Phila. (Pa.) 345; Evens v. Jayne, 23 Pa. St. 34; Bell v. Bronson, 17 Pa. St. 363; Roberts v. Bye, 30 Pa. St. 375, S. Č. 71 Am. Dec. 710; Child v. Napheys, 112 Pa. St. 504: Miller v. Elliott, 5 Cranch C. C. (U. S. ) 543.

In such a case it was held that the building regulations of the District of Columbia, adopted in 1791, were to be construed strictly as imposing a burden in invitum on the land and did not authorize the making of windows in a party-wall. Corcoran v. Nailor, 6 Mackey (D. C.) 580.

The Prov. St. of 1692-3 (5 W. & M.) c. 13, §2, providing that any one building on his own land in Boston might set half his partition wall on his neighbor's land, and that the neighbor, when he should build, should pay for half of so much of the wall as he should build against, has never been in force in this Commonwealth. Wilkins v. Jenett, 139 Mass. 29.

to

Municipal Ordinances. - Power pass ordinances to authorize the erection of party-walls has been held to include the power to authorize their erection upon the application of either owner, and without the consent of the other. Hunt v. Ambruster, 14 N. J. Eq. 208.

A municipal ordinance relating to party-walls has no application to internal walls dividing a building into separate shops and a conviction under such an ordinance for an alleged offence in the construction of internal walls will be quashed. Regina v. Copp, 17 Ont. Reps. (Can.) 738. See alsó, Marshall v. Smith, 8 L. R. C. P. 416; 42 L. J. M. C. 108; 28 L. T. 538.

1. The owners of adjoining buildings, connected by a party-wall resting partly upon the soil of each, are neither joint owners or tenants in common of the wall. Each is possessed in severalty of his own soil up to the dividing line, and of that portion of the wall which rests upon it; but the soil of each, with the wall belonging to him, is burdened with an easement or servitude in favor of the other, to the end that it may afford a support to the wall and

building of such other. Each therefore, is bound to permit his portion of the wall to stand, and to do no act to impair or endanger the strength of his neighbor's portion so long as the object for which it was erected, to wit, the common support of the two buildings, can be subserved; and each will consequently be liable to the other for any damage sustained by a disregard of this obligation. But the obligation ceases with the purpose for which it was assumed, namely, the support of the houses of which the wall forms a part. If these houses, or either of them, are destroyed without fault upon the part of the owner, he is not bound to rebuild in exactly the same style and in exactly the same spot because his neighbor demands it. That this is true where the wall itself is swept away with the house, is settled by authority. It must be equally so where the wall alone remains. A wall is but a portion of a house, and the one is valueless without the other. To hold that as long as the wall stands the owner whose home has been destroyed is compelled to lose the use of his lot or to replace the destroyed with another of exactly the same pattern, is to sacrifice the greater to the less, and to impose in perpetuity a servitude which was assumed only for a specific purpose. We think the obligation is only that so long as the houses stand the owner of neither shall do anything to impair the property of the other, and either shall be at liberty to impair the property of the other, and either shall be at liberty to repair and keep in order the common wall; but when without the fault of either the houses are destroyed, the easement is at an end, and each becomes the owner in severalty of his own soil and of so much of the wall as stands upon it, with a perfect right to tear it down or dispose of it in any way he sees proper." Hoffman v. Kuhn, 57 Miss. 746 S. C. 34 Am. Reps. 491.

Sherred v. Cisco, 4 Sandf. Sup. Ct. (N. Y.) 480; Partridge v. Gilbert, 15 N. Y. 601; Antomarchi's Ex. v. Russell, 63 Ala. 356; s. c., 35 Am. Rep. 40.

It was held by the New York Court of Appeals in Heartt v. Cruger, 24 N. E. Rep. 841, where an owner of two adjoining city lots erected buildings thereon, with a party-wall between, and afterwards conveyed both lots to another, receiving back a mortgage upon one of them, in which the dividing line was described as running through the center of a party-wall, and where the defendant acquired title to this lot through a conveyance upon foreclosure of this mortgage, and mesne conveyances, and both buildings were afterwards destroyed by fire, so that only the foundation remained, that defendant's easement terminated with the destruction of the buildings.

By deed in fee, a grantee had the privilege of putting the wall for the third story of his house on the top of the adjoining wall of the grantor. Held, that the grantor and those claiming under him could not recover of the grantee the land on which the party wall stood, though all the building of the grantor, except this party-wall, had been burnt down. Brondage v. Warner, 2 Hill (N. Y.) 145.

