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moieties, each moiety being subject to a cross-easement in favor of the owner of the other moiety.1

II. HOW CREATED. (a) PARTY WALL AGREEMENTS.-A wall' may become a party wall by contract express or implied, by prescription or by statute.2

laterally a party-wall or such distance as it is used by both owners and no further; Knight v. Pursell, 11 Ch. D. 412. 1. "Land covered by a party wall remains the several property of the owner of each half, but the title of each owner is qualified by the easement to which the other is entitled of supporting his building by means of the half of the wall belonging to his neighbor." Ingals v. Plamondon et al. 75 Ill. 118. Gibson v. Holden, 115 Ill. 199; Wilcox v. Danforth, 5 Ill. App. 378; Nash v. Kemp, 49 How. (N. Y.) Pr. 522; Sherred v. Cisco, 4 Sandf. (N. Y.) 480; Partridge v. Gilbert, 15 N. Y. 601; Hendricks v. Stark, 37 N. Y. 106; s. c. 93 Am. Dec. 549; Brooks v. Curtis, 50 N. Y. 639; s. c. 10 Am. Rep. 545; Bloch v. Isham, 28 Ind. 37, s. c. 92 Am. Dec. 287; Hoffman v. Kuhn, 57 Miss. 746; 34 Am. Reps. 491; Burton v. Moffit, 3 Or. 29; Graves v. Smith, (Ala.) 6 So. Rep. 308; Sanders v. Martin, 2 Lea (Tenn.) 213; s. c. 31 Am. Rep. 598; Andrae v. Haseltine, 58 Wis. 395; s. c. 46 Am. Rep. 635. For a reference to the English cases see 5 Fisher Dig. 990 &

seq.

Part Only May be Party Wall.-A deed conveyed to M. certain premises, extending to the west line of the west wall of a brick building upon the premises; so that it included the whole of the west wall; with the reservation that the owners of the ground on both sides should have the mutual use of the present partition wall. At that time there was a small one-story brick building on the lot adjoining on the west. Subsequently M.'s grantors conveyed this other lot to P., who tore down this small building, and erected one much higher, and extending further along on M.'s wall. Held, that the reservation in the deed to M. extended only to such portions of the west wall as were then used as a partition between the buildings, and that P. had no right to the mutual use of any other, or greater part of this west wall. Price v. McConnell, 27 Ill. 255. See also, Weston v. Arnold, 8 L. R. Ch. 1084; 43 L. J. Ch. 123; 22 W. R. 284.

Not an Incumbrance.-It is true that

the erection of a party-wall creates a community of interest between neighboring proprietors, but there is no just sense in which the reciprocal easement for its preservation can be deemed a legal incumbrance upon the property. The benefit thus secured to each is not converted into a burden by the mere fact that it is mutual and not exclusive. Hendrick v. Stark, 37 N. Y. 106; s. c. 93 Am. Dec. 549; Butterworth v. Crawford, 3 Daly (N. Y.) 57; Mohr v. Parmelee, 43 N. Y. Super. Ct. 320 (Compare Giles v. Dugro, 1 Duer 331); Bertram v. Curtis, 31 Iowa 46; Weld v. Nichols, 17 Pick. (Mass.) 538.

A Party Wall a Dead or Solid Wall.Windows.--Without an agreement between the owners of property allowing them, windows have no proper place in a party wall. This is evident from the uses and objects of party walls, with which use windows are inconsistent. St. John v. Sweeney, 59 How. Pr. (N. Y.) 175; Van Syckel v. Tryon, 6 Phila. (Pa.) 401; Rondet v. Bedell, i Phila. (Pa.) 366; Milne's App. 81 Pa. St. 54; Vollmer's App. 61 Pa. St. 118; Sullivan v. Grafford, 35 Iowa 531; Danenhauer v. Devine, 61 Tex. 480; Graves v. Smith, (Ala.) 6 So. Rep. 308; Weston v. Arnold, L. R. 8 Ch. App. 1084 s. c., 7 Eng. Rep. 572. Compare Pierce v. Lemon, 2 Houst. (Del.) 519. See Hart v. Kucher, 5 Serg. & R. (Pa.) 1.

