96 Me. 335 | Me. | 1902
This is an action- on the case to recover damages for the destruction of an easement, claimed by the plaintiffs in a stairway and hallway of the defendant’s building; and also for the
In 1884-, P. C. Perkins was the owner of two adjoining lots of land situated on the southerly side of Broadway in the village of Farmington. The easterly lot, now owned by the plaintiffs, is 22-|-feet in width on the street,, and the westerly lot, now owned by the defendant, is 40 feet in width. There were buildings standing on the easterly lot, but none on the westerly lot. March 81st, 1884, Perkins conveyed the easterly lot to C. W. Keyes and A. T. Tuck, by separate deeds, conveying to each an undivided halfj making the center of the westerly wall of the Arcade or post-office, then standing thereon, the dividing line between this lot and the vacant lot on the west side owned by Perkins as above stated. Idle deeds to Keyes and Tuck contained the following clause : “ Haid Keyes [Tuck] to have forever the right to the free and unobstructed use of the stairway leading to the second story of the proposed building to be built by said Perkins adjoining the post-office building now so-called, and-the hall in the second story of the proposed block, the stairway to be not less than three feet in the clear and the hall not less than five feet in the clear, the center of the stairway to be not more than twenty feet from the west wall, of the said post-office building or block, and said hall to run east and west the entire width of the proposed building or block in which said stairway is to be located and a continuation of the hall now in the upper story of the post-office building, both stairway and hall to be well built and finished and thoroughly lighted by day by large and now modern windows over the door leading to the stairway and in the west end of the hall in the Perkins block, and the light from these windows never to be obstructed,” etc. The plaintiffs derive title from Keyes and Tuck, through several mesne conveyances, all of which purport to convey the rights and privileges described in the covenants found in the deeds to Keyes and Tuck as above stated.
It is not in controversy, that very soon thereafter Perkins erected a building upon his vacant lot as proposed in those deeds, and that the owners of the plaintiff block enjoyed the use of the stairway and hall therein, according to the stipulation in the deeds, until October 22,,
“The said Almas S. Butterfield and James H. Bonney do hereby covenant and agree to erect a partition wall of brick with a proper foundation under the same of stone, one-half of said wall to set on the lot of said Butterfield & Bonney on Broadway in Farmington village corporation occupied by C. "W. Keyes as the Chronicle office at the time of the fire which destroyed the same October 22d, 1886, and the other half on the lot of said Perkins which was occupied by E. G. Blake as a jewelry store at the time of said fire.
“Said wall is to be erected at the expense of the said Butterfield & Bonney, and whenever said Perkins shall erect a building on his lot aforesaid he shall have the right to use said wall as the east Avail of his building which he shall erect, and shall become the owner of the west half of said wall by paying to the said Butterfield & Bonney one-half the costs, at the time said wall is used by said Perkins, of a similar brick wall similarly made and constructed as the brick wall herein described.
“And it is further agreed that neither party hereto or any person shall project timbers or finish into said wall more than four inches in depth.
“And the said Frederick C. Perkins hereby agrees to allow and hereby gives permission for the erection of said wall on his said lot as above described, and hereby further agrees that whenever he shall erect a building on his said lot he Avill pay to the said Almas S. Butterfield and James H. Bonney one-half the costs at the time said Avail is first used by said Perkins of a similar brick wall similarly made and constructed as the brick wall herein described and shall thereby become the owner of' the west half of said wall.
“And it is hereby agreed by the parties hereto that neither party hereto shall remove or destroy said wall or allow it to be removed or*341 desti’oyed except by the act of God, without the consent and permission of the other party hereto.”
This agreemexxt was recorded in the registry of deeds March 9, 1888.
In pursuance of this agreement another building with a new partition wall was erected by Butterfield & Bonney, the owners of the plaintiff block, and subsequently, in the year 1897, Butterfield conveyed his undivided-half interest in the lot, building and wall to the plaiixtiff Metcalf. In 1898 the devisees of Perkins coxxveyed the adjoining lot in questioxx to the defendaixt who erected the present bxxilding thereon in 1899, axxd paid to the plaintiffs one-half of the cost of the new partition wall, according to the agreement.
The plaintiffs now coxxtend that they have the same rights of passage through the stairway aixd hall of the new building that the owners of the plaiixtiff block had iix the original building on the Perkiixs lot which was destroyed by fire.
The defendaixt contends that by the destructioix of both buildings all easements in the Perkins buildiixg were extinguished, or if not extinguished, that they have beeix lost by voluntary abandonment and acts incompatible with their continued existence.