Wall Destroyed Before One Party Had Built.-Adjoining owners agreed that one who was about to build should place the wall of his building one half on the land of the other, who should have the right to use it when he built on his lot. The wall was built as agreed but destroyed by fire before the other party built. Subsequently both built at the same time, erecting a new wall which was used as a party-wall. Held, that the one who built the first wall was not bound to rebuild it after its destruction, the original agreement would not apply to the second wall, and that both should bear the expense of building the second wall. Huck v. Flentye, So Ill. 258.

Where One Owner Desired to Change. -A and B built houses at the same time, and built a partition wall on the division line at joint expense, without any agreement as to its maintenance. After a peaceful occupancy of twentyone years, A's grantee notified B's grantee, that he was about to pull down half the partition wall, in order to erect a better building, and against the objections of the latter, the former pulled

down the half on his land, using due care, notwithstanding which the other's building fell. Held, that there was no cause of action. Hieatt v. Morris, 10 Ohio St. 523.

1. O'Daniel v. Bakers' Union, 4 Houst. (Del.) 488; Montgomery v. Masonic Hall, 70 Ga. 38; Moody v. McClelland, 39 Ala. 45; s. c., 84 Am. Dec. 770; Dowling v. Hennings, 20 Md. 179; s. c., 83 Am. Dec. 545; Hoffman v. Kuhn, 57 Miss. 746, Eno v. Del Vecchio, 4 Duer (N. Y.) 53; s. c., 6 Duer 17; Sherred v. Cisco, 4 Sand. Sup. Ct. (N. Y.) 480; Earl v. Beadleston, 42 N. Y. Superior Ct. 294; Webster v. Stevens, 5 Duer (N. Y.) 553; Sanders v. Martin, 2 Lea (Tenn.) 213; s. C., 31 Am. Rep. 598; Brown Windsor, 1 Cromp. & J. 20.

v.

of

Plaintiff sold one-half his wall to one F to be used as a party wall, and F, in constructing his building entered into an agreement with a bank to erect a party wall on the other side of F's building. The bank constructed a very heavy vault and failed to put proper foundations under it, by reason which the bank building settled, and the walls pressing against the building of F caused his building to press against and injure the building of the plaintiff. Held, in an action against the bank, that plaintiff, though he may have known in what manner the bank was constructing the foundations, did not in selling one half his wall to F, assume all risks of defective construction by the bank. Feige v. First Nat. Bank (Mich.) 24 N. W. Rep. 772.

Windows. A contract for the erection of a party-wall which provides that the person on whose land it is to be partly built shall not "have the right to obstruct the light for any window" which the other party "shall build into said wall," gives such other party, by implication, the right to build windows in such wall. Grimley v. Davidson (Ill.) 24 N. E. 439.

Excavation-Support.-Under N. Y. Laws 1882, ch. 410, § 474, relating to excavations for building purposes in New York city, the duty of one making an excavation to preserve a wall from injury does not cease with the completion of the excavation. There must be also a support so that the wall

will "remain as stable as before." A contrary construction of the statute would be unreasonable. Bernheimer v. Kilpatrick, 53 Hun (N. Y.) 316.

The statute providing that one digging to a depth of more than 10 feet below the curb-line shall protect "party or other walls standing upon or near the boundary lines" does not require him to protect foundations of a stoop standing wholly on the land of the adjoining owner. Berry v. Todd, 14 Daly 450.

1. Gorham v. Gross, 125 Mass. 232; Glover v. Mersman, 4 Mo. App. 90. One building a party-wall is bound to construct it of sufficient strength to sustain the one of which it forms a part and another of similar size and character. Gilbert v. Woodruff, 40 Iowa 320; Cutter v. Williams, 3 Allen (Mass.) 196.

2. Fettretch v. Leamy, 9 Bosw. (N. Y.) 511; Nash v. Kemp, 49 How. Pr. (N. Y.) 522.

"The land lying in front of a partywall, between that and the line of the street, is to be exclusively enjoyed by its owners, freed from any burden of easement growing out of a simple party wall agreement, and is to be occupied by the adjoining owners according to the boundary lines of their lots for the construction of their fronts. Nash v. Kemp, 49 How. Pr. (N. Y.) 522.

Burton v. Moffitt, 3 Or. 29; Jamison v. Duncan, 12 La. Ann. 785; Marion v. Johnson, 23 La. Ann. 597; Moore v. Rayner. 58 Md. 411.