Flues in Wall.-Where one owner of a party wall desired to close a flue in said wall which was necessary to the beneficial use of the other party, Held, that as the easement was apparent at the time the party seeking to close the flue obtained her interest in the wall, she could not interfere with the use of the flue by the other party. Ingalls . Plamondon, 75 Ill. 118.

2. List v. Hornbrook, 2 W. Va. 340; Quinn v. Morse, 130 Mass. 317.

Party Wall Erected by Tenants.-When a party wall was erected by tenants for years, Held, that though the wall might be a party wall as between the tenants and adjoining owner, it would not bind the reversioner nor his grantee. Webster v. Stevens, 5 Duer (N. Y.) 553

The owners of adjoining lots, especially in large cities, frequently enter into an agreement, which may or may not be under seal, whereby it is agreed that in the erection of a building either party may place the wall of his building so that it will stand partly on each lot, and that the other party will, when he uses the wall, contribute, proportionately to the cost of erection. An agreement so made constitutes the wall, when erected and used by the adjoining owners, a party-wall.1

1. The interest of the licensee in this wall, after it has been built, cannot be annulled by any revocation on the part of either the licensor or his grantee with notice. Wickenham v. Orr, 9 Iowa (1 With.) 253.

"Plaintiff and defendant, owning adjoining lots, entered into a parol agreement to jointly build a party wall, and in pursuance thereof built a portion of the wall, when defendant refused to proceed further. Whereupon the plaintiff, who had prepared materials and planned a building in reliance upon the performance of the agreement, proceeded to complete the wall after due notice to the defendant. Held, that the parol contract having been partly executed, the parties were estopped from denying the existence of the easement thereby created. Rindge v. Baker, 57 N. Y. 209, s. c. 15 Am. Reps. 475.

B. and M. agreed orally that B. who was about to erect a house should put the division wall one-half on the lot of each. The line was not defined but B. began to build on a supposed line. Subsequently a written agreement was entered into by the parties, embodying the terms of the oral agreement. When M. came to build it was found that the foundation was four inches too far over on his land. M. cut off the four inches causing injury to B. Held, that M. was liable for the damage because he had allowed B. to go on in good faith. Miller v. Brown, 33 Ohio

St. 547.

Constructions of Party Wall Agreements. If one agreed to build a party wall, resting half upon his own land and half upon the land of an adjoining land owner, furnishing the material and labor therefor, and such adjoining land owner agreed that, upon its completion, he would pay one-half of the cost thereof, and should own a joint interest therein, and have the right to use it whenever he desired to build upon his own land; and as the land of the adjoining owner did not extend as

far north as the wall, it was agreed that the party erecting it should convey to him the small strip of land lying northward of where his land terminated, such contract was absolute and not conditional; the covenants therein were independent, and the breach of one did not relieve from the obligation of another. Therefore, a conveyance by the party building the wall was not a condition precedent to the enforcement of his claim against the adjoining owner for his proportion of the cost thereof. Ensign v. Sharp, 72 Ga. 708.

Where plaintiff purchased a lot of defendant, and agreed to erect a building thereon, and it was further agreed between them that when the defendant erected a building upon the adjoining lot he would construct, in connection with the plaintiff's building, a stairway to the second story, one-half of which should be on the ground of each party, and plaintiff, accordingly, built his wall 20 inches from the line, and defendant not only used the wall so built for the purpose of the stairway, but built into it in such a way as to support his own building, and in a way not demanded for the support of the stairway, then the wall became a party wall, and plaintift was entitled to recover one-half the value thereof at the time defendant so used it, with interest at six per cent. Molony v. Dixon, 65 Iowa, 136 s. c., 54 Am. Rep. I.

