Commercial Nat'l Bank of Ogden v. Eccles, 134 P. 614

Commercial Nat'l Bank of Ogden v. Eccles

134 P. 614 | Utah | 1913

Lead Opinion

MeOABTY, O. J.

(after stating tbe facts as above).

One of tbe grounds upon which appellants ask for a reversal of tbe judgment is that tbe findings of facts are not supported by tbe greater weight of tbe evidence. We do not deem it necessary to a clear understanding of tbe questions presented for us to either review tbe evidence in detail or set forth tbe substance thereof. We think it is sufficient to here state that we have carefully examined tbe record; and, while we find that there is a conflict in tbe testimony of some of the *97witnesses on certain issues, we are of tbe opinion tbat the findings of fact are supported by a clear preponderance of the evidence. The wall in question is entirely upon the land of appellant Eccles, and, as found by the court, respondent has “no interest in the lands upon which said wall stands.” There is much evidence, however, which tends to show that respondent purchased an interest in and became part owner of the wall up to the third story thereof. But since the court found that respondent acquired an easement only in the wall, and as respondent has not appealed or filed a cross-assignment of errors, we shall, for the purposes of this appeal, assume that respondent acquired no greater property right in the wall than an easement.

The important question, therefore, is; Did respondent’s right to an easement-in the wall terminate when the wall was rendered useless to appellant Eccles by the destruction of his building of which the wall formed a part? The position of appellants on this question is clearly stated by their counsel in their printed brief as follows: The purposes of the wall were “to support mutually two buildings, one of five stories and the other (respondent’s building) of two stories. The rights of the adjoining owners therein were mutual, a cross-easement, each with the right to have its building supported. When from calamity or accident such wall became useless for either of these mutual purposes, the condition or relation ceases. The purposes were gone.” And again they say: "The destruction of a party wall for the purpose for which it was used during the easement attaching thereto ends the easement and all rights thereum der.” Despondent acquired by purchase from appellant an easement in the wall up to the third story thereof, and has used the same as the north wall of its building. The joists of respondent’s building are fastened to and rest on the wall.

*981,2 *97The authorities practically all agree that, where a party has acquired an easement of support in a party wall, the accidental destruction of the wall terminates the ease*98ment and extinguishes all rights arising thereunder. Therefore, if the wall in question had been rendered useless or unsafe as a support to respondent’s building, or if it had been entirely destroyed by the fire, it might be argued with much force that such impairment or destruction terminated the easement. But this case does not fall within this well recognized rule. Under existing conditions respondent’s easement — property right — in the wall is just as valuable and available as a support to its building as it was before the destruction of appellant Eccles’ building. The question therefore arises: Mary Eccles, because of the destruction by fire of his building which so weakened the wall that it cannot be retained and used as a support for 'the kind of building he contemplates erecting on the site of the one destroyed, deprive respondent of - its property, easement, in the wall which furnishes the same support to its building as it did before the fire occurred ? To permit Mr. Eccles to tear down the wall and remove this support from respondent’s building without requiring him, at his own expense, to erect another wall in its place, and thereby provide the same support for respondent’s building as the present wall furnishes, would in effect be a confiscation of respondent’s property.

It does not follow because the wall is unsafe as a sup.port for the kind of building appellant Eccles intends to erect that he has the right to terminate respondent’s easement of support therein for its building, and proceed to take down and remove the wall to the irreparable damage of respondent. That Eccles has the right to remove the wall and erect another in its stead suitable for the building he contemplates erecting no one will deny, but in doing so he is bound to use ordinary care to avoid injury to respondent’s building and to rebuild' without unnecessary delay. (Putzel v. Drovers’ etc., Bank, 78 Md. 349, 28 Atl. 276, 22 L. R. A. 632, 44 Am. St. Rep. 298; Lexington Lodge v. Beal, 94 Miss. 521, 49 South. 833.) In the case last cited the principle of law applicable to the case at bar is well illustrated -in the following language:

*99“Where one of the buildings supported by a party wall has been destroyed, and the wall itself has been so weakened as to be dan-derous or insufficient as a support for the building which the owner of the destroyed building is about to erect, he has the right to tear down the insufficient or dangerous party wall and replace it with one stronger and better, provided he gives to the adjoining house the same right of support as it had in the old one. He is but exercising his legitimate rights of property. If it follow from this that the owner of the adjoining building will be put to inconvenience while the work of demolition and construction is going on, this is an unavoidable consequence . attendant upon the adoption and use of party walls. It cannot be the law that the fortunate adjoining owner, whose building is not destroyed, and who may be content with the wall, although weakened dr partially destroyed, can, by refusing to the co-owner, whose building has been destroyed, permission to tear down and rebuild the wall, compel him either not to build again or to build only such a structure as the wall remaining may suffice to support. * * * While the adjoining owner, whose building has been destroyed, and who wishes to tear down and rebuild an insufficient or dangerous party wall, will be accorded this right, it must be exercised so as to work no avoidable injury to the owner of the adjoining building. He will be liable if the work is done negligently and damage to the co-owner results therefrom.”

