58 Neb. 29 | Neb. | 1899
The R. J. Gunning Company, plaintiff below, is a corporation organized under the laws of the state of Illinois, with its principal office at Chicago, and engaged in the business of display advertising, leasing walls in different cities for that purpose. The defendants below, Charles Shiverick & Co., are a partnership engaged in the furniture and carpet business in the city of Omaha, occupying as lessees the four-story building situate on the west one-third of lot 8, in block 103, in said city. On and prior to August 15,1882, one John McCreary was the oivnermf the said Avest one-third of lot 8, and the east two-thirds of said lot was OAvned by one Samuel E. Rogers. McCreary was about to erect a building on his portion of said lot, so on said date he and Rogers entered into a party-wall contract, whereby it was agreed that they should unite in building á party wall on the line dividing the said premises; one-half of the wall to stand upon the property of each and one-lialf of the costs of construction to be paid by each. The wall was erected during, said year and the cost thereof was paid according to contract, and McCreary at the same time erected a four-story brick building on his
The principal question presented for our consideration is raised by the giving of the first paragraph of the instructions, which was to the effect that the plaintiff had the right, under its lease, to paint and maintain the sign in question upon the east r x ace of said wall, and that the defendants are liable for the damages sustained by the obliteration of such sign. This instruction substantially directed a verdict for the plaintiff below, Avhicli, in our Anew, was entirely proper. There Avas no conflict in the evidence adduced, and but one inference could be drawn therefrom. The question Avas of laAv alone for the court, and therefore it Avas proper to direct a verdict for the party entitled thereto under the evidence, and the law. (Woolsey v. Chicago, B. & Q. R. Co., 39 Neb. 798; Slayton v. Fremont, E. & M. V. R. Co., 40 Neb. 840; Knapp v. Jones, 50 Neb. 490.) The wall in question was built by two adjoining lot owners, under a written contract so that one-half of the wall, divided longitudinally, rested on the one’s lot and the other half on the other’s lot. Each party to the agreement paid one-half of the cost of constructing the wall, and each Avas the OAvner in severalty of the portion thereof that stood upon his land, subject to the easement or right in the other to have it support the building which he might erect and attach to or
“Land covered by a party Avail remains the several property of the OAvner of each half, but the title of . each owner is qualified by the easement to which the other is entitled of supporting his building by means of the half of the Avail belonging to his neighbor. The only proper easement attached to a party Avail is the easement of support.” It does not include the right to go upon the land of the other. The easement of support is all that either can convey. (Ingals v. Plamondon, 75 Ill. 118; Gibson v. Holden, 115 Ill. 199.)
In Hoffman v. Kuhn, 57 Miss. 746, Chalmer, J., said: “The OAA-ners of adjoining buildings connected by a party Avail, resting partly upon the soil of each, are neither joint OAvners nor tenants in common of the Avail. Each is possessed in severalty of his own soil up to the dividing line, and of that portion of the wall Avhich rests upon it; but the soil of each, with the Avail 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 Avail 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 Avas erected, to-wit,
In Andrea v. Haseltine, 58 Wis. 395, Lyon, J., in speaking of party Avails, observed: “It seems to be the settled Iuav that the owners of a party Avail standing in part upon the lot of each are not tenants in common of the wall, but that each owns in severalty so much thereof as stands upon his lot, subject to the easement of the other owner for its support, and the equal use thereof as an exteifior Avail of his building. Such being the tenure by which the Avail is held and owned, it seems logically to follow that either owner may, at least upon his own land, do anything with the wall, or make any use of it, which does not interfere with or impair the enjoyment of such easement by the other owner.”
Applying the principle governing the foregoing decisions to the case at bar, it is very plain that the defendants, below had no right to go upon the lot of the adjoining owner and obliterate the sign painted by plaintiff on the east surface of said party wall. The instruction criticised was pertinent and proper.
Instructions were tendered by the defendants, which were refused, announcing the doctrine that the owners of the lots on which the wall was erected were joint owners of the wall, and directing the jury to find a verdict for the defendants. From what we have already said in this opinion it follows that said requests to charge were properly refused.
It is urged in the brief that the court erred in not giving instruction No. 3 asked by the defendants “found on page 177{-.” No instruction tendered by defendants appears on said page of the record, but such page contains instructions requested by the plaintiff, which were refused by the court. On page 177| there is recorded de
Complaint is made of the rule of damages laid down in the following portion of the charge of the court: “The plaintiff is entitled to recover as its measure of damages in this action such amount as will compensate it' for the loss it sustained in consequence of defendants’ wrongful act in erasing and marking out the sign in question, the cost of replacing said sign, including railroad fare of workmen from Chicago or elsewhere, if sent specially for that purpose, together with hotel bills to plaintiff. The actual cost of repairing, replacing, and maintaining said sign under its contract to the Durham tobacco people is-plaintiff’s full measure of damages, and this you will ascertain and allow in such sum as from a preponderance of the evidence you find to be such cost, but you cannot
Affirmed.