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III. WHEN A PARTY-WALL CEASES TO BE SUCH.—A wall ceases to be a party-wall with the state of things which created it and there is no obligation upon either of the adjoining owners to continue the use of a wall as a party-wall after such a change of circumstances, or to unite in the construction of a new wall after the destruction of the old one.1
Phila. (Pa.) 345; Evens v. Jayne, 23 building of such other. Each therefore, Pa. St. 34; Bell v. Bronson, 17 Pa. St. is bound to permit his portion of the 363; Roberts v. Bye, 30 Pa. St. 375, S. wall to stand, and to do no act to im. C. 71 Am. Dec. 710; Child v. Napheys, pair or endanger the strength of his 112 Pa. St. 504: Miller v. Elliott, 5 neighbor's portion so long as the object Cranch C. C. (U. S. ) 543.
for which it was erected, to wit, the In such a case it was held that the common support of the two buildings, building regulations of the District of can be subserve and each will conseColumbia, adopted in 1791, were to be quently be liable to the other for any construed strictly as imposing a burden damage sustained by a disregard of this in invitum on the land and did not obligation. But the obligation ceases authorize the making of windows in a with the purpose for which it was asparty-wall. Corcoran v. Nailor, 6 sumed, namely, the support of the Mackey (D. C.) 580.
houses of which the wall forms a part. The Prov. St. of 1692–3 (5 W. & M.) If these houses, or either of them, are C. 13, 92, providing that any one build- destroyed without fault upon the part ing on his own land in Boston might of the owner, he is not bound to rebuild set half his partition wall on his neigh- in exactly the same style and in exactly bor's land, and that the neighbor, when the same spot because his neighbor dehe should build, should pay for half of mands it. That this is true where the so much of the wall as he should build wall itself is swept away with the house, against, has never been in force in this is settled by authority. It must be Commonwealth. Wilkins v. Jenett, equally so where the wall alone re139 Mass. 29.
mains. A wall is but a portion of a Municipal Ordinances. -- Power to house, and the one is valueless without pass ordinances to authorize the erec- the other. To hold that as long as the tion of party-walls has been held to in- wall stands the owner whose home has clude the power to authorize their erec- been destroyed is compelled to lose the tion upon the application of either use of his lot or to replace the destroyed owner, and without the consent of the with another of exactly the same patother. Hunt v. Ambruster, 14 N. J. tern, is to sacrifice the greater to the Eq. 208.
less, and to impose in perpetuity a serA municipal ordinance relating to vitude which was assumed only for a party-walls has no application to inter- specific purpose.
We think nal walls dividing a building into sepa- the obligation is only that so long as rate shops and a conviction under such the houses stand the owner of neither an ordinance for an alleged offence in shall do anything to impair the properthe construction of internal walls will ty of the other, and either shall be at be quashed. Regina v. Copp, 17 Ont. liberty to impair the property of the Reps. (Can.) 738. See also, Marshall v. other, and either shall be at liberty to Smith, 8 L. R. C. P. 416; 42 L. J. M. repair and keep in order the common C. 108; 28 L. T. 538.
wall; but when without the fault of 1. The owners of adjoining buildings, either the houses are destroyed, the connected by a party-wall resting part- easement is at an end, and each becomes ly upon the soil of each, are neither the owner in severalty of his own soil joint owners or tenants in common of and of so much of the wall as stands the wall. Each is possessed in sever. upon it, with a perfect right to tear it alty of his own soil up to the dividing down or dispose of it in any way he line, and of that portion of the wall sees proper." Hoffman ve Kuhn, 57 which rests upon it; but the soil of each, Miss. 746 S. C. 34 Am. Reps. 491. with the wall belonging to him, is bur- Sherred v. Cisco, 4 Sandf. Sup. Ct. dened with an easement or servitude in (N. Y.) 480; Partridge v. Gilbert, 15 favor of the other, to the end that it N. Y. 601; Antomarchi's Ex. v. Rusmay afford a support to the wall and sell, 63 Ala. 356; s. C., 35 Am. Rep. 40.
