
Upon the question of the time the wall has been used the evidence is satisfactory. But the additional evidence of the absence .of circumstances or conditions which may have prevented the use of the wall from ripening into title is wanting. For all that appears, there may or may not have been parties in being against whom the Statute of Limitations could have run ; but we do not understand that in the absence of proof a presumption will arise or be indulged in that such was or was not the fact, or that an agreement had ever been made between the owners of the buildings in question permitting the use-of the wall as claimed. We think the burden was upon the plaintiff to show such agreement, if. any, and the precise circumstances under which he claims the title to such use of the wall.
In Shriver v. Shriver (86 N. Y. 585.) it is said: “ In this class of cases are those where the title depends on presumption grounded merely on the lapse of time. It is said by a text writer that as between vendor and purchaser the court ought not to presume unless it belie ves,, on circumstances strong enough to induce belief, that the fact is actually so. * "x" * The title of the vendors rests upon a presumption raised by lapse of time. But, in conflict with that presumption, facts, not suspicions only, appear, raising a rational doubt whether a vendee, relying upon that title,, may not be called upon to defend and to produce proof to explain or obviate those facts.” And in Wilhelm v. Federgreen (2 App. Div. 483) where the objection made was to an encroachment of a building upon the adjoining lot, it was urged that as the' building had" been erected more than twenty years there had been adverse possession which had ripened into title. The presiding justice, in passing upon the question, said : “ It is undoubtedly true, as claimed upon the part of the defendant, that whenever possession of sufficient duration is proved, the title of the possessor is as good as if conveyed by a deed. * * * But the questions of tiie nature of the adverse possession and the sufficiency of its duration are always questions which are [427]*427open for investigation and consideration; and the purchaser will not be compelled to take title where there are circumstances which may have prevented the possession from ripening into a title. * * *
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O’Bkieit, J.:
The evidence supports the finding that the plaintiff’s building has no wall on its. westerly side, and that its beams are inserted in the easterly wall of the building on the adjoining lot. on the west, and is dependent upon that wall for support. On the premises are two houses, one in front and one in the rear, the latter of which is not involved, the question on this appeal turning upon whether the title to the front house is marketable.
It must be assumed that in contracting for the purchase of a house ' the defendant had a right to demand a house with four walls, the ordinary and generally accepted meaning of the term house necessarily including a structure with four walls. Upon the twenty-five feet contracted to be conveyed there is a house with but three walls, the fourth, as found, being entirely upon the lot to the west, into which the beams of plaintiff’s house are inserted, and upon which they depend for support. Ho record title to this wall, or agreement in writing or by parol for its use was produced, the plaintiff basing his claim to the wall as a party wall upon adverse possession. It appears that for thirty years the buildings and walls have stood in the same condition, and that- during that time the plaintiff and his grantors have used the westerly wall- its entire width of eight inches and its entire height above the fourth story and up to the roof, which wall is built entirely on the premises on the west.
Mrs, Boehner, the owner of this westerly lot, testified that she acquired title to • the property from her husband, to whom she had been married in 1861, and that he remained the owner until 1884, when he died and gave and devised the. premises to her; that she has since remained the owner, and that Hos. 528 and 530 have been in the same condition.during the period of twenty-nine years that she has lived on the premises. Another witness, who had known the premises for thirty years, said that they have always been just as they are now, and that no change in the walls or any of the stories had been made during that time. It further appears that the plaintiff. and Mrs. Boehner had a conversation about the wall, in which the latter stated that she made ho objection to the beams in her-wall, [425]*425but told the plaintiff- that the wall was hers. This conversation occurred in the fall of 1895, and the plaintiff insists that, as it was long subsequent to the time when his title ripened into right, this in no way affected or impaired the title by prescription and adverse possession which before that time had been gained.
The absence of any record title of the plaintiff’s claim to the use and support of the wall in question as now used by'him necessarily calls for, and makes such user dependent upon, proof outside of the record of the special circumstances which entitle him to such user. The plaintiff insists that, by the mere use of the wall for the beams of his house during the statutory period, his claim has ripened into a title by adverse possession, and that the wall must now be regarded as a party wall.
“ A party wall, in the Ordinary meaning of the term, is a wall between two adjoining owners, built at common expense and used for common advantage. The term, however, may be used in four different senses. *. * * Third. A wall which belongs entirely to one of the adjoining owners, but is subject to an easement or right in the other to have it maintained as a dividing wall between the two tenements.” (18 Am. & Eng. Ency. of Law, 3.) The expression “ subject to an easement or right ” necessarily means, as shown in the succeeding portions of the work referred to, subject to one created by contract, express or implied, by prescription or by statute.
