41 La. Ann. 194 | La. | 1889
Lead Opinion
The opinion of the Court was delivered by
Plaintiffs and defendants are owners of contiguous properties on Canal street in this city which were separated by a wall in commou.
Plaintiffs, having entered into a contract with the Pickwick Club to erect for its use as lessee the splendid structure which now exists at the corner of Canal and Carondelet streets, found the existing party wall insufficient to support the increased height and weight.of their proposed new building, and that its demolition and reconstruction would be necessary. This, of course, involved an invasion of the property of defendants and a disturbance of their enjoyment.
Sundry interviews took place between the parties, having in view an amicable adjustment of their respective rights, concerning the precise tenor of which the testimony is contradictory. Without discussing these contradictions, suffice it to say that the interviews resulted in an entire failure to reach any agreement; that the defendants made sundry claims to compensation, which were disallowed; that their consent to plaintiffs’ entry upon their promises was not given; that plaintiffs’ right to make such entry, without consent, was not acknowledged; and that
Under these circumstances and under the pressure of their important contract with the Pickwick Club, which did not brook delay, plaintiffs resorted to the present suit for an 'injunction.
In their petition they set forth substantially the existence of the old party wall; their intention and contract to erect on their property a larger and higher structure •, the insufficiency of the old wall to sustain such structure; their legal right to demolish it and to erect in its stead a new, stronger and thicker wall, capable ofsupporting both their own and the building of the defendants, the same to be built at their own expense, and the additional thickness thereof to be taken from their own soil; the necessity of entering upon defendants’ premises in order to demolish the old wall, to build the new one, and to excavate for the purpose of laying a sufficient foundation; the refusal of defendants to consent to or permit such entry, and their threats to resist it without indemnity previously agreed upon and paid; the injury which would result to them from being impeded in the exercise of their legal rights ; and on these allegations they applied for and obtained an injunction restraining defendants “ from impeding or obstructing the petitioners in the demolition of the party wall * * and in the putting up of a new wall of sufficient strength to support petitioners’ new structure and the building No. 142 Canal street, and from interfering with the petitioners or their agents and workmen in going upon the premises No. 142 Canal street to make the necessary excavation for the new foundation to be laid for said wall and for putting up the proper shoring and weatherboarding and doing such other work as may be necessary for the support and protection of the building No. 142 Canal street during the process of demolition and reconstruction of said wall.”
Defendants answered putting at issue plaintiffs’ right to the injunction, and also made a claim in reconvention.
This reconventional demand has been enlarged by several supplemental petitions. All the matters were tried together and resulted in a judgment dissolving the injunction and rejecting plaintiffs’ demand, and in favor of defendants on their reconventional demand in the sum of four thousand dollars, as actual damages with a non-suit as to their claims for prospective damages.
From this judgment the plaintiffs have appealed, and the defendants have filed answer in this court asking for an increase of damages and 'additional relief.
I.
We are unable to agree with the learned defendants in their views.as to the scope and operation of the injunction applied for by plaintiffs. They seem to regard it as having effect absolutely to seal their lips and to tie their hands, and to authorize the plaintiffs, as long as it remained in force, to enter upon their property and there to do whatever it pleases them according to their own sweet will.
If this were correct, of course, such an injunction would have been an outrage and the propriety of its dissolution could not be questioned.
But from the careful analysis above made of the averments of the petition and the terms of the injunction, it fully appears that plaintiffs simply asserted their legal right, upon the facts alleged and the law applicable thereto, first to demolish the old wall; second, to erect, in its stead, a new wall having sufficient strength and thickness to support both their now structure and that of defendants, the same to be built at their own expense and the additional thickness to be taken from their own soil; third, to provide for said new walla sufficient foundation; and fourth, for the foregoing purposes to enter upon defendants’ premises and use the same as far as necessary. To the extent of restraining defendants from hindering them in the exercise of the rights asserted, the injunction went; but no whit beyond. As to the details and mode of execution of the work; as to the extent and duration of their entry on defendants’ premises; as to the location and sufficiency of the new wall, and as to all kindred matters, the parties stood outside of the injunction, under the sole and equal protection of the law, and wore alike untrammelled in the vindication of their legal rights.
