27 Ind. App. 293 | Ind. Ct. App. | 1901
The appellee was the plaintiff, the action being one for the recovery of damages for injuries to his two-story brick building by disturbance of the foundation of a wall, which it was claimed on his behalf was a party wall. The controlling question presented in argument, arising in various portions of the record, is whether or not the wall should be regarded as a party wall and the appellants therefore liable for the consequences of their removal of its support without regard to the question whether or not they were chargeable with negligence in making an improvement upon their premises.
On the 26th of August, 1881, Charles J. Marsh was the owner in fee simple of certain real estate in the city of Portland, Jay county, adjoining the west side of a street on which it fronted, and extending westward from the street one hundred and thirty-two feet, being forty feet in width. There was then situated upon this ground the two-story brick building for the injury of which the action was brought. It fronted upon the street and extended back from the street eighty feet, its north wall extending to and along
The appellants at the time of the conveyance to them were the owners of the real estate immediately adjoining the ground so conveyed, on the south thereof, on which adjoining ground they had a brick business building fronting on the street already mentioned and extending westward 110
The appellants thus were granted a parcel of ground which was twenty feet in width, and which therefore extended to the center line of the wall which supported the building of their grantor standing upon ground still owned and retained by him, and as to one-half of its southern wall extending six and one-half inches upon the land conveyed to appellants, by the terms of the deed of conveyance, which expressly referred to this wall as being included in the conveyance, and made provision- for future extension of the wall westward by the appellants upon the line between the parcel conveyed and the parcel retained by the grantor, one-half on each side of the line, and for the right of the grantor or his heirs or assigns to use the extension and the right of the appellants to payment for one-half the expense thereof.
Inasmuch as the conveyance to the appellants was in 1881, and they commenced to use the wall in question as a support for their building in the fall of the same year, and the injury complained of was suffered in the spring of the year 1898, it is pointed out on behalf of the appellants that a sufficient period had not elapsed to- acquire an easement of support of the appellee’s building by prescription; and the contrary is not asserted oh behalf of the appellee.
Our statutes do not contain any provisions relating specially to party walls. If the appellee’s claim of an easement can be sustained, it must be based upon contract. In the deed of conveyance to the appellants the wall in question was not denominated a party wall, nor was there an express reservation of a right in the grantor or his heirs or assigns to use the wall then existing, eighty feet in length, as a support for the building of which it formed a part, or an express reservation of an easement of support for the wall by the land conveyed. But it is claimed in effect on behalf of the
There has been confusion in the opinions of the courts upon this subject, at least in the obiter expressions of judges, in the subsequent treatment of which in some courts there has been perhaps a tendency to a contrary extreme. See Lampman v. Milks, 21 N. Y. 505 ; Wells v. Garbutt, 132 N. Y. 430, 30 N. E. 978; Sloat v. McDougal, 9 N. Y. Supp. 631.
In John Hancock Ins. Co. v. Patterson, 103 Ind. 582, 53 Am. Rep. 550, a house situated upon a lot conveyed projected over upon a strip of ground owned and retained by the grantor. It was held that so far as the house so projected over and rested on the strip of ground, the'grant of an easement to continue such use would be implied. In the course of the opinion of the court it was said: “Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of the severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership, whether by voluntary alienation or by judicial proceedings, there arises by implication of law a grant or reservation of the right to continue such use. In such case, the law implies that with the grant of the one an easement is also granted or reserved, as the case may be, in the other, subjecting it to the burden of all such visible uses and incidents as are reasonably necessary to the enjoyment of the dominant heritage, in substantially the same condition in which it appeared and was used when the grant was made.” While in that case the easement was claimed in behalf of the grantee of the dominant estate, there is throughout the opinion a manifest disinclination to favor a rule that an easement by implication must in all cases be created by way of grant and never by way of reservation.
In Fidelity Lodge v. Bond, 147 Ind. 437, 442, the court approved as a doctrine obtaining in this jurisdiction in relation to party walls, the proposition that each adjoining proprietor is the owner in severalty of his part, both of the wall and of the land on which it stands, subject to a cross-easement of support and for other common needs in favor of the other proprietor. The wall is, therefore, it was said, to be used equally by both parties for all the purposes of an exterior wall.
This is in full accord with the opinion expressed in Hoffman v. Kuhn, 57 Miss. 746, 34 Am. Rep. 491, as follows: “The owners of adjoining buildings, connected by a party wall resting partly upon the soil of each, are neither joint owners nor tenants in common of the wall. Each is possessed in severalty of his own soil up to the dividing line, and of that portion of the wall which rests upon it; but the soil of each, with the wall belonging to him, is burdened with an easement or servitude in favor of the other, to> the end that it may afford a support to the wall and building of such other. Each, therefore, is bound to permit his portion of the wall to stand, and to do no act to impair or endanger the strength of his neighbor’s portion, so long as the object for which it was erected, to wit, the common support of the two buildings, can be subserved; and each will consequently be liable to the other for any damage sustained by a disregard of this obligation.” See Briggs v. Klosse, 5 Ind. App. 129, 51 Am. St. 238.
It is a true and salutary rale that a grantor may not derogate from his own grant, while a grantee may take the language of the deed most strongly in his favor. Therefore, we suppose it proper to say that the law will imply an
The intention of the parties may be sought hy those recognized methods which explain without contradicting the express contract. The situation of the subject-matter of the contract and the circumstances óf the transaction may be considered, and the construction placed upon the contract by the parties thereto in their conduct while proceeding under it not in antagonism to its terms, may illustrate the mutual purpose of the contracting parties.
Doubtless, each case of claim of an implied reservation of an easement in favor of the dominant estate retained hy the grantor of the servient estate must rest upon its own facts. In the case before us the quasi easement of support existing before the severance of the estates was apparent and continuous in its nature, and was known to the parties. The deed of conveyance by its terms indicated characteristics of a party wall. The wall was a permanent structure and already supported the building of the grantor, and the deed indicated the right of the grantees to make like use of it and the extension thereof which they were authorized to make, partly upon the land of the grantor. The easement was strictly necessary to the manifestly contemplated use and enjoyment of the grantor’s retained estate. The parties proceeded at once, and they and the assigns of the grantor continued, to make use of the wall reciprocally as a party wall, and by all their conduct in the premises, considered in connection with the terms of the deed, indicated that the intention of the parties to the contract was to grant to the appellants and to reserve to their grantor and his assigns the easement of a party wall.
A correct result appears to have been reached, and we have not found any available error in the record. Judgment affirmed.