41 P. 462 | Cal. | 1895
The plaintiff is a corporation engaged in the business of banking. In 1887 it acquired the title to, and erected a two-story brick building on, a lot in the town of Escondido, county of San Diego. The defendants owned the two adjoining lots on the west, and shortly after the completion of the bank building they commenced the erection of a two-story brick building thereon, and completed the same early in 1888. To lay the foundation for the west wall of its building, the plaintiff excavated a trench three feet deep and three feet wide, which extended over its line, and upon defendants’ land, eleven and one-half inches. In this trench the foundation was laid, covering the whole space at the bottom, but narrowing toward the surface of the ground. The wall erected on this foundation was thirteen inches thick, and it projected over the plaintiff’s line to the extent of one-half inch at the ground, one and one-half inches at the second floor joists, and two and one-half inches at the top joists. When defendants were erecting their building, they claimed the right to use the plaintiff’s wall as a party-wall, and they inserted therein the joists for each of the three, floors of the building, and also plastered the wall without lathing. They also, with plaintiff’s consent, cut a doorway through the wall, on the second floor, so that free passage might be had between
1. In support of the appeal, it is claimed that the finding to the effect that plaintiff’s wall extends over the dividing line of the lots to the extent of from one-half an inch to two and one-half inches is not within the issues raised by the pleadings. We see nothing in this point. The answer sets up the facts in regard to the construction of the two buildings, and alleges “that the said wall of the plaintiff’s building has, ever since the construction thereof, about the first day of July, 1887, as aforesaid, rested, and does yet rest, in part, on the said land of the defendants, and that the said wall is a party-wall, and ever since about the first day of March, 1888, has been used as a party-wall” by the defendants and the plaintiff. This was quite sufficient to raise the issue passed upon.
2. It is unnecessary to consider at length all the points made in the case, and discussed by counsel. It was shown that during all the time of the construction of the defendants’ building the plaintiff was occupying its banking-house, immediately adjacent, and its officers, without raising any objection, daily saw and knew what was being done by defendants. In January, 1888, at a meeting of its board of directors, the subject of the use of the wall by defendants was considered. What was then said and done is thus epitomized in the testimony of Mr. Watson, one of the directors: “Mr. Thomas stated that they were going, or had commenced, to put up a building. He stated it was to be of the general finish of the bank, and wanted to join on our wall. I think either Mr. Graham or myself made a motion that we allow them to do that; that we considered the building would enhance the value and appearance of the bank sufficiently to •reimburse the bank for the use of the wall. My impression is there was unanimous consent. I think this was while the board was in session. I am not positive there was any motion, but it was the tenor of the conversation, and I understood it
3. There is another ground on which the judgment should be affirmed. It was held in Guttenberger v. Woods, 51 Cal. 523, that he who seeks equity must do equity; and therefore, so long as the plaintiff’s wall, laid on his own land, projects over the defendants’ land, the court will not compel the defendants to desist from using it as a party-wall. The rule declared in that case is applicable here, and should be followed. The judgment and order appealed from should be affirmed.
We concur: Searls, C.; Vanclief, C.
For the reasons given in the foregoing opinion, the'judgment and order appealed from are affirmed.