If the facts alleged are true; if the legal rights asserted flow from a correct application of the law to those facts; and if the plaintiffs had grounds to apprehend that defendants would impede and Mnder them in the exercise of those rights, then the injunction was piropierly issued and should have been maintained; otherwise it would not.
1. As to the facts, there is no dispute that plaintiffs and defendants were owners of contiguous p>rop>erties having between them a wall in common; that plaintiffs desired and had actually contracted to erect a new, heavier and higher structure on his property; and that the old wall was insufficient to support the additional weight which would be imposed upon it.
2. On these facts, what rights did the law accord to plaintiffs f Let
The foregoing Articles are literal translations of Articles 658 and 659 of the French Code.
It seems to us that these textual provisions distinctly affirm the existence of every right asserted by plaintiffs in their petition. The right to build a new and thicker wall, adequate to the support of their new structure as well as of defendants’ building, at their own expense, and taking the additional thickness from their own property, necessarily involves and includes the rights to demolish the old wall, to establish a sufficient foundation for the new and thicker wall, and to disturb the defendants’ enjoyment and to enter upon their property for the purpose and to the extent necessary to exercise the principal right. Ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest. No other rights were asserted in the petition and with no other were the defendants restrained from interfering.
3. We have already expressed our opinion that plaintiffs had sufficient grounds to apprehend that defendants would impede or hinder them in the exercise of their rights, and it is needless to enforce it by further discussion of conflicting testimony, which, notwithstanding- its contradictions, we fully believe to be sincere and honest on both sides.
Although many of the defendants’ objections were undoubtedly levelled at the plan of construction proposed, yet there was never any acknowledgment of plaintiffs’ rights to disturb their enjoyment or enter on their premises for any purpose without their consent; and the persistent demand for previous indemnity as a condition of such consent, implied a claim of right to that effect for which the law affords not the slightest support.
An attempt to enter the premises of which the defendants were owners and proprietors, for any purpose, however lawful, against their consent and over their protest, might well have encountered resistance and would, in any event, have been a high-handed measure; and we think the learned counsel of plaintiffs gave them sound- advice in suggesting that they should put themselves under the protection of the law through the injunction proceeding.
The learned judge a quo has taken the view that plaintiffs’ right could
We can discover no warrant in the law for such a doctrine. The rights conferred upon co-proprietors by Articles 681 and 682 are absolute and unqualified; and when a right is conferred without qualification, its exercise, in absence of express provision to that effect, is not subject to any condition of consent by other persons; and authority conferred by law is amply sufficient without the necessity of obtaining additional authorization from a court. The possessor of such a right is free to exercise it' and if resistance thereto is made or threatened, he has need of no other judicial assistance except that invoked in this case to restrain and prevent such interference. See Pierce vs. Musson, 17 La. 394; Dorville vs. Amat, 6 Ann. 566; Gettenworth vs. Hedden, 30 Ann. 30.
The Codes of Louisiana and France both contain the following article : “ Neither of the two neighbors can make any cavity within the body of the wall held by them in common, nor can he affix to it any work without the consent of the other, or without having, on his refusal, caused the necessary precaution to be used, so that the new work bo not an injury to the rights of the other, to be ascertained by persons skilled in building.” R. C. C. 685; C. N. 663.