See, also, 30 Cye. 181, 182.

The judgment is affirmed, with costs to respondent.

Concurrence Opinion

STBAUP, J.

I concur. The plaintiff, for a valuable consideration, purchased an interest, not in the defendant’s building, but a portion of the south wall of his building five stories high. The portion of the wall in which such interest was purchased was but three stories high, and in length that of plaintiff’s building. It was purchased to furnish the north wall for its building three stories high, and to support the north side of it. True, it purchased no interest in the soil. But the interest purchased in the wall and the purpose for which it was purchased necessarily gave the plaintiff an interest also in the soil upon which the wall rested, so long as it remained and was suitable for such purpose. Such interest was perpetual and unconditional. The defendant’s building was injured by fire. The south wall was injured to such an extent as not to be sufficient, as found by the court, *100to support a building as was formerly supported on the defendant’s land or such a building — ten or eleven stories high — as the defendant proposes and intends to erect. But that portion of the wall in which the plaintiff for a valuable consideration purchased an absolute and perpetual interest was not materally injured, and is sufficient to safely and properly support the plaintiff’s building in the future as it did in the past, and for such uses and purposes- is substantially as good now as it was before. That interest, that use, that purpose — the thing bought, the thing sold and for which the plaintiff paid its money — was not destroyed or materially impaired. The plaintiff still has what it had bought and what the defendant had sold. That the wall was damaged or impaired for other purposes is the defendant’s misfortune. The plaintiff is not to blame for that, nor should it be charged with it by compelling it to surrender that which it bought and paid for and still owns and possesses. Observations are made that the defendant should not suffer the whole loss occasioned by the accidental fire. Every one under such circumstances must bear his own loss-. What the plaintiff suffered in such respect it must bear. So, too, must the defendant. The plaintiff with respect to the question in hand suffered none, for it still has about all it had before the fire. That the defendant has not is his, not the plaintiff’s loss. And for this reason do I see a distinction between the case here and one where had the wall been wholly destroyed or damaged, or that portion of it in which the plaintiff has an interest. For, in the latter, the interest of the plaintiff as well as that of the defendant would be destroyed or damaged. The thing in which they both had a common interest would no longer exist or be useful to either. But they had no common interest in the whole wall. The common interest was only to the extent of three stories and the length of plaintiff’s building. That was all the defendant sold and all the plaintiff bought. Above or beyond that, the defendant granted, and the plaintiff acquired, no interest. The thing so bought and sold and the purpose for which it was *101bought and sold was unrestricted and unconditional. Of course, they had the right to make their own bargain; but that is the bargain made by them. So above or below the third story, wind may blow and fire rage, but if they do -not damage or impair what the defendant sold and granted, and what the plaintiff unconditionally bought and paid for and still possesses and enjoys, I see no reason why it should be compelled to surrender it because the defendant. sustained a loss of property in which the plaintiff was given and had no interest whatever. Then it is also said that, if the plaintiff is permitted to use the new wall for the same purpose it used the old, it is granted or given something without consideration. Not so. It now has what it theretofore bought and paid for. The wall, for that purpose, is substantially as good now as it was before the fire. It, however, is not sufficient to support such a building as the defendant proposes and intends to erect. So the court, under its equitable powers, and as is proper, has given the defendant the right to remove it if he will erect another and give back to the plaintiff what he, by tearing down and removing the old wall, will take from the plaintiff. Thus, the surrender of what the plaintiff now has; and what it had theretofore bought of the defendant and now owns, possesses, and enjoys, is the consideration for requiring the defendant, if he takes down and removes the old wall, to erect a new one and give the plaintiff that right and interest in it which it owned, possessed, and enjoyed in the old wall at the time of its removal by the defendant. That is but equity, and is, I think, within the adjudged cases.

Dissenting Opinion

ERICK, J,

(dissenting).