IV. RIGHTS, DUTIES AND LIABILITIES OF ADJOINING OWNERS. (a) GENERAL STATEMENT.-In general each must so deal with the party-wall as not to impair any right which the other may have.1
It was held by the New York Court down the half on his land, using due of Appeals in Heartt v. Cruger, 24 N. care, notwithstanding which the other's E. Rep. 841, where an owner of two building fell. Held, that there was no adjoining city lots erected buildings cause of action. Hieatt v. Morris, 10 thereon, with a party-wall between, Ohio St. 523. and afterwards conveyed both lots to 1. O'Daniel v. Bakers' Union, 4 another, receiving back a mortgage Houst. (Del.) 488; Montgomery v. upon one of them, in which the divid. Masonic Hall, 70 Ga. 38; Moody v. ing line was described as running McClelland, 39 Ala. 45; s. c., 84 Am. through the center of a party-wall, and Dec. 770; Dowling v. Hennings, 20 where the defendant acquired title to Md. 179; s. c., 83 Am. Dec. 545; Hoffthis lot through a conveyance upon man v. Kuhn, 57 Miss. 746, Eno v. foreclosure of this mortgage, and mesne Del Vecchio, 4 Duer (N. Y.) 53; s. C., conveyances, and both buildings were 6 Duer 17; Sherred v. Cisco, 4 Sand. afterwards destroyed by fire, so that Sup. Ct. (N. Y.) 480; Earl v. Beadlesonly the foundation remained, that de ton, 42 N. Y. Superior Ct. 294; Webfendant's easement terminated with the ster v. Stevens, 5 Duer (N. Y.) 553; destruction of the buildings.
Sanders v. Martin, 2 Lea (Tenn.) 213; By deed in fee, a grantee had the s. C., 31 Am. Rep. 598; Brown v. privilege of putting the wall for the Windsor, 1 Cromp. & J. 20. third story of his house on the top of Plaintiff sold one-half his wall to one the adjoining wall of the grantor. F to be used as a party wall, and F, in Held, that the grantor and those claim- constructing his building entered into ing under him could not recover of the an agreement with a bank to erect a grantee the land on which the party party wall on the other side of F's wall stood, though all the building of building. The bank constructed a very the grantor, except this party-wall, had heavy vault and failed to put proper been burnt down. Brondage v. War- foundations under it, by reason of ner, 2 Hill (N. Y.) 145.
which the bank building settled, and Wall Destroyed Before One Party Had the walls pressing against the building Built.-Adjoining owners agreed that of F caused his building to press against one who was about to build should and injure the building of the plaintiff. place the wall of his building one half Held, in an action against the bank, on the land of the other, who should that plaintiff, though he may have have the right to use it when he built known in what manner the bank was on his lot. The wall was built as constructing the foundations, did not agreed but destroyed by fire before the in selling one half his wall to F, assume other party built. Subsequently both all risks of defective construction by built at the same time, erecting a new the bank. Feige v. First Nat. Bank wall which was used as a party-wall. (Mich.) 24 N. W. Rep. 772. Held, that the one who built the first Windows.-A contract for the erecwall was not bound to rebuild it after tion of a party-wall which provides its destruction, the original agreement that the person on whose land it is to would not apply to the second wall, be partly built shall not “have the right and that both should bear the ex- to obstruct the light for any window" pense of building the second wall. which the other party “shall build into Huck v. Flentye, So Ill. 258.
said wall," gives such other party, by Where One Owner Desired to change. implication, the right to build windows -A and B built houses at the same in such wall. Grimley v. Davidson time, and built a partition wall on the (Ill.) 24 N. E. 439. division line at joint expense, without Excavation-Support.-Under N. Y. any agreement as to its maintenance. Laws 1882, ch. 410, $ 474, relating to After a peaceful occupancy of twenty- excavations for building purposes in one years, A's grantee 'notified B's New York city, the duty of one makgrantee, that he was about to pull down ing an excavation to preserve a wall half the partition wall, in order to erect from injury does not cease with the a better building, and against the ob- completion of the excavation. There jections of the latter, the former pulled must be also a support so that the wall
(6) ERECTION AND USE.-In the construction of a party-wall the one who builds it is under a duty to erect it in a proper and skillful manner, and if he fails to do so, he is liable for the resulting damage."
