The following opinion was filed October 28, 1913:
BaRNES, J.
On the appeal of the defendants it is contended (1) the right exists on their part, without' the consent of the plaintiff, to raise the height of the party wall on the south side of the two and one-half foot strip; (2) to inclose such strip to the additional height and use and occupy so much thereof as was not taken up with the stairway; (3) to remove the facing of the party wall and to substitute other material therein, provided the efficiency of the wall was in no way impaired by so doing; (4) to replace the old stairway with a new and better one; and (5) to make the height of the new stairway one foot less than the height of the old one. On all of these propositions except the third and fourth the trial court found adversely to the defendants. The plaintiff on its appeal urges that the court erred in adjudging the right to be in the defendant's to build a new stairway, although they were required to build it of the same height and width as the old stairway and of at least equally good material.
The party wall on the south side of the two and one-half foot strip was substantially sixteen inches thick, so that [315]*315there was inclosed in the building built by Mrs. Schulver a part of the two and one-half foot' strip about fourteen inches in width and twenty-nine and one-half feet in length, excluding end walls. The foundation wall exceeded twenty inches in thickness. The crucial question in the ease is, Did the plaintiff’s grantors own and does the plaintiff own an undivided one-half of all that part of the building that stands on the two and o'ne-half foot strip ? It is conceded that the parties each own a half interest in the soil itself and that it' was the intention that the south wall should be a party wall. If the question be answered in the affirmative, such answer settles most of the disputed questions in plaintiff’s favor, while a negative answer disposes of most of such questions in- defendants’ favor. The task of the court is to determine as best it may what the parties intended by their contracts of 1885 and 1908,' by. reading them in the light of the circumstances which surrounded the parties when they were made. Barkhausen v. C., M. & St. P. R. Co. 142 Wis. 292, 298, 124 N. W. 649, 125 N. W. 680; Shepard v. Pabst, 149 Wis. 35, 45, 135 N. W. 158. These contracts are not ordinary deeds. They were apparently made in duplicate and signed by all the parties, so that all are bound by the covenants and recitals contained therein. The small part of this fourteen-inch strip which is not used for stairway purposes can be of little value to the plaintiff, but that fact' is of no consequence except as it may be helpful in getting at what the parties had in mind. If the defendants are trying to appropriate any property that belongs to the plaintiff, the fact that it may have little value to the latter can furnish no justification for taking it.
The contract of 1885-contained the following:
“And it is further understood and expressly stipulated that the above conveyance carries with it to said first parties [the Huses] the right' to pierce the wall now being erected by said second party [Mrs. Schulver] on lands above con[316]*316veyed to said second party by said first parties at such place or places as may be necessary for tlie purpose of providing means of exit or egress out of or t'o any building which said first parties may hereafter erect or cause to be erected on said adjoining lands.”
It is of some significance that plaintiff’s grantors state the rights which they retain in the two and one-half foot strip, and that nothing is said which indicates any intention to reserve or hold any right' in that portion of the building which actually inclosed a part of such strip.
The contract of 1908 is more definite. It recites the purpose and intention the parties had in mind when the two and one-half foot' strip was conveyed, as follows:
“Whereas, it was -the purpose of the conveyance of said strip of land two and one-half by twenty-nine and one-half feet in dimensions, to provide a common stairway for the building then being erected by said party of the first part and any building which might thereafter be erected on said adjoining parcel, and to grant to the owners of said adjoining parcel the right to use said common stairway, which purposes were not' fully and clearly expressed in said conveyance of August 13, 1885.”
It then proceeds:
“Now, therefore, in order 'that the rights of the parties hereto may be more fully and clearly defined, and that the real intention of the parties may be carried out, the said party of the first' part, in consideration of the sum of one dollar and other valuable consideration to her in hand paid, the receipt of which is hereby acknowledged, does hereby grant, bargain, sell and convey unto the said parties of the second part, their heirs and assigns, the right, privilege and easement to use the stairway constructed by said party of the first part, and now'existing, in her two-story brick and stone building heretofore erected by her and now standing upon the parcel first above described and upon the said strip two and one-half feet wide by twenty-nine and one-half feet deep, described in said conveyance of August 13, 1885, which stairway is of the width of fifty-four inches between [317]*317walls, for all purposes pf .access to and egress from any building wbicb may hereinafter be erected upon said adjoining parcel last above described,-together with the right, as defined in said former conveyance, to pierce the wall erected on the south line of said strip at such place or places as may be necessary for the purpose of providing such access or egress; and does hereby covenant' and agree to and with said parties of the second part, their heirs or assigns, to maintain said stairway at all times in good condition and repair at her own expense, and this shall constitute a covenant running with the land and binding-upon her heirs and assigns.”
