Burton v. Moffitt

| Multnomah Cty. Cir. Ct., O.R. | Jun 15, 1868

The following opinion was filed in the case, by

Upton, J.;

This is an application for a preliminary injunction, but I presume nearly all the facts are presented that will be adduced on the trial; and in the argument, attention has been given to the subject of the ultimate rights of the parties as well as to the propriety of granting or refusing the present motion. The defendants claim that their iron pilaster, which is ton inches wide, with a base and capital twelve inches wide, is a part of the wall contracted for.

I think this cannot be maintained. If it is part of the wall, they were bound to build it of certain thickness; this part of the wall was to be sixteen inches thick. By departing from the specified thickness of the wrall, they show that they did not consider the iron pilaster a part of the “wall” called for by the terms of the contract. The wall is spoken of as “tioo brides thick.” If they had a right to build the wall of iron, they had a right to charge half the cost of the iron to the plaintiff; and if of iron, they could build it of still more costly material, and charge the plaintiff with half the cost of a similar wall, at a future time.

The iron front must be considered distinct from the wall contracted for, both because it is a reasonable construction of the terms of the contract when axamined in connection with the circumstances under which the contract was made, and because both parties have so treated it.

By the terms of the contract the' wall was to be built for the use of each party. The plaintiff was to have the “privilege of owning and using one half” of the partition wall. Half of it stands upon the land of each, .and half of it will be the separate property of each, subject only to the right in the other to a reasonable use of the whole.

“The owners of a party wall built at joint' expense, are not tenants in common, but each owns his own land, with a right to use the wall, which he may enforce by action.” (Matts v. Hawkins, 5 Taun. 20; Cubitt v. Porter, 8 Barn. & Cr. 257.)

So the plaintiff and defendants in this casp will each have a right to the use of their respective lots, and to the sole use, saving only, and subject only, in each case to the right the other will have to the use of the party wall; hence it will be important to consider what rights one of them will have to or in this wall, aside from the right he has to the half of it by virtue of owning the ground on which that half stands. Each part of the wall gives strength and support to the other part; the owner has a right to that support. He has a qualified right in the whole wall, but still he must so use it as not to interfere with the right of his neighbor to a similar use of it.

_ It is by the contract evidently in contemplation that each of the parties will construct a building; probably buildings in many respects similar. In each case symmetry and beauty of front will be an element going to make up the value and availability of the proposed building. There is nothing in the nature of the right which' one of these parties acquires in the property of the other, that \v‘ill justify extending his pilaster or cornice beyond the original boundary line. Such a proceeding is a violation of the rule, that he must so use his own as not to injure others; and it even goes beyond that by an actual encroachment upon the premises of another.

“Each is owner in severalty of the portion of wall situated on bis own land, with no qualification except that neither has a right to pull it down-without the other’s consent.” (Sherred v. Cisco, 4 Sandf. Sup. C. 480.)

I cannot now see any grounds that pistify the defendants in projecting their iron front upon the premises of the plaintiff. Nor can I say that any remedy but its removal will be adequate under the facts as they are presented on this motion.

But it is not shown that the plaintiff is now engaged in building, or that he intends to build on his lot, at so early a day as to make the removal of this obstacle necessary before the final hearing in this suit. It is shown by the evidence of experts that the removal would be attended by nearly or quite the same expense at the present time that it will be if required after the completion of the building; and the completion of the building will not tend -to rentier the decree ineffectual so far as relates to the iron front.

I think, therefore, in regard to this branch of the case, it will be a proper exercise of the discretion of the court to refrain from making an order until after final hearing.

As to the location of the wall of the second story, it is not shown that the plaintiff will be irreparably injured; but, on the contrary, the plaintiff admitted, when on the stand as a witness, that the injury, which is a mere diminution of the width of his premises above the second floor, might be fully compensated by a sufficient payment of money.

I am not inclined to place the refusal of this motion on the ground asserted in argument; that literally the wall, treated as a whole, extends equally on the lands of each party. The spirit and intent of the contract does not seem to me to be complied with in this respect; a fair construetion is, that no more of the plaintiff’s premises should be encumbered than of the defendant’s. But I think the circumstances, that it was- uncertain how long the wall would stand before the plaintiff would build and protect it by a roof, and that the contract leaves that matter to the party’s option for an indefinite period, may well be considered in determining whether the defendants shall now be restrained, and compelled to rebuild that part tbat is already constructed above tbe second floor.

Under tbe circumstances of-tbe case I shall decline making • an injunction order before tbe final bearing. And tbe present motion will be denied. >