3. "The fairer view and the one generally adopted in legislative provisions on the subject, in this and other countries, is to treat a party-wall as a structure for the common benefit and con

venience of both of the tenements which it separates, and to permit either party to make any use of it which he may require, either by deepening the foundations or increasing the height, so far as it can be done without injury to the other." The party making such change is obligated to observe care not to occasion injury to the adjoining owner, but the authorities generally seem to hold that in so far as he can use the party wall in the improvement of his own property, without injury to such wall or the adjoining property there is no good reason why he may not be permitted to do so." Field v. Leiter, 118 Ill. 17; Graves v. Smith (Ala.) 6 So. Rep. 308; Montgomery v. Masonic Hall, 70 Ga. 38; Phillips v. Bordman, 4 Allen (Mass.) 147; Quinn v. Morse, 130 Mass. 317; Matthews v. Dixey (Mass.) 22 N. E. Rep. 61; Everett v. Edwards (Mass.) 22 Ñ. E. Rep. 52; Dowling v. Hennings, 20 Md. 179; s. c., 83 Am. Dec. 545; Brooks v. Curtis, 50 N. Y. 639; s. c., 10 Am. Rep. 545; Eno v. Del Vecchio, 4 Duer (N. Y.) 53; Schile v. Brokhahus, 80 N. Y. 614; Keller v. Abrahams, 13 Daly (N. Y.) 188; McGittigan v. Evans, 8 Phila. (Pa.) 264; Western Banks App. 102 Pa. St. 171; Sanders v. Martin, 2 Lea (Tenn.) 213; s. c., 31 Am. Rep. 598; Danenhauser v. Devine, 51 Tex. 480; Andrae v. Haseltine, 58 Wis. 395; s. C., 49 Am. Rep. 635; Bradbee v. Christ's Hospital, 4 Man. & G. 761; Major v. Park Lane Co., L. R., 2 Eq. 453. Compare McLaughlin v. Cecconi, 141 Mass. 252; Hieatt v. Morris, 10 Ohio St. 523; s. c., 78 Am. Dec. 280.

Where two adjoining houses are supported by a party-wall owned in common, and partly on the land of each

owner, and which has been used as such for over twenty years, and one owner, without the consent of the other, removes the wall while it is suitable for the purposes for which it was erected, and erects a store on his lot, and a new party-wall, he will be liable to the other owner for any loss of rent, and the expense of repairs rendered necessary by such removal. Potter v. White, 6 Bosw. (N. Y.) 644; Schile v. Brokhahns, So N. Y. 614.

Tearing Down and Repairing.-If a party desiring to erect a building find the adjoining wall too weak to support the building which he is about to erect, he may tear down such wall and replace it with a stronger one. In so doing he must take great care to prevent any more damage than is absolutely necessary. Gettwerth v. Hedden, 30 La. Ann. pt. 1, 30; Cubitt v. Porter, 2 M. & R. 267; 8 B. & C. 257; Standard Bank of B. S. A. 9 Ch. D. 68; 47 L. J. Ch. 554; 38 L. T. 172; 26 W. R. 492; Fluger v. Hocken, 1 F. & F. 142.

The owner of the weak wall cannot under the circumstances mentioned above be compelled to replace the wall with a stronger one at his own expense Ferguson v. Fallons, 2 Phila. (Pa.) 168. The principle that the builder of a new house may take down a party-wall that is insufficient for his purposes, and rebuild it at his own expense, is no in vasion of the absolute right of property. Evens v. Jayne, 23 Penn. State R. (1 Harris,) 34.

The right granted to one co-proprietor of a wall in common by Civil Code La. art. 682, to demolish the old wall when found insufficient to bear the additional height and weight of a proposed new structure, and to build a new and thicker wall, adequate to support the new building as well as that of the neighbor, at his own expense, and taking the additional thickness from his own estate, is an absolute right, and the previous consent of the neighbor is unnecessary.

The right to build the new and thicker wall includes the right to demolish the old wall, to establish a sufficient foundation for the new one, to disturb the neighbors enjoyment, and to enter upon his property to the extent necessary for the principal right.

When one proprietor exercises the right granted by Civil Code La. article 682, his neighbor is bound to bear, without indemnity, the imconvenience and

injury consequent thereon, so far as they are inseparable from the exercise of the right.

He is bound, at his peril, to replace the neighbor, at the end of the work, in a position every way equal to that which he occupied at its beginning, and to furnish him a new wall, fit and adequate to support his building, and for all shortcomings is liable to his neighbor in damages.-Heine v. Merrick (La.) 5 So. Rep. 760.

One owner of a party-wall may build it to a greater height to support an addition to his building, doing no injury to his co-owner; and the mere fact that in carrying up the wall he violates a building act will not render him liable to such co-owner. Everett v. Edwards, 149 Mass. 588.

The owner of land on the north side of a city street conveyed two adjoining lots to different persons, each deed providing that the center of the easterly and westerly partition walls of the

houses

.. first erected on the said land shall be placed on the division lines between the granted premises and the adjoining lots, and that the one who first built such a wall should be paid by the other, upon his using it, one half its cost. The grantee of the westerly lot erected a house on the front part thereof, with such a wall on the division line between the two, and built a wooden fence on the rest of the line. Subsequently, the grantee of the other lot proceeded to build a higher and deeper house thereon, conforming in all respects to a building act in force in the city, and for that purpose to carry up such wall and to extend it to the rear, necessarily displacing a part of the fence. Held, that such additions could rightfully be made without payment being first made of one-half the cost of the existing wall, if no injury was done thereto, and that a bill in equity to prevent their being made could not be maintained. Matthews v. Dixey, 149 Mass. 595.