The French Code of Procedure contains certain special provisions to carry this article into effect by judicial proceedings, but although there are differences of doctrinal opinion on the point, the French Court of Cassation has repeatedly hold that the article is not aqjplicable to the cases of raising or reconstructing the wall in common as provided in R. C. C., Articles 631 and 682, and the corresponding Articles, 658 and 659 of the French Code; that high tribunal deciding that the rights granted by those articles are absolute and subject to no other conditions than those contained in the articles themselves; and that the co-proprietor desiring to exercise them “ is not bound to obtain in advance the consent of the neighbor, or, on his refusal, to cause a settlement by experts of the measures necessary to prevent the new works from doing injury: to this case Article 662 C. N. (R. C. C. 685) has no application, that only providing for the case of cavities and attachments to the body of an existing wall.” Cass. 18 April, 1866, p. 66, 1175 ; Cass. 11 April, 1864, p. 64, 776; Cass, 18 August, 1874, p. 74, 1192; Paris, 8 July, 1858, p. 58, 881; Toulouse, 22d Nov., .1864, p. 65, 462; 5 Duranton No. 335; 7 Laurent No. 559.
We find no more merit in the ground taken by the district judge that
Eor these reasons, we hold that plaintiffs’ injunction was properly issued and that there is error in that portion of the judgment appealed from which dissolved it.
II.
The successive reconventional demands of defendants embrace a variety of complaints and of reliefs — some of the latter so radical as to require an entire demolition and reconstruction of the party wall which has been built by plaintiffs.
This demand is based chiefly on three grounds, which will be discussed successively, viz:
1. Defendants claim that plaintiffs have violated their rights of property, without warrant of law, by extending the foundation of the now wall on their land beyond nine inches and beyond the width of the old foundation.
This contention is based on defendants’ construction of Articles 675 and 682 of the Code. The Art. 675 reads: “ He who first builds in the cities and towns, or their suburbs, of this State, in a place which is not surrounded by walls, may rest one-half his wall on the land of his neighbor, provided he builds with stones or bricks at least as high as the first story, and not in frame or otherwise; and provided the whole thickness of this wall do not exceed eighteen inches, not including the plastering, which must not be more than three inches.”
Article 682 has already been quoted, and it obliges the co-proprietor who requires a higher and thicker wall to take “ the additional thickness ” entirely from Ms own property.
Hence, say the defendants, the only warrant which the law gives to
We concede that these provisions are to be strictly construed; but such strictness cannot be carried to the point of attaching an impossible meaning to the law or rendering it practically nugatory.
Wo might assume as self evident two physical facts, both of which are, however, fully proved in this record, viz: First, that in this city, and in most portions of this State, a wall, in order to support the weight of buildings, must necessarily be provided with a foundation considerably wider than the wall itself; second, that in order to secure the benefit of the foundation the wall must rest upon its centre.
We are bound to assume that the Legislature was aware of such facts and legislated with reference to them.
Hence when the Code authorized the proprietor to rest one-half of an eighteen inch wall on the land of his neighbor, it necessarily includes authority to rest such wall upon the centre of a foundation adequate to support it and, therefore, extending a greater distance upon the land of each.
So in the case arising under Article 682, when the co-proprietor is authorized to replace the old wall in common by a new and thicker one, he is required to take the “ additional thickness ” of the wall from his own estate; but he is still authorized and bound to rest the new and thicker wall upon the centre', of an adequate foundation, and as a thicker wall requires a proportionately wider foundation, this necessitates a further equal extension of the latter on the land of each proprietor.
To hold that the entire additional thickness of the foundation must have been taken from plaintiffs’ land, taken in connection with the physical necessity of resting the wall on the centre of the foundation, would have thrown the whole superimposed wall entirely beyond the defendants’ line, and would have left nothing in community between the adjacent properties except a part of the foundation.
We have examined, in this connection, Article 684, the concluding proviso of which is so much insisted upon by defendants. That proviso has already been characterized as an obvious mistranslation of Article 661 of the French Code, which it was intended to reproduce, and has been practically nullified by this Court. Murrell vs. Fowler, 3 Ann. 166.
We conclude, therefore, that the plaintiffs had the legal right to extend the foundation equally on either side of its centre to the extent necessary to make it sufficient to support their new and thicker wall. It cannot be reasonably urged that the foundation.is unnecessarily wide, for ono of the most serious complaints is that, even with its present width, it is inadequate to sustain imoperly the weight of the superincumbent wall.