"The use of a party-wall in its full unrestricted sence, embraces not only the use of the interior face or side of the wall, but also such use of it as is necessary to form a complete and perfect junction, in an ordinary good mechanical manner, between it and the other exterior walls of the house."2
(c) ALTERATION.–Either party is at liberty to make any change in a party-wall, by underpinning or increasing its height, that he sees fit, provided that, in so doing, he does not interfere with or impair the rights of the other owner. The party making the change is liable for any damage which may result therefrom. 3 will “remain as stable as before." A venience of both of the tenements contrary construction of the statute which it separates, and to permit either would be unreasonable. Bernheimer party to make any use of it which he 0. Kilpatrick, 53 Hun (N. Y.) 316. may require, either by deepening the
The statute providing that one dig- foundations or increasing the height, so ging to a depth of more than 10 feet far as it can be done without injury to below the curb-line shall protect "party the other." The party making such or other walls standing upon or near change is obligated, to observe care not the boundary lines" does not require to occasion injury to the adjoining him to protect foundations of a stoop owner, but the authorities generally standing wholly on the land of the ad- seem to hold that in so far as he can joining owner. Berry v. Todd, 14 use the party wall in the improvement Daly 450
of his own property, without injury to 1. Gorham v. Gross, 125 Mass. 232; such wall or the adjoining property there Glover v. Mersman, 4 Mo. App. 90. is no good reason why he may not be
One building a party-wall is bound permitted to do so." Field v. Leiter, 118 to construct it of sufficient strength to Ill. 17; Graves v. Smith (Ala.) 6 So. sustain the one of which it forins a Rep. 308; Montgomery v. Masonic Hall, part and another of similar size and 70 Ga. 38; Phillips v. Bordman, 4 Allen character. Gilbert v. Woodruff, 40 (Mass.) 147; Quinn v. Morse, 130 Iowa 320; Cutter v. Williams, 3 Allen Mass. 317; Matthews v. Dixey (Mass.) (Mass.) 196.
22 N. E. Rep. 61; Everett v. Edwards 2. Fettretch v. Leamy, 9 Bosw. (N. (Mass.) 22 Ñ. E. Rep. 52; Dowling v. Y.) 311; Nash v. Kemp, 49 How. Pr. Hennings, 20 Md. 179; s. c., 83 Am. (N. Y.) 522:
Dec. 545; Brooks v. Curtis, 50 N. Y. "The land lying in front of a party- 639; s. c., 10 Am. Rep. 545; Eno v. wall, between that and the line of the Del Vecchio, 4 Duer (N. Y.) 53; street, is to be exclusively enjoyed by Schile v. Brokhahus, 80 N. Y. 614; its owners, freed from any burden of Keller v. Abrahams, 13 Daly (N. Y.) easement growing out of a simple party 188; McGittigan v. Evans, 8 Phila. wall agreement, and is to be occupied (Pa.) 264; Western Banks App. 102 by the adjoining owners according to Pa. St. 171; Sanders v. Martin, 2 Lea the boundary lines of their lots for the (Tenn.) 213; s. C., 31 Am. Rep. 598; construction of their fronts. Nash v. Danenhauser v. Devine, 51 Tex. 480; Kemp, 49 How. Pr. (N. Y.) 522. Andrae v. Haseltine, 58 Wis. 395; s. C.,
Burton u. Moffitt, 3 Or. 29; Jamison 49 Am. Rep. 635; Bradbee v. Christ's v. Duncan, 12 La. Ann. 785; Marion v. Hospital, 4 Man. & G. 761; Major v. Johnson, 23 La. Ann. 597; Moore v. Park Lane Co., L. R., 2 Eq. 453. Rayner. 58 Md. 411.