Where a wall- is constructed entirely upon one’s own land, and subsequently the owner of adjoining land inserts his beams in such wall, does an inference from that fact alone flow that it is intended as a claim adverse to the original owner of the wall ? Is not the inference equally strong that it has been done by permission or acquiescence, and does the rule of law go so far as to require the owner of the land to assert exclusive, ownership in the wall during the statutory period in order to prevent the rights of the beam owner from ripening into title to the wall by adverse possession ?
Undoubtedly, if it had been shown that the houses were originally owned by one person and had been built together, then, upon the authorities referred to by Mr. Justice Ingraham, the presumption that the wall was a party wall would arise. ■ Where, however, it [426]*426does not appear but that they had different owners and were built at different times, the mere fact that a person has inserted the beams of his house in his neighbor’s, wall, unless it is shown to have been done by permission or under an agreement, or has been acquiesced in in such a way. as to give a prescriptive right, does .not thereby make it a party wall.
Upon the question of the time the wall has been used the evidence is satisfactory. But the additional evidence of the absence .of circumstances or conditions which may have prevented the use of the wall from ripening into title is wanting. For all that appears, there may or may not have been parties in being against whom the Statute of Limitations could have run ; but we do not understand that in the absence of proof a presumption will arise or be indulged in that such was or was not the fact, or that an agreement had ever been made between the owners of the buildings in question permitting the use-of the wall as claimed. We think the burden was upon the plaintiff to show such agreement, if. any, and the precise circumstances under which he claims the title to such use of the wall.
In Shriver v. Shriver (86 N. Y. 585.) it is said: “ In this class of cases are those where the title depends on presumption grounded merely on the lapse of time. It is said by a text writer that as between vendor and purchaser the court ought not to presume unless it belie ves,, on circumstances strong enough to induce belief, that the fact is actually so. * "x" * The title of the vendors rests upon a presumption raised by lapse of time. But, in conflict with that presumption, facts, not suspicions only, appear, raising a rational doubt whether a vendee, relying upon that title,, may not be called upon to defend and to produce proof to explain or obviate those facts.” And in Wilhelm v. Federgreen (2 App. Div. 483) where the objection made was to an encroachment of a building upon the adjoining lot, it was urged that as the' building had" been erected more than twenty years there had been adverse possession which had ripened into title. The presiding justice, in passing upon the question, said : “ It is undoubtedly true, as claimed upon the part of the defendant, that whenever possession of sufficient duration is proved, the title of the possessor is as good as if conveyed by a deed. * * * But the questions of tiie nature of the adverse possession and the sufficiency of its duration are always questions which are [427]*427open for investigation and consideration; and the purchaser will not be compelled to take title where there are circumstances which may have prevented the possession from ripening into a title. * * *
In the case at bar, in order that this adverse possession should have ripened into a title, it was necessary to show that such possession was intended to be adverse; and further, that the parties in whom the title to the premises claimed to be held adversely was vested, were in such a condition that the Statute of Limitations ran, and the protection of the statute inured to the benefit of the adverse possessor.”
Here, the only evidence of the adverse possession is that the premises have always been as they now are, upwards of twenty years; but no evidence was produced by the plaintiff to prove any of the other matters essential to establish the claim. Mor does it appear that the owners of Mo. 528 East Twelfth street were in such a condition that the statute could have run against them during the statutory period. These facts; in the absence of evidence, the court is asked to determine, and that, notwithstanding the claim made by Mrs. Boehner that she, and she only, is the owner of the wall in question. As she is not a party to the suit, the justice of such claim cannot be determined; and if she should undertake to assert it by proceeding to tear down the' wall, the defendant, if compelled to take title, would be called upon to seek a judicial determination of the conflicting claims to the wall and to establish the claim of adverse possession, thereby becoming involved in a litigation, the success of which would depend upon parol evidence — a species of proof which, as said in Jay v. Wilson (91 Hun, 391), time, death or some other casualty may .place beyond his reach, and which in this case he has not been placed in .possession of’
The principle of emeat erryptor, invoked by the plaintiff, we do not consider applicable. There is nothing to show that the defendant, at the time of making the contract, knew, or could have known, that the front building was dependent upon a wall which, as the result of a survey, was shown to be entirely upon the adjoining premises. Besides, we think the nature of the contract renders that principle inapplicable.
Our conclusion, therefore, is that the plaintiff’s right in the wall by adverse possession was not fully' established,- the title tendered [428]*428was not marketable, and that the judgment below was right and should be affirmed, with costs.
Yah Brunt, P. J., concurred'; Williams and Ingraham, JJ., dissented. ■