134 P. 614 | Utah | 1913
Lead Opinion
(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
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.
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
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,
Dissenting Opinion
(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
“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
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
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
The judgment should therefore be reversed and the action dismissed.