These recitals would seem to define pretty clearly the rights which the plaintiff’s grantors intended to acquire and hold in the two and one-half foot strip. The purpose of conveying it was said to be to provide a common stairway and to grant the right to use it, and to carry out' that purpose Mrs. Schidver granted a right to use the- stairway and to pierce the party wall and agreed to keep the stairway in a proper ■state of repair. The building is referred to as “her” building. If the ITuses owned a one-half interest in so much of the stairway as was on the two and one-half foot strip, there was no need of any grant of the right to use this part of the stairway. By expressly enumerating the rights reserved and acquired in the strip, it is a fair assumption that such enumeration w7as intended to and did cover all rights intended to be reserved or acquired. Kirch v. Davies, 55 Wis. 287, 11 N. W. 689. That portion of the fourteen-inch strip which was inclosed but not used for a stairway had been exclusively used by defendant’s grantors for twenty-three years when the second contract was made, and nothing was said in the now contract to indicate that the parties did not intend that' it should be so used in the future, and it was so used until the defendant bank commenced to rebuild the building. We think that' under these contracts the beneficial use of the inclosed portion of the strip in question was conferred unon defendant’s grantors, the plaintiff’s grantors [318]
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The following opinion was filed October 28, 1913:
BaRNES, J.
On the appeal of the defendants it is contended (1) the right exists on their part, without' the consent of the plaintiff, to raise the height of the party wall on the south side of the two and one-half foot strip; (2) to inclose such strip to the additional height and use and occupy so much thereof as was not taken up with the stairway; (3) to remove the facing of the party wall and to substitute other material therein, provided the efficiency of the wall was in no way impaired by so doing; (4) to replace the old stairway with a new and better one; and (5) to make the height of the new stairway one foot less than the height of the old one. On all of these propositions except the third and fourth the trial court found adversely to the defendants. The plaintiff on its appeal urges that the court erred in adjudging the right to be in the defendant's to build a new stairway, although they were required to build it of the same height and width as the old stairway and of at least equally good material.
The party wall on the south side of the two and one-half foot strip was substantially sixteen inches thick, so that [315]*315there was inclosed in the building built by Mrs. Schulver a part of the two and one-half foot' strip about fourteen inches in width and twenty-nine and one-half feet in length, excluding end walls. The foundation wall exceeded twenty inches in thickness. The crucial question in the ease is, Did the plaintiff’s grantors own and does the plaintiff own an undivided one-half of all that part of the building that stands on the two and o'ne-half foot strip ? It is conceded that the parties each own a half interest in the soil itself and that it' was the intention that the south wall should be a party wall. If the question be answered in the affirmative, such answer settles most of the disputed questions in plaintiff’s favor, while a negative answer disposes of most of such questions in- defendants’ favor. The task of the court is to determine as best it may what the parties intended by their contracts of 1885 and 1908,' by. reading them in the light of the circumstances which surrounded the parties when they were made. Barkhausen v. C., M. & St. P. R. Co. 142 Wis. 292, 298, 124 N. W. 649, 125 N. W. 680; Shepard v. Pabst, 149 Wis. 35, 45, 135 N. W. 158. These contracts are not ordinary deeds. They were apparently made in duplicate and signed by all the parties, so that all are bound by the covenants and recitals contained therein. The small part of this fourteen-inch strip which is not used for stairway purposes can be of little value to the plaintiff, but that fact' is of no consequence except as it may be helpful in getting at what the parties had in mind. If the defendants are trying to appropriate any property that belongs to the plaintiff, the fact that it may have little value to the latter can furnish no justification for taking it.
The contract of 1885-contained the following:
“And it is further understood and expressly stipulated that the above conveyance carries with it to said first parties [the Huses] the right' to pierce the wall now being erected by said second party [Mrs. Schulver] on lands above con[316]*316veyed to said second party by said first parties at such place or places as may be necessary for tlie purpose of providing means of exit or egress out of or t'o any building which said first parties may hereafter erect or cause to be erected on said adjoining lands.”
It is of some significance that plaintiff’s grantors state the rights which they retain in the two and one-half foot strip, and that nothing is said which indicates any intention to reserve or hold any right' in that portion of the building which actually inclosed a part of such strip.
The contract of 1908 is more definite. It recites the purpose and intention the parties had in mind when the two and one-half foot' strip was conveyed, as follows:
“Whereas, it was -the purpose of the conveyance of said strip of land two and one-half by twenty-nine and one-half feet in dimensions, to provide a common stairway for the building then being erected by said party of the first part and any building which might thereafter be erected on said adjoining parcel, and to grant to the owners of said adjoining parcel the right to use said common stairway, which purposes were not' fully and clearly expressed in said conveyance of August 13, 1885.”