So in Louisiana, one of the co-owners may demolish the old wall, if he finds it insufficient to support a contemplated new structure, and may rebuild on a wider foundation, and this he may do without the consent of the owner. Heine v. Merrick, 41 La. Ann. 194.

So under an agreement that the party-wall shall be used free of expense in the erection of a building, while conferring by implication a right to raise the height of the wall, does not authorize

the insertion of windows or openings therein to the violation of a cross-easement of the adjoining owner. Graves v. Smith, 87 Ala. 450.

Where a wall between adjoining houses has for more than 21 years been used by their respective owners, it will be regarded as a party-wall, whether equally on the lot of each or not and one owner will not be liable in trespass for using it on rebuilding or for tearing it down, and replacing it when condemned by the building inspector. -McVey v. Durkin (Pa.) 20 Atl. Rep. 541.

It was held in Berry v. Todd, 14 Daly (N. Y.) 450, that while an owner of a party-wall might increase its thickness, length, or heighth within the limits of his own lot, he was liable for injury produced to his neighbor's premises.

A building owner who pulls down a party-wall under the authority of the Metropolitan Building Act, 1855, 18 & 19 Vict. c. 122, is not bound to protect by a boarding or otherwise the rooms of the adjoining owner which are left exposed to the weather during the time that the wall is being pulled down and rebuilt. Thompson v. Hill, 5 L. R. C. P. 564; 32 L. J. C. p. 264; 22 L. T. 820; 18 W. R. 1070.

See also Bryer v. Willis, 23 L. T. 463; 19 W. R. 102; Rex v. Hungerford Market Company, 2 N. & M. 340; Knight v. Purcell, 11 Ch. D. 412; 48 L. J. Ch. 395; 40 L. T. 391; 27 W. R. 817.

Changed Character of Adjoining House. ---One party purchased a dwelling house with provision in the deed that division wall should be a party-wall, but with the understanding that the adjoining house was to be a private residence. Subsequently the adjoining house was altered into a family hotel and in making such alterations the owner raised the party-wall. Application for injunction was made to restrain any addition to the wall for the purposes intended. Held, that though the wall might be raised for the purpose of improving the adjoining house as a private residence,

it could not be done to change the character of the house, because the other house was purchased subject to the party-wall easement with the understanding that it should be a party-wall between first class residences only. Musgrave v. Sherwood, 60 How. Pr. (N. Y.) 339.

Contribution not Condition Precedent. -Payment by the party seeking to enlarge the wall of his share of the costs of the original wall is not a condition precedent to the exercise of his rights therein.-Matthews v. Dixey (Mass.) 22 N. E. Rep 61.

Lineal Extensions.-Where one owner built a party-wall some distance back from the street line and it so remained for fifty years after the adjoining owner had built upon his lot. Held, that the first builder could not extend the partywall to the street line without the consent of the adjoining owner. Duncan v. Hunbest, 2 Brewst. (Pa.) 362..

See Matthews v. Dixey (Mass.) 22 N. E. Rep. 61.

1. Moore v. Rayner, 58 Md. 411; Hoffman v. Kuhn, 57 Miss. 746; Crashaw v. Sumner, 56 Mo. 5173 Patridge v. Gilbert, 15 N. Y. 601; s. c., 69 Am. Dec. 632; Schile v. Brokhahns, 80 N. Y. 614; Sherred v. Cisco, 4 Sandt. (N. Y.) 480; Eno v. Dei Vecchio, 4 Duer (N. Y.) 53; s. c., 6 Id. 17; Sanders v. Martin, 2 Lea (Tenn.) 213; s. c., 31 Am. Rep. 598.

2. Preiss v. Parker, 67 Ala. 500; Antomarchi v. Russell, 63 Ala. 356; s. c., 35 Am. Reps. 40; Orman v. Day, 5 Fla. 385; McCord v. Herrick, 18 III. App. 423; Wilkins v. Jewett, 139 Mass. 29; Sherred v. Cisco, 4 Sandf. (N. Y.) 480; Sanders v. Martin, 2 Lea (Tenn.) 213; s. c., 31 Am. Rep. 598.

Where a party has built a house wholly upon his own lot and his neighbor subsequently erected a house on the adjoining lot and made use of the wall of the adjoining house. Held, that the builder of the second house was under no duty to contribute to the cost of erection of the wall so used in the absence of damage arising from