Bloch v. Isham

28 Ind. 37 | Ind. | 1867

Gregory J.

— The case made by the complaint is this: Schenclc and Isham, being the owners of adjoining lots in Valparaiso, entered into a written agreement, whereby Schenclc acquired the right to build one of the walls of a brick store, then in process of erection on his own lot, with one-half of its thickness resting on the lot of Isham; and Isham acquired for himself, his heirs or assigns, the right to use said wall by joining a building thereon, and agreed for himself and them to pay one-half of the original cost of said wall, when he or they should use the same. Schenck completed the brick store on his lot, with one-half of the width of one of its walls standing on Isham,’s lot. Afterwards, Schenck conveyed his lot and store to Bloch and others, and Bloch, subsequently, became the sole owner of the lot and its appurtenances ; and while he was such owner, Isham built a brick building on his own lot, and used the wall in question. A demurrer was sústained to the complaint.

The only question raised below and here is, whether Bloch has a right to recover of Isham the price to be 'paid by him for the use of the wall, or whether the right of action is in Schenck. The case tui’ns upon the solution of the question as to whether Isham’s agreement to pay for one-half of the party wall is a covenant running with the land.

There is some conflict in the authorities on this point. In Burlock v. Peck, 2 Duer 90, the superior court of New York held that such a covenant passed to the grantee of the premises on which the building of the cove-. nantee was erected. It is otherwise held in Pennsylvania. Ingles v. Bringhurst, 1 Dallas 341; Todd v. Stokes, 10 Barr 155; Gilbert v. Drew, id. 219; Hart et al. v. Kucher, 5 Serg. & Rawle 1.

It is claimed that the cases in Pennsylvania turn on a statute. That statute simply provides that “the first builder shall be reimbursed for one moiety of the charge of the party wall, or for so much as the next builder shall use, before he breaks into the wall.” There is nothing in this statute which is not embraced in the agreement of the parties in this case.

Brown v. Pentz, 1 N. Y. Legal Ob. 24, was never officially reported, and we do not recognize it as authority.

But we think that the ruling of the Supreme Court of Massachusetts, in Weld v. Nichols, 17 Pick. 538, is conclusive on this question. It was there held that the liability to pay for the party wall was a mere personal liability, and not repugnant to a covenant in a deed that the land was free from incumbrances.

T. J. Merrifield and W. H. Calkins, for appellant. H. A. Gillett, for appellees.

The easement which passed from Schenck to his grantees was the right to the support of the party wall afforded by that part thereof which rested upon the land of Isham.

Schenck and Isham were not tenants in common of the party wall, but each owned the part thereof on his side of the line. Schenck advanced the money to build Isham’s moiety, on the agreement of the latter that he, or his heirs, would repay it when he or they should have occasion to use the wall. This is clearly a mere personal covenant, in no wise connected with, or affecting the enjoyment of, the lot conveyed to Bloch.

The judgment is affirmed, with costs.