It then proceeds:
“Now, therefore, in order 'that the rights of the parties hereto may be more fully and clearly defined, and that the real intention of the parties may be carried out, the said party of the first' part, in consideration of the sum of one dollar and other valuable consideration to her in hand paid, the receipt of which is hereby acknowledged, does hereby grant, bargain, sell and convey unto the said parties of the second part, their heirs and assigns, the right, privilege and easement to use the stairway constructed by said party of the first part, and now'existing, in her two-story brick and stone building heretofore erected by her and now standing upon the parcel first above described and upon the said strip two and one-half feet wide by twenty-nine and one-half feet deep, described in said conveyance of August 13, 1885, which stairway is of the width of fifty-four inches between [317]*317walls, for all purposes pf .access to and egress from any building wbicb may hereinafter be erected upon said adjoining parcel last above described,-together with the right, as defined in said former conveyance, to pierce the wall erected on the south line of said strip at such place or places as may be necessary for the purpose of providing such access or egress; and does hereby covenant' and agree to and with said parties of the second part, their heirs or assigns, to maintain said stairway at all times in good condition and repair at her own expense, and this shall constitute a covenant running with the land and binding-upon her heirs and assigns.”
These recitals would seem to define pretty clearly the rights which the plaintiff’s grantors intended to acquire and hold in the two and one-half foot strip. The purpose of conveying it was said to be to provide a common stairway and to grant the right to use it, and to carry out' that purpose Mrs. Schidver granted a right to use the- stairway and to pierce the party wall and agreed to keep the stairway in a proper ■state of repair. The building is referred to as “her” building. If the ITuses owned a one-half interest in so much of the stairway as was on the two and one-half foot strip, there was no need of any grant of the right to use this part of the stairway. By expressly enumerating the rights reserved and acquired in the strip, it is a fair assumption that such enumeration w7as intended to and did cover all rights intended to be reserved or acquired. Kirch v. Davies, 55 Wis. 287, 11 N. W. 689. That portion of the fourteen-inch strip which was inclosed but not used for a stairway had been exclusively used by defendant’s grantors for twenty-three years when the second contract was made, and nothing was said in the now contract to indicate that the parties did not intend that' it should be so used in the future, and it was so used until the defendant bank commenced to rebuild the building. We think that' under these contracts the beneficial use of the inclosed portion of the strip in question was conferred unon defendant’s grantors, the plaintiff’s grantors [318]*318reserving an easement in 'the stairway and the right to gain access thereto by making openings in the party wall. The building was originally built with the consent of all the parties, and they had a perfect right to make such provision as. they saw fit regarding its ownership. It was known to all the parties when the first contract was made that Mrs. Schul-ver intended to build on the strip. The situation of the parties and their surroundings when the contract was made tend to indicate that what the Huses desired to secure and retain was an interest in the party wall with a right to penetrate it and the right to use the stairway and to compel Mrs. Schulver to keep it1 in repair.
Having reached the conclusion that plaintiff does not own any part of the stairway, but has only an easement therein, it must be also held that the defendant bank had the right to remove and replace the existing stairway with another equally as good or better and located in the same place, unless damage resulted to the plaintiff from making the change. The owner of property subject to an easement has-the right to make incidental changes in the real estate over which the easement extends, provided there is no substantial’ impairment of the right granted. Low v. Streeter, 66 N. H. 36, 20 Atl. 241, 9 L. R. A. 271; Atkins v. Bordman, 2 Met. 457; Van O’Linda v. Lothrop, 21 Pick. 292; Underwood v. Carney, 1 Cush. 285; Burnham v. Nevins, 144 Mass. 88, 10 N. E. 494; Grafton v. Moir, 130 N. Y. 465, 29 N. E. 974; Chandler v. Goodridge, 23 Me. 78; Pomeroy v. Salt Co. 37 Ohio St. 520; Duross v. Singer, 224 Pa. St. 573, 73 Atl. 951. Numerous decisions in our own court relating to the rights of owners of highways over which the-public have the right to travel, accord with the rule of law above stated.' The owner has the right to cultivate the soil and remove crops from the part of the highway not used by the public and has the right to remove trees standing on the right of way when not necessary for road construction, and [319]*319to pile building material tliereon,' provided the public rights-are not interfered with. A partial collection of such cases will be found under the title “Highways” in volume 2 of Simmons’s Digest, page 1155. See, also, Loberg v. Amherst, 81 Wis. 634, 58 N. W. 1048. The plaintiff has failed to ahow that he would suffer any damage by reason of building the proposed new stairway or by reason of building it one foot less in height than the old one, and holding as we do that he" has only an easement in the stairway, we think it follows as a necessary consequence that the defendants had the right to make the proposed change in the stairway.