Compare McLaughlin v. Cecconi, 141 3. “The fairer view and the one gen- Mass. 252; Hieatt v. Morris, 10 Ohio erally adopted in legislative provisions St. 523; 8. C., 78 Am. Dec. 280. on the subject, in this and other coun- Where two adjoining houses are suptries, is to treat a party-wall as a struct- ported by a party-wall owned in comure for the common benefit and con- mon, and partly on the land of each owner, and which has been used as such injury consequent thereon, so far as for over twenty years, and one owner, they are inseparable from the exercise without the consent of the other, re- of the right. moves the wall while it is suitable for He is bound, at his peril, to replace the purposes for which it was erected, the neighbor, at the end of the work, in and erects a store on his lot, and a new a position every way equal to that party-wall, he will be liable to the other which he occupied at its beginning, and owner for any loss of rent, and the ex- to furnish him a new wall, fit and ade. pense of repairs rendered necessary by quate to support his building, and for such removal. Potter v. White, 6 all shortcomings is liable to his neighBosw. (N. Y.) 644; Schile v. Brok- bor in damages.-Heine v. Merrick hahns, 80 N. Y. 614.
(La.) 5 So. Rep. 760. Tearing Down and Repairing.-If a One owner of a party-wall may build party desiring to erect a building find it to a greater height to support an the adjoining wall too weak to support addition to his building, doing no injury the building which he is about to erect, to his co-owner; and the mere fact that he may tear down such wall and replace in carrying up the wall he violates a it with a stronger one. In so doing he building act will not render him liable must take great care to prevent any to such co-owner. Everett v. Edwards, more damage than is absolutely neces- 149 Mass. 588. sary. Gettwerth v. Hedden, 30 La. The owner of land on the north side Ann. pt. 1, 30; Cubitt v. Porter, 2 M. & of a city street conveyed two adjoining R. 267; 8 B. & C. 257; Standard Bank lots to different persons, each deed pro-, of B. S. A. 9 Ch. D. 68; 47 L. J. Ch. viding that the center of the easterly 554; 38 L. T. 172; 26 W. R. 492; Flu. and westerly partition walls of the ger v. Hocken, 1 F. & F. 142.
first erected on the said The owner of the weak wall cannot land shall be placed on the division lines under the circumstances mentioned between the granted premises and the above be compelled to replace the wall adjoining lots, and that the one who with a stronger one at his own expense first built such a wall should be paid by Ferguson v. Fallons, 2 Phila. (Pa.) 168. the other, upon his using it, one half its
The principle that the builder of a cost. The grantee of the westerly lot new house may take down a party-wall erected a house on the front part therethat is insufficient for his purposes, and of, with such a wall on the division line rebuild it at his own expense, is no in- between the two, and built a wooden vasion of the absolute right of property, fence on the rest of the line. SubseEvens v. Jayne, 23 Penn. State R. (in quently, the grantee of the other lot Harris,) 34.
proceeded to build a higher and deeper The right granted to one co-proprie- house thereon, conforming in all re. tor of a wall in common by Civil Code spects to a building act in force in the La. art. 682, to demolish the old wall city, and for that purpose to carry up when found insufficient to bear the addi- such wall and to extend it to the rear, tional height and weight of a proposed necessarily displacing a part of the new structare, and to build a new and fence. Held, that such additions could thicker wall, adequate to support the rightfully be made without payment new building as well as that of the being first made of one-half the cost of neighbor, at his own expense, and tak- the existing wall, if no injury was done ing the additional thickness from his thereto, and that a bill in equity to preown estate, is an absolute right, and vent their being made could not be the previous consent of the neighbor is maintained. Matthews v. Dixey, 149 unnecessary.
The right to build the new and So in Louisiana, one of the co-owners thicker wall includes the right to may demolish the old wall, if he finds demolish the old wall, to establish a it insufficient to support a contemplated sufficient foundation for the new one, new structure, and may rebuild on a to disturb the neighbors enjoyment, wider foundation, and this he may do and to enter upon his property to the without the consent of the owner. extent necessary for the principal Heine v. Merrick, 41 La. Ann, 194. right.
So under an agreement that the par. When one proprietor exercises the ty-wall shall be used free of expense in right granted by Civil Code La. article the erection of a building, while confer682, his neighbor is bound to bear, with- ring by implication a right to raise the out indemnity, the imconvenience and height of the wall, does not authorize
(d) REPAIR.— Either owner may repair a party-wall, and after giving due notice of his intention to the adjoining owner he is not liable for any damage resulting from such repairs if they be made with dispatch and without negligence.