2. Defendants urge that idaintiffs have exceeded the rights invested in them by law because they have used certain wooden beams in the construction of the foundation, in violation of the proviso of Article 675, which reads: “provided he builds with stones or bricks at least as high as the first story, and not in frame or otherwise.”
The wall and the foundation proper are built entirely of brick, and the heavy wooden timbers were used only to form a firm and smooth basis for the foundation. Their use for this purpose is common and approved by expert opinion, and it no more violates the proviso above quoted than would the driving ’of wooden piles for the same purpose, which is the measure which defendants themselves contend should have been adopted.
3. The final ground is that the wall constructed by defendants is so radically and irremediably vicious and unfit to serve the purpose of supporting the building of defendants, that its demolition and proper reconstruction is the only relief adequate to secure defendants’ rights.
There is no doubt that plaintiffs wore bound to replace the old party wall which they demolished, by a new one sufficient to support the
In pursuing the plan of construction adopted, plaintiffs acted under the advice of competent architects and builders, and, although defendants objected, they never resorted-to the remedies allowed by the Code for the stoppage or prevention of the erection of new works. Rev. C. C. B. II., Title VI.
The only judicial interference they ever invoked during the progress of the work was by a rule taken in this case, which did not suggest any stoppage or prevention of the work, but only asked for an increase of the injunction bond as security for resulting damages, and even this rule was never pressed to trial but remains to this day without action.
Under the view we have taken of the scope and purposes of the injunction, these remedies were open to defendants, and after thus permitting the construction to be completed without molestation, the case would have to be an extreme one which would justify so heroic a remedy as the destruction of the work. We are not satisfied that such a remedy is at all necessary. The wall has proved to be a sinking wall, undoubtedly injuring defendants’ building; but it has not prevented its occupancy and enjoyment. It has always been rented at bill rates, and tlie injury is susceptible of reparation in damages. It may well be hoped that the future sinking of the wall may be arrested and may perhaps cease altogether.
Various other amendments of the judgment aiipealed from are prayed for by defendants. We have considered them, but with the simple statement that they do not meet our approval, we may dismiss them all except that for the increase of damages, which, on the other hand, the plaintiffs claim should be reduced.
The settlement of the questions here involved will be promoted by a succinct enunciation of the general principles by which the rights of the parties are governed.
In demolishing the old and building the new party wall, under the conditions fully proved in this case, plaintiffs exercised an absolute right conferred upon them by the law. Under the maxim nemmem Icedit qm juo-e suo utitwr, they were not bound to indemnify their neighbor for' any inconvenience or injury necessarily occasioned by the exercise of the right. Such a -work must of necessityincommode the neighbor. It cannot bo prosecuted without an entry upon and partial occupation of his premises. It must disturb his enjoyment and that of Ms tenants. It
Such is the well settled jurisprudence of France under like codal provisions. 5 Duranton, No. 331; 11 Demolombe, No. 406; 2 Aubry & Rau, § 222; 1 Pardessus, No. 174.
Considering that in the exercise of his right the proprietor, who demolishes and reconstructs the party wall, acts exclusively in his own interest and for his own advantage, and against the wish and interest of his neighbor, equity might well question the justice of imposing upon the latter alone the burden of such serious damage and inconvenience; and, indeed, such eminent jurists as Toullier and Laurent impose strong limitations upon the broad doctrine above enunciated. 2 Toullier, p. 391; 7 Laurent, No. 562.
They are overborne, however, by the vast weight of doctrinal and judicial authority, as well as by correct principle; because, however iust the limitations, it was for the law-maker to impose and define them, and, not having done so, courts cannot suppíy the defect.
The judicial duty in such a case was never better defined than by the court aver which one of the defendants so ably presided: “It suffices for us to say that, when statutes are free from ambiguity and absurdity, we are not called upon to investigate their expediency. Under a government of written laws, the judiciary is but the interpreter of the legislative will. The reform of the law, the redress of public grievances flowing logically from existing statutes, are high prerogatives which belong to the legislative domain.” Johnson vs. Bloodsworth, 12 Ann. 702.