Both parties agree, as we understand them, that the wall on the south side of the-two and one-half foot strip was intended to be and is a party wall and that they each own an undivided moiety of the land on which it stands. This being the situation, the defendant bank had the right to raise the height of the wall against plaintiff’s protest, provided it was óf áufficient strength so that it could be raised without injury to plaintiff. There is an unanimity of authority on this proposition that' is unusual. See note to Bright v. Bacon (131 Ky. 848, 116 S. W. 268) 20 L. R. A. n. s. 386, wherein ábtfut twenty cases are cited to the proposition and wherein it,is said .that' there are no cases to the contrary. Additional cases to the same effect are Cubitt v. Porter, 8 B. & C. 257, 265; Wiltshire v. Sidford, 1 Man. & R. 404; Campbell v. Mesier, 4 Johns. Ch. 333. In so far as the case of Andrae v. Haseltine, 58 Wis. 395, 11 N. W. 18, is authority on the question at all, it tends to support the doctrine announced in the cases generally.
But it is said that, conceding the right existed to raise the party wall twenty-eight inches, the right did not exist to inclose any part of the two and one-half foot strip over and ábove what had been inclosed before. We have already stated the right's which we think the plaintiff’s grantors intended to. acquire and reserve in the building on this strip. [320]*320No limitation was placed upon the height of the building in either contract, and it was not even completed when the first contract was made. It is possible that they did not have a keen appreciation of the value of a half interest in the fourteen-inch strip which the parties contemplated would be inclosed in the building, or else did not realize that a small, part of it would be available for other than stairway purposes. This space must necessarily be inclosed, else no roof could be placed on the building. The right existed to raise the party wall, if it could be raised without damage to plaintiff. We do not think it was within the contemplation of the parties or that it would be a reasonable construction of their contracts to hold that defendant is irrevocably bound for all time to come to maintain its building at its original height. If it be raised, this space must necessarily be inclosed in it, and we think plaintiff has no'other or greater rights in the building as raised than he had in the structure as it was originally constructed. lie has the right to use the stairway and pierce the party wall. His grantors have by their contracts and conduct conceded the beneficial use of so much of said strip as is inclosed and neither useful nor necessary for stairway purposes.
In reference to the tearing down of the facing of the party wall so as to construct a granite front and facing, we think the defendant was within its rights. It had the right to repair the party wall, provided plaintiff suffered no damage. There was evidence tending to show that the repair was needed. Such action did not even- temporarily deprive plaintiff of the use of the stairway, because he could not use it until he constructed a building. As to the part of the wall Avhich was north of the party wall and on the east line of the two and one-lialf foot strip, we think it was the property of the defendant and that the defendant could repair or replace it if it' saw fit, so long as such repair or replacement did not deprive the plaintiff of the use of the stairway.
[321]*321To summarize'tlie conclusions readied it is beld:
1. Defendant had the right to remove the facing of the party wall and the part of the wall on the front end of the two jand one-half foot strip to the north of the party wall, for the purpose of replacing.it with newer and more suitable material. '
2. It also had the right to remove the old stairway and to replace it with a new one of concrete and marble in conformity witl^ its plans and to make such stairway one foot less in height than the old stairway.
3. It had the further right to raise the party wall twenty-eight inches and to inclose that part' of the two and one-half foot strip lying north of the party Wall and to use and occupy so much thereof as was néither. necessary nor useful for stairway purposes.
4. It is held that the only interest which the plaintiff has in the portion of the building lying north of the party wall is to have a stairway maintainedv therein substantially like the stairway originally built and the right to pierce the party wall and use said stairway in common with the defendant at any time plaintiff erects a building on the south side of the party wall.
5. It is not intended to be held that, should defendant in the future add one or more additional stories to its building, the plaintiff -would not have the right to insist that stairways be built over the present one to reach the additional stories and also the right to pierce the party wall so as to reach such stairways.
6. Neither does the court wish to be understood that conclusions 1 and 2 would have been reached had it been shown that any legal damage would result to the plaintiff therefrom or that the acts in question would constitute any material interference with the' use and enj'oyment of plaintiff’s easement.
By the Court. — The judgment is affirmed on plaintiff’s [322]*322appeal and reversed on tbe appeal of defendants, and the cause is remanded with directions to enter judgment in accordance with-this opinion.
TimxiN, J., dissents.
A motion for a rehearing was denied, with $25 costs, on January 13, 1914.