When Liability Accrues.-The plaintiff's lot was vacant. The defendant's lot was occupied by a building one story high, which was of brick on all sides except the one next the plaintiff's lot. On that side it was of wood, and rested by permission, on the plaintiff's land. The plaintiff's purpose was to erect a building on his own land which should be four stories high. In doing this, it would be necessary to remove the wooden side of the defendant's building, so as to make room for the partition wall located one-half on each lot. The parties thereupon agreed that either

might build the wall, and that the other might at any time use as much of it as might choose "for the erection of any building" paying to the party erecting the wall the appraised value of so much of it as he shall then use. The plain interpretation of the contract is that the defendant incurs no liability to pay for the value of the wall until he makes some use of it in the future erection of some building, or of some addition to the old one. cock, 19 Mass. 254.

Shaw v. Hitch

Adjoining owners agreed that one should build a foundation partly on the land of each and that the other should pay for the portion on his premises when he should rebuild his house or sell. Held, that the executors of the party who built had no cause of action against the other party until rebuilt or sold and that the addition of a few feet to the front extending to the pavement was not "rebuilding." Elliston v. Morrison, 3 Tenn. Ch. 280.

The law will imply that payment is to be made within a reasonable time where no time is fixed for payment in an agreement to contribute toward the erection of a party wall. Rawson v. Bell, 46 Ga. 19.

Where it was agreed that "whenever B. or his assigns use said wall by erecting a building on the lot adjoining on the said A.'s. B. or his heirs or assigns putting the joists of their building in said wall, then said A. or his heirs or assigns is to receive one-half of the actual cost of the building of said wall from B. or his heirs or assigns." Held, that the use of the wall was the thing contracted for and that the wall having been used as a party wall it was immaterial that the joists of the building were not inserted in the wall. Greenwald v. Kappes, 31 Ind. 216.

Under an agreement that one party should pay for a party wall when used, the amount to be determined by appraisers, Held, that the plaintiff could not recover until such appraisment or the defendant had done something to prevent and that the demand for payment did not entitle the plaintiff to interest though defendant was using the wall. Thorndyke v. Wells Memorial Assoc. (Mass.) 16 N. E. Rep. 747.

It was agreed between owners of adjoining lots that T. should pay for onehalf of a party wall when he should "make use" of it. When T. built, the building inspectors required him to line up to the party wall thus obliging him to

build a new wall. The party wall, however, supported and added strength to T's wall. Held, that T. was liable under the agreement since he did "make use" of it. Kingsland v. Tucker, 44 Hun (N. Y.) 91.

A simple contract between adjoining owners recited that one of them had erected a wall on the line intended as a partition wall, and stipulated that whenever the other, his grantees, heirs or assigns, or other persons owning or controlling his lot, should desire to build in connection with said wall, they should first pay the builder one-half of its value. Held, that the builder had no title to the half of the wall on the other lot, the contract being a mere license, with an agreement to pay for use, and therefore he, and not his grantee, was entitled to the payment of half the value, when the owners of the adjoining lot desired to build. Behrens v. Hoxie, 26 Ill. App. 417.

Under an agreement between the owners of adjoining lots providing that one may build a party-wall resting onehalf on each lot, and that the other should have the right of joining thereto on paying one-half its value, the one by whom the wall is built may be enjoined from placing therein doors or other openings, though there is neither allegation nor proof that the other ever intends to use the wall. Harber v. Evans (Mo.) 14 S. W. 750.

In an action in the New York city court, where adjoining owners agreed that one might build the wall and that the other might have the use of it on paying one-half its value, it was held that the mutual covenants furnished a sufficient consideration for the promise to pay, though the interest of the promisor in the land was small. Scott v. McMillan, 4 N. Y. Supp. 434.

In Kingsland v. Tucker, 115 N. Y. 574, it was adjudged that the construction of an independent wall, which touched a party-wall at several points, but which was of sufficient strength to stand alone and fulfilled all the requirements of a wall, was not such a use of a party-wall as was contemplated by an agreement between adjoining owners that one should use the party-wall built by the other for the support of the beams of a house then standing on the lot, but whenever he should make use of the wall in the erection of a new building he should pay for one-half of its value.

