123 Wash. 425 | Wash. | 1923
One of respondent’s predecessors in title was the owner of lot nine in a certain block in Pas-co and constructed a building thereon. At that time one of the appellant’s predecessors in title, a Mr. Page, was the owner of the adjoining lot ten, which was
Acting under this agreement, Mr. Page, at the time the wall was being constructed, bought and caused to be installed in it certain hangers, or stirrups, into which girders might be placed for the purpose of supporting any building which he might thereafter construct on lot ten. Some years afterwards, appellants became the owners of lot ten, and were in the act of constructing a building thereon and using the hangers which they found in the adjoining wall when the respondent, which had become the owner of lot nine, brought suit to enjoin them from using these hangers, or in any way using the wall as a partition wall.
The testimony shows that, while the wall itself is entirely on lot nine, the hangers, a part of the coping and a part of the window sills of the building on that lot hang out over a part of lot ten, and the concrete
Throughout the trial in the lower court, and in the briefs and arguments here, the contention has been that the wall in question is a party wall and may be used as such. It is our view that the only question in this case is one of encroachment. Party walls can be created only by contract or by statute. 20 R. C. L. 1084. When, by agreement of the only parties at that time interested, the party wall agreement was destroyed and rescinded and the consideration therefor returned, the wall ceased to have any elements of a party wall. The case now stands as though such an agreement had never been made, and there is left only the question of encroachment.' Such being the case, appellants are not entitled to put any weight on the
“An encroachment is deemed a private nuisance which an adjoining owner, who is thereby deprived of the complete enjoyment of his land, may generally abate; but in removing the encroachment care must be taken to remove no more than actually encroaches, and to refrain from causing unnecessary damage.” 1 C. J. 1208.
It follows from what we have said that the major portion of the decree was properly made. We think, however, that the provision thereof which we have quoted, permitting the appellant to use such portions of the encroachment as shall remain after the respondent has had thirty days in which to remove them, is not sufficiently broad. It may be, and in this particular case it doubtless is true that the appellants will not be able to use any, or at least some, of the encroachments, and since those they cannot use must be in their way and to their damage, the court should have provided that they may not only use but remove such encroachments as shall remain after the period of thirty days given the respondent in which to remove them.
It may be that this portion which permits appellants to use the encroachments is contradictory to the remainder of the decree and not justified under the law or the evidence, but if it be wrong it is a wrong against the respondent, who does not appeal, and it therefore cannot be here corrected.
The decree is modified as here indicated, and as so modified is affirmed. Neither party will recover costs in this court.