238 Pa. 415 | Pa. | 1913
Opinion by
A preliminary injunction restraining the defendants from breaking into or using a party wall without payment of a proportionate part of the cost thereof was dissolved upon the filing of a bond. A stipulation was filed fixing the amount of defendants’ liability, if any existed, and at the hearing on bill, answer and proofs, the only question was whether the defendants had made such a use of the party wall as to render them liable for a part of the cost of erecting it.
In 1892 the plaintiff, desiring to erect a banking house, obtained a permit to remove a party wall which was on the line between a building on its lot and a building on the defendants’ lot and it erected a new
In remodeling the building the front and rear walls were removed and new walls erected. The wall in front was made five feet higher than the old wall, for architectural effect only, and the rear wall was built thirteen inches in thickness instead of nine inches, the thickness of the old wall, to comply with the building requirements of the City of Pittsburgh. New brick and masonry piers were built at the front and rear corners of the defendants’ property adjoining plaintiff’s party wall, the rear pier being built into the same channel in the party wall in which the old brick pier had been inserted. The front pier of the building was removed and a new brick and concrete pier was built on its own foundation, close to the party wall, and at the suggestion of the building inspector it was attached to the party wall with iron ties. The pier removed had rested against and was toothed to the old wall. The cellar was excavated to an additional depth of three feet and a cement floor was laid therein. Furring strips were attached to the party wall in the cellar and second, third and fourth floors and the wall was plastered. The plaster on the first floor was repaired. The old elevator at the rear of defendants’ building and adjoining the party wall was removed and the joists were extended across the elevator shaft into the holes in the party wall in which they had rested prior to the installation of the elevator. Near the center of the building a new elevator shaft was placed, with a somewhat larger area
Under the facts shown, we think the use made by the defendants of the party wall, did not within the meaning of the Act of April 8,1872, P. L. 986, impose on them any liability for a proportion of the costs thereof, for the reason that it was not a new use but a continuance of the old use to which they were entitled without payment. Section 4 of the act provides: “The owner or owners of said adjoining lot, his or their heirs or assigns or lessees, shall not use said party wall by building into or against it, or by in any way using it for any new building or structure, until he or they shall have paid to the first builder or builders, his heirs or assigns, the proportion of the cost of said wall, as fixed by said building inspector, or of so much of it as he may desire to use.”
The decree is reversed and the bill is dismissed at the cost of the appellee.