Enforcement.-Where there is an

(b) IMPLIED GRANT.-When one owning adjoining lots erects a wall partly on each lot and then conveys to others, the wall so erected becomes party-wall by implication of law and the dif ferent owners have mutual easements of support in that portion of the wall standing on the other's land. 1

agreement between the owners of adjoining lots, and one of them covenants with the other that he will build a wall, for a certain distance, half on one lot, and half on the other, and upon his failure so to do, the other party enters on the ground, and begins to extend the wall to the point agreed, the latter will not be restrained by injunction.

But where the distance to which the wall is to be extended is a disputed point, and the proper construction of the covenant is an open question, and the extension will render necessary the cutting away of part of the building, thus causing a permanent injury thereto, a temporary injunction will be issued, to continue in force until the question of right can be settled. Rector etc. v. Keech, 5 Bosw. (N. Y.) 691.

1. If a person erects two buildings on adjoining lots of his own, with a party wall between them, and subsequently conveys to different persons, each has an easement in the party wall standing on the land of the other for the support of his house. The party disturbing the other in the enjoyment of that easement, even though he do it for the purpose of improving his own lot, and with the greatest diligence, is responsible for damages occasioned to the other by such disturbance. And if he employ another person in the work, both employer and employed are liable for the trespass. The building injured being in possession of a tenant for a term of years, it was held, that the owner could recover only the injury to the building, and nothing for interruption of use and occupation. Eno v. Del Vecchio, 6 Duer (N. Y.) 17. Partridge v. Gilbert, 15 N. Y. 601, s. c., 69 Am. Dec. 632; Webster v. Stevens, 5 Duer (N. Y.) 553; Rogers v. Sinsheimer, 50 N. Y. 646; Henry v. Koch, 80 Ky. 391; 8. c., 44 Am. Rep. 484; Doyle v. Ritter, 6 Phila. (Pa.) 577; Goldsmith v. Starring, 5 Mackey (D. C.) 582; Richards 7. Rose, 9 Exch. 218; Murly v. McDermott, 8 Ad. & E. 138; Watson v. Gray, L. R. 14 Ch. Div. 192.

"Two houses and two lots were originally owned by one Stranahan. He had erected the two houses thereon, and

made the wall in question a party wall between them. By two deeds, both dated and recorded at the same time, he conveyed the easterly lot to the grantor of the plaintiff and the westerly lot to the grantor of the defendant, by a description which is claimed by the plaintiff to have so located the line of division as to throw the whole of the wall and two inches of land on the westerly side thereof within the boundaries of the plaintiff's lot. Assuming that the plaintiff is right in his construction of the description, yet the wall being a party wall and at the time of the conveyance serving as a support for the beams of the house erected on the lot now of the defendant, the premises now owned by the plaintiff were charged with the servitude of having the beams of that house supported by the wall in question, and of having the wall stand and serve as an exterior wall for the defendant's house, so long at least as the building should endure. Consequently, on the severance of the two properties, the grantee of the westerly lot acquired an easement corresponding with the servitude to which the easterly lot was subject." Rogers v. Sinsheimer, 50 N. Y. 646.

Where the use of a wall was not such as would give a subsequent grantee notice of its use as a party-wall and it is shown that he did not have notice of any right to use. Held, that when an adjoining owner erected a brick building in the place of a frame shop of a light and temporary character he could not use the division wall as a party wall without making compensation. Heimbach's Appeal (Pa.) 7 Atl. Rep. 737.

Where the owner of adjoining lots, on each of which was a building with a common wall between them, mort gaged one of the lots, describing the division line as running "partly through the centre of a party-wall," it was held that on the foreclosure and sale of the mortgaged lot the common wall became a party-wall. Heartt v. Kruger, 56 Super. Ct. 382.