An easemeixt may be coixcisely defined as “a privilege without profit which one has for the benefit of his land in the land of another.” Washburn oix Easements, 2; Jones on Easements, 1. It is anxong the essential qualities of every easement that there are two distixxct tenements or estates, the dominant to which the right belongs, and the servient upon which the obligation is imposed. 10 Am. and Eng. Enc. of Law, 401. Hence an easement, properly so-called, or right appurtenant to one tenement to the enjoyment of some privilege in neighboring land, may survive the destructioix of a part of the servient estate when there is anything remaining upon whicli the dominant estate may operate. But the right to the use and enjoyment of a pi’ivilege in a particular building of another, which does not involve any interest in the soil apart from the building, is extinguished by the destruction of the building, for the obvious reasoix that nothing renxains upoxx which it can operate. Jones on Easements, 838, 839. In Shirley v. Crabb, 138 Ind. 200 (46 Am.
It is further provided in the Perkins deeds of the plaintiff lot that “the west wall of the post-office block or building shall forever remain as a partition wall between said post-office building and any building that said Perkins or his heirs or assigns may join thereto.” But it is Equally well settled, in the absence of any agreement to the contrary, that the destruction of a party-wall destroys an easement therein created by'building the wall along the dividing line of two lots and conveying one or both of the buildings by deeds in which the line is described as running through the center of the party-wall. Pierce v. Dyer, 109, Mass. 374, 12 Am. Rep. 716; Heartt v. Kruger, 121 N. Y. 386, 18 Am. St. Rep. 829, 9 L. R. A. 135; Jones on Easements, 840, and cases cited. The progressive development of social and industrial life m our cities and villages is constantly demanding buildings and structures of different size and character from those required in the generation gone before; and a division wall adapted to necessities of one proprietor1, may soon become inapplicable to the purposes and needs of the other.
It appears from the evidence that in 1884, at the date of the Perkins deeds of the plaintiff lot, the entrance to the second story of the Arcade or post-office building, was then up a flight of stairs in the west side of the building over the vacant lot, then owned by Perkins, and now owned by the defendant. But this stairway was removed in order to make way for the original building soon after erected on this lot by Perkins. In accordance with the agreements in Perkins’ deeds to Keyes and Tuck in 1884, this building covered the entire width of the vacant lot; the existing west wall of the post-office block on the plaintiff1 lot became the east wall of tlie Perkins building and the partition wall between the two; and in pursuance of the further stipulation in the deeds, provision was made for access to the upper story of the post-office building by means of the stairway in the middle of the Perkins building and the hallway therein leading through the partition wall.
It also appears that in May 1887, following the fire in October 1886, the'respective owners of these adjoining lots entered into a contract of the tenor above given for the construction of a “partition wall of brick” between the buildings to be erected thereon. In making this contract the parties must be presumed to have employed the words “partition wall of brick” with the meaning which they have acquired by usage; and “by usage the words ‘party-wall’ and ‘partition wall’ have come to mean a solid wall. Various reasons of inconvenience or peril have been assigned for the doctrine, but they are all referable, we think, to the general doctrine that the easement is only a limited one, and is not to be extended so as to include rights and privileges not belonging to the character of a wall which is to be owned in common, and in which the right of each owner are equal.” Normille v. Gill, 159 Mass. 427, 38 Am. St. Rep. 441, and cases cited. In Volmer’s Appeal, 61 Pa. St. 118, the court said: “From this review of the doctrines applicable to party-walls, it is clear that it must be a solid wall, without openings, of brick or stone or other
In the pax'ty-wall agx’eexxxent of 1887, the parties “bixxd themselves
But, the plaintiffs finally insist that if the plaintiffs’ easement in the defendant’s building was extinguished or abandoned, they
Again, after the destruction of both buildings by fire and the execution of the mutual agreement for a new party-wall above considered, the defendant, as already shown on the former branch of the case, was. permitted to erect his building over and across the same strip of land without question, upon paying one-lialf of the cost of such a party-wall; and both parties constructed their buildings so that all parts of each could be occupied without regard to the other. Here, again, the inference is irresistible that in consideration of having one-lialf of the thickness of the party-wall on the defendant’s lot, and of the payment by the defendant of his proportional part of the cost of building it, the owners of the plaintiff lot intentionally relinquished all rights and privileges previously enjoyed in the defendant’s lot as well as in the building thereon. The acts of the dominant owners relating to this claim are also wholly inconsistent with the continued existence of any such easement.
Judgment for defendant.