But, on the other hand, plaintiffs are responsible for every exaggeration of these necessary damages, which, by any diligence, they could have prevented. They were bound, by every means in their power, to reduce to a minimum the injury and inconvenience occasioned to their neighbor; to occupy his property to the least extent and for the shortest time consistent with the exercise of their right; and to hasten, by all practical, means, the completion of the wall and the restoration of the neighbor to the full enjoyment of his property.
They were, moreover, bound, at their peril, to replace the neighbor, at the end of the work, in a position equal in every respect to that which ho occupied in the beginning, and to furnish him a wall fit and adequate to support his building without injury.
Defendants were deprived of the full enjoyment of their property for nearly ten months at a proven loss of rent of $220 per month.
We are perfectly satisfied that this was an unnecessarily long time; that it was consumed only because plaintiffs, consulting their own interests rather than their duty to defendants, chose to carry up their building as a whole; and that they might well have advanced the party wall much more rapidly and completed it to the height of defendants’ building in, at most, one-half the time, without subjecting themselves to any inconvenience or injury which they were not bound to incur for the benefit of .their neighbor.
We, therefore, hold them liable for five months’ rent, or eleven hundred dollars. The wall which was constructed proved to be a sinking wall. It began to sink immediately after its completion and had continued to decline gradually, though at a diminishing rate. While this sinking, being approximately equal on all sides, has not greatly injured their own building, it has been very injurious to the adjoining buildings.
Prom the moment that defendants recovered possession of their property, they have been subjected to a succession of annoyances and repairs. Their walls have been cracked; at one point their building was wrenched from the opposite adjoining wall in such manner as to be dangerous and to attract the attention of the city authorities; windowsills have been broken; doors have fallen out of plumb; plastering has been continuously breaking and falling; floors have been detached from the walls. Defendants have had no peace from the complaints of tenants and have been subjected to the necessity of constant repairs. These have cost an actual outlay of $383.
But the repairs done are mere patchwork. Their patched-up building is not what it was before these dilaindations occurred. To restore it to its previous condition; to replace cracked walls by sound walls; to straighten and repair its woodwork; to readjust its lines and levels, would involve a large and expensive work of reconstruction requiring time and necessitating additional loss of rent.
Another element of damages arises from the inferior value of this sinking wall. Almost the only compensation which the law assures to the proprietor whose wall is demolished under Article 682, for the inconvenience and damage to which he must submit, is that lie becomes the half owner of the new and thicker wall to the height of the old one, without cost. If the new wall is substantially and fitly constructed, as
We need not affix special valuations to each element of damage; we do not pretend to he able to render exact justice in such a case. The district judge has fixed the sum of four thousand dollars as the measure of actual damages suffered by defendauts with a non-suit to all claims for prospective damages.. While he has, doubtless, allowed some items which we disapprove, he has ignored others which we consider proper. On the whole we believe he has, 'in the amount allowed, done substantial justice. The basis of estimation is too uncertain to justify us in increasing it; hut we feel safe in holding that adding to the specific items above mentioned the damages arising from the other causes indicated, the damages suffered by defeudauts amount to at least the sum awarded by the judge a quo.
It is, therefore, ordered and decreed that that part of the judgment appealed from which rejects plaintiffs’ demand and sets aside the injunction he annulled, avoided and reversed, and that there he non-judgment in favor of plaintiffs on their principal demand and perpetrating the injunction; and that in other respects the judgment he affirmed, defendants to pay the costs of the principal demand in the court below and plaintiffs to pay those of the reconventional demand, defendants and appellees to pay costs of appeal.
Rehearing
On Application por Rehearing.
We think it sufficient to say that the damages, allowed by us cover all specific damages upon which evidence was taken in the lower court up to the closing of the testimony.
Rehearing refused.