The owner of two adjoining city lots built a house upon each lot, each separated from the other by a brick wall,

(c) PRESCRIPTION.-The continuous use of a wall, by adjoining owners, as a party-wall for the prescriptive period, raises the presumption of a contract between the parties.I

(d) STATUTES.-In some of the states of the Union there are statutory regulations upon the subject of party-walls.2

one-half of which was on each lot, and subsequently conveyed the lots to different persons, each deed describing the boundary line between the houses as "a line running longitudinally through the centre of the partition wall between the houses"; and such wall stood unchanged as the partition wall between the houses for fifty years. Held, that the wall was a party-wall. Everett v. Edwards, 149 Mass. 588.

And so where A. and B. owned adjacent houses, and the wall was a common wall, and the common grantor of both had conveyed each house by a description which made the dividing line of the lots pass through the centre of the wall, though there was no reference to the wall, it was held that there was an implied grant of the party wall, putting on each the burden and privilege of a party wall. Carlton v. Blake, (Mass.) 25 N. E. Rep. 83.

1. An old wall from long user, in the absence of evidence, may be deemed a party-wall, presumptively, either from an agreement to that effect, or from its being built upon the line of the two lots for that purpose by the respective owners. Schile v. Brokhahns, 80 N. Y. 614; Eno v. Del Vecchio, 4 Duer (N. Y.) 53.

A and B owned adjoining houses, the party wall of which was supported by an arch, enclosing a passage-way; B pulled down his house and part of the arch on his estate, in consequesce of which the partition wall fell. In an action of trespass on the case by A against B, there was evidence that A had previously made alterations in his house, and had inserted props under the arch after B's house had been taken down, but that the party wall was not weakened thereby, and it did not appear that A ever assented to the breaking of the arch. Held, that the right of support or easement in the ground of B set up by A, was of such a character that it must have originated in a grant, either actual or presumed, as matter of law, from the facts shown by the evidence in the case.

Held, also, that the uninterrupted enjoyment and use of the alley and alley

walls for the period shown by the evidence, raised the presumption of mutual grants' for such enjoyment for the time the two houses should be capable of safe and beneficial occupation, and that B had no authority or right to interfere with the alley or walls, without the consent of A, unless he could do so without injury to his possession. Dawling v. Hennings, 20 Md. 179; Brown v. Werner, 40 Md. 15; McLaughlin v. Cecconi, 141 Mass. 252, S. C. 5, N. E. Rep. 261: Orman v. Day, 5 Fla. 385, Sanders v. Marton, 2 Lea (Tenn.) 213; S. C. 31 Am. Rep. 599; Cubitt v. Porter, 8 Barn & C. 257; Wiltshire v. Sidford, 8 Barn & C. 257; Brown v. Windsor, 1 Cromp. & J. 20.

2. In Iowa, South Carolina, Mississippi, Louisiana, and the District of Columbia, one who in a city or town erects a brick building (in Louisiana a stone building) may set half the partition wall on the adjoining lot.

In Iowa and Louisiana, one so erecting a wall cannot compel contribution. but if the adjoining owner uses the wall when he builds, he must pay for one-half of it; and this he must do in South Carolina and Mississippi.

So in Iowa and Louisiana, if the person first building places the wall wholly on his own land, the other who uses it must pay half the value of the strip, and, this being done, they own the wall in common. Under the statutes of these two states a partition wall is presumed to be a wall in common.

a

Under the Mississippi statute, party-wall paid for by both cannot be removed by either without the consent of the other. For a general reference to the statutes bearing upon this subject see Stimson's American Statute Law, p. 325. O'Daniel v. Bakers' Union, 4 Houst. (Del.) 488; Zugenbuhler v. Gilliam, 3 Iowa 391; Thomson v. Curtis, 28 Iowa 229; Bertram v. Curtis, 31 Iowa 46; Molony v. Dixon, 65 Iowa 136, S. C. 54 Am. Rep. 1; Graihle v. Honn, 1 La. Ann. 140; Florence v. Maillot, 22 La. Ann. 114; Irwin v. Peterson, 25 La. Ann. 300; Irwin v. Morse, 130 Mass. 317; Ingles v. Bringhurst, I Dall. (Tex.) 341; Beaver v. Nutter, 10

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