251 Pa. 378 | Pa. | 1916
Opinion by
In this case, a hill was filed to restrain the defendants from “breaking into, tearing down or in any manner interfering with, injuring or destroying, the east wall of plaintiff’s building;” a decree was entered to that effect, and the defendants have appealed.
After a careful study of the evidence and adjudication, we are not convinced of error in any of the underlying findings of the chancellor or in his deductions therefrom; hence the matter necessary to a proper understanding of the controlling facts in the case can be stated without the necessity of detailing or discussing all the findings and conclusions of the court below.
The predecessors in title of the plaintiff and of the defendant Grace Phillips Johnson acquired adjoining lots from a common source, the former in 1853 and the latter in 1857. Shortly after the last date, a building was erected on each lot, the plaintiff’s building being from 80 to 90 feet in depth, and the defendant’s about 68 feet. The wall between the two structures was used jointly by. the original owners, and the defendant Johnson and her predecessors in title continued its use to the time of suit, for the support of joists and other ways in which a partition wall between two buildings is ordinarily used. The wall, however, was built on the plaintiff’s land, no part thereof being on the defendant’s lot. Some time prior to 1877, a predecessor in title to the plaintiff erected another building on the rear of his lot, the east wall of which was of the same thickness, 13 inches, and on a line with the division wall originally constructed between the plaintiff’s and defendant’s properties. Subsequently the last mentioned wall was extended along the same line and attached to the original division wall. In 1890 a predecessor in title to the defendant Johnson extended the building on her lot about 24 feet to the rear, and used the division wall as a support for joists, etc. In 1894, the plaintiff company added to the height
The defendants’ main contention is that, when the predecessors in title of the plaintiff and of the defendant Johnson constructed the buildings on their respective lots, with a common division or partition wall between them supporting the “joists, rafters, floors and timbers of the two buildings,” whatever the previous line may have been, they thereby made the middle thread of such wall the dividing line between the two lots for all future time, and the subsequent extensions of the wall by the' plaintiff, or its predecessors in title, along the same line,
In that part of the adjudication which deals with conclusions of law, the chancellor states: “The evidence showing that the division Avail between the Brown and Hamilton property (plaintiff’s) and the property of Grace Phillips Johnson (defendant) was built entirely upon plaintiff’s land, the extent of the right to the use of said wall by defendants must be determined and measured by the use heretofore made of the wall, and limited to the extent to Avhich the said wall has been used. The defendants have no right to place any further burden on the said wall, but may continue to use the same to the extent to which it has been used for the buildings already existing on the ground......The said division wall having been erected entirely upon the property of plaintiff, there is no presumption that such wall is a party wall, and the defendants having shown no right, either statutory, prescriptive, or by agreement to break into that portion of the wall complained of, such acts constitute a trespass......There being no record evidence, or otherwise, of the rights under which defendant’s predecessors in title made use of said wall, by attaching thereto, the presumption is that it was by oral permission — a mere license — and that by continued use ......said license has ripened into an easement by prescription, which rights must be restricted to the build
Medara v. DuBois, 187 Pa. 431, cited by counsel for appellants, is a case in which an owner of land built twin houses thereon, “designed to be occupied as separate dwellings;” the houses were subsequently sold to different purchasers, the description in the respective deeds of conveyance each being for a lot with the méssuage thereon, but in courses and distances not precisely following the party wall line. The court concluded that, the party wall having been built at a time when both of the.houses, and the lots upon which they stood, were owned by one man, it must be presumed that he intended the wall as a monument to mark the division line between the two lots; this principle also controlled in Warfel v. Knott, 128 Pa. 528. The other authorities relied upon by the defendants are all so readily distin
Tbe assignments of error are overruled, and tbe decree of tbe court below is affirmed at tbe cost of appellants.