I regret my inability to agree with the conclusions reached by my associates. I cannot do so for the reason that, if the judgment in this case becomes the settled law in this jurisdiction, much unnecessary litigation as well as much injustice must inevitably result between the owners of adjoining buildings, one of which, as in this case, is made uninhabitable through its destruction by fire. My asso*102ciates base their conclusions entirely upon the one fact found by the court that the wall in question was not entirely destroyed by the fire, but that a portion sufficient for the purposes of respondent was left standing, although such portion is entirely useless as a wall for the proposed building which appellant intends to erect, or for a building similar to the one that was destroyed. It is conceded upon all sides that the wall in question stands entirely upon the land of appellant; that the respondent never had nor now has any interest in the soil on which the wall rests; and that, if it has any rights whatever, it is merely an easement in the remaining wall, and nothing more. It is also conceded that appellant’s building was accidentally destroyed by fire, and that the remaining walls are wholly insufficient to support another building, and are therefore practically useless to him. My associates also concede, stating the fact in their own language:

“The authorities practically all agree that, where a party has acquired an easement of support in a party wall, the accidental destruction of the wall terminates the easement, and extinguishes all rights arising thereunder.”

In view of this concession, so frankly stated, I need not refer to the authorities upon the subject. They, however, seek to exclude this case from the consequences stated above for the reason, they say, that the remaining wall is just as valuable and available as a support to its (respondent’s) building as it was before the destruction of appellant Eceles’ building. In this statement, therefore, is contained the theory upon which my associates approve the judgment of the court below. This theory in my judgment is wholly fallacious. By the enforcement of it the loss occasioned by the fire is placed wholly upon appellant, and the respondent is permitted to escape from the consequence^ thereof, although it is conceded that appellant’s building, as such, and his walls for every purpose that he could use them for walls, are destroyed. Moreover, it is in effect held that, while respondent had a right or easement in the building that was destroyed by fire, it nevertheless has sustained no loss. From *103sucb bolding it follows that if the wall in question bad suffered greater destruction, or if it bad been entirely destroyed, then respondent’s rights or easement thereunder would have been extinguished. From this I am authorized to assume that if respondent had been so unfortunate as to have its building destroyed-by the fire in question, or by another, it would have lost all right to join another building to any new building that appellant might choose to erect, but since it had the good fortune not to lose all therefore it has lost nothing, and appellant must not only stand the whole loss, but in case he chooses to improve and use his own property by erecting thereon a suitable building he must yield a portion thereof to the use of respondent without any consideration whatever. I say without consideration since it must be conceded that all respondent purchased was an easement in one of the walls of appellant’s building, and when that building was destroyed the easement, in my judgment, was also destroyed. If this be true, how can respondent claim a right in an entirely different wall from that in which it purchased the easement? It seems to me that the fact which in my judgment is controlling is entirely overlooked. This fact is that respondent acquired an easement in a wall only while it was and continued to be a part of a building, and that when the wall from any cause over which the appellant had no control was so affected that it no longer was fit to support the building of which it was a part, so that the building ceased to exist, then the wall must also be held to have ceased to exist for the purposes of the easement. When, therefore, the building was destroyed, the wall for all practical purposes was also destroyed, and hence the easement in the language of my associates was extinguished.

If respondent desires to obtain an easement for all time in any’.building that appellant might erect in place of the old one, if that should be destroyed, it should have entered into a contract to that effect. Would any one familiar with the record in this case seriously contend that the respondent could have obtained what my associates now hold it did ob*104tain for the amount it paid for tbe alleged easement in the old wall, namely, an easement in a new wall which may continue for an indefinite period, or for so long as the building may last, and, if the old walls happen to continue to stand, that the easement would continue for all time?

But it is contended that, if respondent is not permitted to attach its building to the new one, it means a practical confiscation of- its property fights in the remaining wall. This assumes that the respondent acquired a right in a wall which continued after it had been destroyed to such an extent that it could no longer be used as appellant’s building, or as a part of any new one he might erect upon the ruins of the old. Respondent is thus given a right in a thing that has ceased to exist for the purposes contemplated by the parties when the easement was acquired, and has ceased to exist for every purpose except a pile of brick or stone and mortar which by accident, merely, is left large enough to answer the purpose of respondent, although it answers no other purpose whatever. The mere fact that the wall has to be removed by the wrecker instead of having been consumed by the fire cannot change its character either as a matter of fact or as a matter of law. Nor can any amount of words make that a wall which merely constitutes the debris of a ruined building. Neither was it contemplated by the parties that it should be so. The fact that the respondent now claims that the wall is sufficient for its purpose is the result of mere accident and is not based upon any contractual rights. For the purposes of the easement the wall was destroyed when it no longer could' be used as a part of appellant’s building or as a part of any building he might choose to erect. Had appellant willfully destroyed the building, or torn it down for the purpose of erecting another, with the intention of preventing the respondent from using the wall, the conclusion reached by my brethren might be justified. Under the undisputed facts in this case the conclusion reached, in my judgment, is not only unsound, but it takes from one and gives to another that which the court has no right to take or grant. In my judgment adjoining own*105ers should be permitted to make their own arrangements, if they can, with respect to the rights one may obtain in the property of the other.

The judgment should therefore be reversed and the action dismissed.