Hutchins v. Munn, 22 App. D.C. 88

Hutchins v. Munn

22 App. D.C. 88 | D.C. Cir. | 1903

Mr. Justice Shepard

delivered the opinion of the Court:

1. The general and rather vague terms in which the alleged' agreement with Windom is stated in the bill indicate what was. practically conceded on the argument, that it was a verbal agreement or understanding only. That being the case, the agreement itself, even had express notice of it been brought home to Mrs.. Munn before her purchase, created no restriction upon the fee-simple title vested in her by the conveyance from Windom. By the overwhelming weight of American authority, an easement of the nature of that claim constitutes an interest in the land, and must be evidenced by writing duly executed. See 10 Am. & Eng. Enc. Law, pp. 409, 411; 19 Am. & Eng. Ene. Law, p. 114, where the decisions have been collated.

It is doubtless true that there may be cases in which a parol *99agreement conferring an easement or creating a servitude — when formed by one party in a manner and to an extent effecting a radical change of bis relations in respect of the subject-matter, so that the subsequent refusal of the other party would work an injury substantially remediless at law — may be enforced in equity, though not binding at law, in accordance with the well-established principles of the doctrines of part performance, or estoppel in pais.

But no such conditions are shown in this case. It does not appear that any consideration whatever passed to Windom for his alleged agreement to maintain the side yard, or open space, upon his lot for the benefit of the complainant. It is not alleged that the wall partly erected on Windom’s lot was constructed for his benefit or advantage in any particular; on the contrary, any possibility of value or advantage accruing to him thereby is precluded by the agreement as alleged which made it impossible for him to utilize any part of the wall for improvements upon his premises.

The mere erection of this wall, partly upon Windom’s lot, was clearly not in part performance of the alleged agreement by which the latter surrendered his right to erect any structure upon the remaining portion of his own lot. If the complainant had had no right to erect the wall partly over the line of Windom’s lot, then the consent of the latter thereto, or even his acquiescence, with full knowledge, might be sufficient to estop him and his grantees to demand its removal.

However this might be, it would afford no ground for an estoppel to the exercise of the undoubted right of dominion over the remainder of his lot. But the right of the complainant to build his house wall partly across the division line of the lots was in no respect dependent upon the consent or acquiescence of Windom. It was given by the plain terms of a section of the building regulations that had been in force in the city of Washington since October 17, 1791, the authority for the enactment of which has a peculiar foundation.

In the conveyance by the original proprietors to the commissioners for the foundation of the capital city, it was declared that *100tbe property so conveyed should be subject to such terms and conditions as should be thought reasonable by the President for the time being for regulating the material and manner of the buildings on the lots generally in said city, or in particular streets or parts thereof, for common convenience, safety, and order; provided such terms and conditions be declared before the sale of any of the said lots.

i On October 17, 1791, and before the sale of any lots under the terms of the grant to the commissioners, President Washington promulgated the rule respecting party walls that is embodied in § 62 of the regulations as re-enacted and amended. United States ex rel. Strasburger v. District of Columbia, 5 Mackey, 389, 394; Priest v. Talbott, 16 App. D. C. 422, 424.

, Section 62 further provides that “the first builder shall be reimbursed one moiety of the charge of such party wall, or so much thereof as the next builder shall have occasion to make use of, before such next builder shall in any way use or break into the wall, the charge or value thereof to be set by the person or persons so appointed by the commissioners.” As the wall was built under a permit from the commissioners, and occupied no more space than the regulations authorized, Windom was powerless to prevent its erection, and his apparent acquiescence can be regarded as nothing more than an unquestioning acquiescence in the enforcement of the law. But no matter what might have occurred as between Hutchins and Windom in regard to the construction of this wall, Mrs. Munn had no actual notice of anything affecting the title which she acquired. All the notice that can be imputed to her is that of the existence of a party wall with its legal incidents and nothing more.

It appears without contradiction, as we have seen, that she subsequently utilized a part of this wall in the erection of two small additions to her building, and paid the complainant, who seems to have raised no objection to the construction, for so much as was used, in compliance with the provisions of the regulation relating to party walls.

2. The fact that in erecting his house the complainant provided certain windows overlooking the then unoccupied ground *101of the Windom lot, without objection by or with the acquiescence of Windom, invested him with no easement in said space for the enjoyment of light and air by means of said windows.

Even if the grant of such an easement might, under some circumstances, be implied, — a question not necessary to be determined, — the foregoing are clearly insufficient for such purpose.

Whilst the location of the windows is not made clear by the allegations of the bill, it would seem that they open upon the space of the complainant’s lot made by the re-entrant angle heretofore mentioned in the description of the wall of his house. Neither Windom nor his grantee could have prevented the insertion or maintenance of these windows; nor had they any right of action against him for thus overlooking their private grounds. In such case “the party has no remedy, if he is not guarded in his privacy by deed or contract, but to build on the adjoining land opposite the offensive window.” Schafer v. Baker, 16 App. D. C. 213, 222.

Even had the complainant, by means of those windows, enjoyed the benefit of continuous, unobstructed passage of light and air across the open space on the adjoining lot for a period of more than twenty years, he would not be entitled to claim an easement therein by prescription or. presumption of grant. The authorities in this country are practically unanimous in holding that no such easement can be thus acquired. 19 Am. & Eng. Enc. Law, p. 118.