(e) CONTRIBUTION.—There is no obligation to contribute to the original cost of erecting a party-wall in the absence of an agreement to do so,2 but the law will sometimes imply an agreethe insertion of windows or openings it could not be done to change the chartherein to the violation of a cross-ease- acter of the house, because the other ment of the adjoining owner. Graves house was purchased subject to the v. Smith, 87 Ala. 450.
party-wall easement with the under. Where a wall between adjoining standing that it should be a party-wall houses has for more than 21 years been between first class residences only. used by their respective owners, it will Musgrave v. Sherwood, 60 How. Pr. be regarded as a party-wall, whether (N. Y.) 339. equally on the lot of each or not and Contribution not Condition Precedent. one owner will not be liable in trespass -Payment by the party seeking to enfor using it on rebuilding or for tearing large the wall of his share of the costs it down, and replacing it when con- of the original wall is not a condition demned by the building inspector. precedent to the exercise of his rights -McVey V. Durkin (Pa.) 20 Atl. therein.Matthews v. Dixey (Mass.) Rep. 541.
22 N. E. Rep 61. It was held in Berry v. Todd, 14 Lineal Extensions. Where one owner Daly (N. Y.) 450, that while an owner built a party-wall some distance back of a party wall might increase its thick- from the street line and it so remained ness, length, or heighth within the for fifty years after the adjoining owner limits of his own lot, he was liable for had built upon his lot. Held, that the injury produced to his neighbor's first builder could not extend the party. premises.
wall to the street line without the conA building owner who pulls down a sent of the adjoining owner. Duncan party-wall under the authority of the v. Hunbest, 2 Brewst. (Pa.) 362. Metropolitan Building Act, 1855, 18 & See Matthews v. Dixey (Mass.) 22 19 Vict. c. 122, is not bound to protect N. E. Rep. 61. by a boarding or otherwise the rooms 1. Moore v. Rayner, 58 Md. 411; of the adjoining owner which are left Hoffman v. Kuhn, 57 Miss. 746; exposed to the weather during the time Crashaw v. Sumner, 56 Mo. 517; Patthat the wall is being pulled down and ridge v. Gilbert, 15 N. Y. 601; s. C., rebuilt. Thompson v. Hill, 5 L. R. C. 69 Am. Dec. 632; Schile v. Brokhahns, P. 564;
32 L. J. C. p. 264; 22 L. T. 820; 80 N. Y. 614; Sherred v. Cisco, 4 18 W. R. 1070.
Sandt. (N. Y.) 480; Eno v. Del See also Bryer v. Willis, 23 L. T. 463; Vecchio, 4 Duer (N. Y.) 53; s. c., 6 Id. 19 W. R. 102; Rex v. Hungerford Mar. 17; Sanders v. Martin, 3 Lea (Tenn.) ket Company, 2 N. & M. 340; Knight 213; s. C., 31 Am. Rep. 598. v. Pursell, 11 Ch. D. 412; 48 L. J. Ch. 2. Preiss v. Parker, 67 Ala. 500; 395; 40 L. T. 391; 27 W. R. 817. Antomarchi v. Russell, 63 Ala. 356;
Changed Character of Adjoining House. s. C., 35 Am. Reps. 40; Orman v. Day, -One party purchased a dwelling 5 Fla. 385; McCord v. Herrick, 18 ill. house with provision in the deed that App. 423; Wilkins v. Jewett, 139 Mass. division wall should be a party-wall, but 29; Sherred v. Cisco, 4 Sandf. (N. Y.) with the understanding that the adjoin- 480; Sanders v. Martin, 2 Lea (Tenn.) ing house was to be a private residence. 213; s. C., 31 Am. Rep. 598. Subsequently the adjoining house was Where a party has built a house altered into a family hotel and in makwholly upon his own lot and his neighing such alterations the owner raised bor subsequently erected a house on the party-wall. Application for injunc- the adjoining lot and made use of the tion was made to restrain any addition wall of the adjoining house. Held, to the wall for the purposes intended. that the builder of the second house Held, that though the wall might be was under no duty to contribute to the raised for the purpose of improving the cost of erection of the wall so used in adjoining house as a private residence, the absence of damage arising from