78 Mo. App. 522 | Mo. Ct. App. | 1899
On May 22, 1889, plaintiffs made a contract with Woolf Brothers to build for them on the lot of plaintiffs’ a three story brick building, to be used for a laundry, which, when completed,was by said contract leased to Woolf Brothers for a term of ten years “from and after the date when said building (should) be ready for occupancy and use by the said Woolf Brothers.” This lease contained a covenant by plaintiffs to “keep the entire outside of said building in good repair, excepting the windows and doors,” which were to be kept in repair by the lessees, unless damaged by “the elements without negligence” of the lessees. Another provision of this lease is, that “in case said building shall be damaged by fire or the elements so that the same shall interfere with the carrying on of business” of the lessees “in the building, then in case said damages to said building can be repaired within forty (40) days after notice” to the plaintiffs or their agent, they were bound to do so and make a proportionate reduction in rent; and in case it could not be repaired within the time, the lease to be terminated. By the terms of this contract the building was to be completed within five months from May 22, 1889, and sooner, if possible.
Before the construction of their building under this contract, plaintiffs made the party wall agreement sued on. This agreement is dated July 5, 1889. It recites the ownership by the parties of their respective lots, and the desire of plaintiffs “to erect on their land a brick building,” and to have “the east wall of said building built with its center
In accordance with this agreement plaintiffs, in 1889, built the party wall the full length of the boundary line and fifty-five feet high. It was bruit of brick with a stone foundation and footings and in places almost touched the west wall of the old building on defendant’s lot. After
Concurrently with the execution of this lease, defendant and his lessee made an agreement in regard to certain “changes” and “betterments” to be made in defendant’s premises, to cost “at least” $510, for which sum defendant was “to sign and deliver” to his lessee “a receipt * * * as a credit on the rents due and payable under said lease.” “The application of said sum and the reparation of said premises” were “to be from time to time surveyed and inspected by J. D. Dockweiler,” and “the bills and receipts for all labor and materials used in such repairs” the lessee was to “produce and deliver” to defendant. Defendant then agrees that his lessee “may make the following changes in said premises, No. 804 East 12th street subject, however, as to workmanship and safety to his approval, to wit: to cut three (3) openings through the party wall on the west side of said building, provided lessee secure the consent of adjoining property owner thereto; to extend the upper story of said 804 East 12th street back the full depth of the present addition, and to erect in the rear of the present build-
Under this lease and contract defendant’s lessee entered into possession of his lot, tore down a part of the “addition” to defendant’s building, mentioned in the contract, and built a two story brick extension thereof, including an engine room. This extension is a substantial structure, built of brick, the full width of defendant’s lot. The engine room has a concrete floor, and the engine sits upon an independent foundation. The joints, upon which is laid the floor of the second story and the roof of this extension, are set into the party wall a distance of six inches. The height of the extension is about thirty feet above the foundation of the party wall, and the length of it is admitted to be thirty-eight feet. The party wall forms the west wall of the entire extension, in both its first and second stories. The north wall of the extension is formed by the south wall of a brick building belonging to plaintiffs, which is not in controversy here.
This extension was built under the immediate supervision of defendant’s agent, Doclcweiler, who approved it. Vouchers for the sum of $510, part of the cost of it, were submitted to and allowed by defendant, and credited on the rent of the premises.
In addition to the extension above mentioned, openings were cut through the party wall, according to the contract, so as to give access from one building to the other. Some of these openings were also cut through the west wall of the old building on defendant’s lot. In order to prevent rain, water, snow, or anything else from going down between the two buildings and into these openings, the space at the top of the wall of defendant’s old building, and between it and the party wall, was covered over with cement. The use of the party wall in the manner described has continued since the summer of 1892 until the present time. While
On April 28, 1897, plaintiffs in writing demanded of defendant that he proceed to have the value of that part of the party wall used by him as described, determined either by agreement of the parties, or, if they could not agree, then by arbitration as provided in the party wall agreement. On May 31, 1897, defendant declined to do either. On August 17, 1897, this suit in equity was begun.
On February 7, 1898, after trial had, the issues were found for plaintiffs, and a decree entered charging defendant with one half the value of the whole thickness of the portion of the wall, including foundation so used by him at the time it was used, viz: in 1892, with six per cent interest thereon, not from the time the user began, but from the date of the demand to agree on or determine the value. The amount
the value thereof. The central idea, the true, comprehensive and undivided meaning of the term “party wall,” when used in an agreement between the owners of adjoining lots of land, providing that one may build a pai*ty wall resting one half on each lot, and that the other shall have the right to use it in payment of one half its value, is that of mutuality of benefit, and excludes the idea of any exclusive wall. Harber v. Evans, 101 Mo. 665. In Jones on Easements, section 636, it is stated that, a party wall is used by the owner of an adjoining lot, within the meaning of a party wall agreement, when he erects a building which is supported to some extent by such wall. The use which makes him responsible is the use of the wall for his own structure. He must have used the party wall for the support of his own building; he must have broken into the plaintiffs’ wall for that purpose, or must use it by some permanent, physical attachment of some sort acquiring support for his own building by that permanent, physical attachment. These statements made by the author are well supported by the adjudicated cases. McEwen v. Nelson, 40 Ill. App. 272; Maloney v. Dixon, 65 Iowa, 136; Shaw v. Hitchcock, 119 Mass. 254; Deere v. Weir-Shugart Co., 91 Iowa, 422.
In the last cited case it was said that: “It is true that a most important use of a party wall is to give support to the
The parties here are not tenants in common but each is the owner in severalty of his own part, both of the Avail and the land on which it stands, but the title of each is qualified by a cross easement in favor of the other, which entitles him to support his building by means of the half of the wall belonging to his neighbor. Graves v. Smith, 87 Ala. 450. There is no doubt that under the authorities that
But in the present case, the defendant made openings in the wall of his old building, which, of course, he had a right to do, and thus exposed the same, as well as the interior of such building, to rain, snow, sleet and to' hot and cold atmospheric drafts, and for the purpose of protecting these against such an exposure he cemented .the top of his own wall to the party wall. By the act of cementing this Avail of his old-building to the party wall he was enabled to- inclose such building and protect its interior from the action of the elements. This practically made the party wall one of the Avails of the defendant’s building. Such use of that part of the party Avail, we think, in Ariew of the authorities already alluded to, rendered the defendant liable for one half the value thereof, and this Avithout reference to the openings made therein by the defendant.
The addition which the defendant made to his old building Avas of a substantial and permanent character. The joists of the second story and roof were inserted in the party wall and the Aveight of the second floor and the roof was supported by the party wall. Besides this, the party wall Avas made one of the walls to complete the inclosure of the new building. This, it seems to us, was, within the meaning of all of the authorities, such a use of that part of the party wall to Avhich the new building was attached, as made the defendant under the contract liable to plaintiff for one half of the value thereof .
The alteration and extension of the building was contemplated by the agreement between the defendant and his lessee, and Avas made at the expense of the defendant under
Tbe decree of tbe court was proper and, we think, should be affirmed, which will be so ordered accordingly.