But were it conceded that, by his acquiescence in or express consent to the erection and enjoyment of windows overlooking his vacant ground, the grant of an easement might have been raised by implication or estoppel as against Windom, his grantee, without restriction or notice, could not be bound thereby. The mere existence of the windows in the adjoining house, at the time of the conveyance to Mrs. Munn, was not sufficient to put her upon notice of the grant of the perpetual easement that is claimed.

It would seem that, by the weight of American authority, one who erects a house upon a lot belonging to him, with windows overlooking an adjoining vacant lot and receiving light and *102air across tbe same, and then conveys to another, is not thereby precluded from building on the adjoining lot, whether before owned or subsequently acquired, in such way as to intercept the passage of air and light through said windows. Keats v. Hugo, 115 Mass. 204; 15 Am. Rep. 80; Cherry v. Stein, 11 Md. 1, 24; 19 Am. & Eng. Enc. Law, p. 115. The foregoing doctrine is not, however, involved in this case, and is referred to merely by way of illustration.

3. An additional contention of the complainant is founded on the alleged violations of the provisions of the building regulations in the matter of granting the permit under which the work of construction upon the lot of Mrs. Munn had been carried on. These are, first, that the application was made by Charles A. Munn instead of by his wife, the real owner; second, that the permit was issued to him and not to her; and third, that the permit fails to. preserve at least 10 per cent of the lot and premises free from all construction from ground to sky for the purposes of light and ventilation, as is required by § 33 of the said regulations.

It would seem that, notwithstanding the new construction as permitted, the facilities for light and ventilation on the premises of Mrs. Munn fully satisfy the requirements of the building regulations as amended before the issuance of the permit. But be that as it may, the complainant, having, as w.e have seen, sustained no legal injury through the construction on the adjacent premises, has no foundation upon which to raise the question of the sufficiency of light and air in so far as those premises alone are concerned, or one relating solely to irregularities in the proceedings to obtain the requisite permit from the District authorities.

The contract for the building having been let by the owner of the premises, and construction thereunder begun, the permit, though issued upon the application of her husband and in his name, would bind the public authorities themselves, unless in an action instituted by them they would be able to show a clear case of departure from its terms, or danger to public interests of which they are the lawful conservators. Dainese v. Cooke, 91 U. S. 580, 583, 23 L. ed. 251, 252.

*1034. It appears from the pleadings and the ground plan of the proposed construction attached thereto as an exhibit, that the western wall of Mrs. Munn’s addition stands in part upon the lot of complainant for a portion, if not all, of the distance between the corner of his house and the building line on Massachusetts avenue. This extension, of from 10 to 15 feet, is a prolongation of the wall erected by the complainant in the construction of his own house, and occupies no more space than is permitted by the regulation providing for the erection of party walls. The validity of the regulation permitting the owner of a lot to erect the wall of his building partly upon the adjoining lot of another to the street building line is not denied; but the complainant contends that where there has heen a construction by either party, for a portion of this distance, the power under the regulation is thereby exhausted, and further construction on the same line becomes dependent upon consent. We can not accede to this view. The right to erect such a division wall between adjoining premises of diverse ownership is distinct in each, and runs with the title in its changes. Such being the case, its exercise can not he determined by the act of one party without some form of binding consent on the part of the other. When one builds a party wall in the execution of a permitted plan of improvement upon his own lot, he may regulate its length at pleasure. The adjacent owner is not concluded by the other’s choice, but may build at his own pleasure, within the limitations of the public regulations. In doing so he may use the wall of his neighbor for the whole or a part of its length, and may prolong it in either direction. If he uses no part of it he is not compelled to pay any portion of the cost of construction. If he uses a part only, he must first pay a corresponding portion.

It will not he claimed that the regulation in express terms requires that he shall exercise his election once for all. Necessarily it must have occurred time and again since the first promulgation of the regulation, and will likewise occur in the future growth of the city, that an owner, owing to limited means or other controlling conditions, would build a small house at *104first and use but a limited portion of a ready constructed party wall. Subsequently, be, or bis successor in the title, might find it necessary or desirable to extend the old building, or substitute it with another of greater size.

On the other hand, the first builder might be immediately followed by the adjoining owner with a prolongation of the wall in the construction of a larger building. To say, in either case, that the power to build an additional party wall without mutual consent has become exhausted would be an unreasonable restriction the intent to create which ought plainly to appear in the words of the regulation.

The decision upon which the appellant relies in support of his contention is founded on a very different state of facts. Calmelet v. Sichl, 48 Neb. 505, 67 N. W. 467. There in the absence of a party wall regulation, one was built by mutual agreement for houses of three stories in height. Subsequently, one of them, without the consent of the other, commenced to raise the wall one story higher, and an injunction was granted to prevent it. He had no right to use the wall beyond the terms of his contract.

Though the complainant may suffer great hardship through the cutting off of light, air, and view heretofore freely enjoyed, that fact alone can not justify a court of equity in restraining the adjoining owner from the exercise of lawful dominion over his own property. The decree must therefore be affirmed, with costs; and it is so ordered. Affirmed.