28 Iowa 233 | Iowa | 1869
Concerning the respective rights, duties and obligations of the parties, the decision in i Iowa, supra,, uses this language:
“ The second objection is one arising from a supposed inconvenience or difficulty in settling the rights of the respective owners. But why any more inconvenience than if the parties had voluntarily, or by agreement, thus settled their respective interests ? It is not very unusual, certainly, for one person to own the soil and the first floor of a building, and another the second, and perhaps the third, story of the same building. So one may own the soil, and other parties each own the different floors; and instances have doubtless occurred, where the owner of the soil has leased or conveyed to another the right to build the first story and occupy the same; and by agreement acquired the right to build on the same walls other stories, to be owned and occupied by himself. The respective rights of the pan-ties under such circumstances, when not controlled by contract, are easily settled by legal rules. And the same rules which obtain when the parties become voluntarily thus related, must govern when the relation is an involuntary one. We need not refer in detail to their respective rights and obligations, nor do more than to say, generally, that each is to use his own so as to do as little injury to the froperty of the other as possible. The title to the soil remains, in the case before us, in the defendant or owner of the homestead. The purchaser under the execution acquires the right to the possession of the first floor and cellar, amd every part of each ; which right is to continue*239 so long as the same is iena/ntahle. He may rent it, and in every respect use and enjoy it, as his own property, having regal’d to the rights of the persons owning and occupying the remaining portion of the building. He has a right to protect his walls; to make all necessary repairs; and to all needful means of access to his said premises. The owner or occupant of the upper stories is to be in no manner disturbed in the possession of said premises; has a right to pass and repass by the ordinary and constructed passage or stairway, so as to enjoy and use his homestead ; but must do nothing to endanger the property of the purchaser under execution, nor to unnecessarily impair his rights. This is all we deem it necessary to say, at present, in reference to the legal rights and obligations resulting from this somewhat unusual division of this property. Guided by these suggestions or rules, there need be no reasonable ground for future trouble or difficulty.”
This, it is obvious, regards the parties, not as owners in common, but as having separate interests, as being in fact adjoining tenants, and not tenants in common. The interests of the parties is several, and is already divided.
So far, then, as the petition asks that the property may be partitioned, or sold and the proceeds divided, it is plain that there is no ground on which the court can order this to be done.
If these and similar allegations' are made for the purpose, as stated in argument, “ of having the law of the case more fully declared and the plaintiff’s rights defined,” this cannot be done in advance and generally, but only upon a case made, presenting specific grounds of action or specific questions for judicial settlement. So far as this record presents such questions, we can decide them, but no further. As to taxes, there need be no practical difficulty. In contemplation of law, each party has a title to his portion of the property, and each must pay taxes on his own. So as to repairs.
As each owns his part separately, so each must make thereon, at his own expense, at least all ordinary and usual repairs. The rules of law as to the rights and duties of adjoining tenants, in this respect, will apply to the peculiar relation of the parties with respect to this property. See Washburne on Easements, and cases and authorities cited in chap. 4, sec. 5, p. 480, et seq. As to extraordinary repairs, and liability to contribute to the repairs of other portions, such as flues, supports, etc., such questions .must be settled when the nature of and the necessity for the repairs are precisely ascertained, and no rule can be definitely stated beforehand.
It is averred in the petition that the plaintiff is obstructed in the use and enjoyment of the ground in the rear of the store, and that the defendant claims the right of passage in and out of the back door, over the plaintiffs lot; and that he throws offal, etc., upon it. By the original decision the adjoining property belongs to the plaintiff; and any unwarrantable use of it by the defendant will give the plaintiff the ground for an action for damages, or perhaps for other relief on a petition properly framed for that purpose.
In view, however, of the nature of the case, and the somewhat uncertain purpose with which several material allegations are made, it is deemed proper to remand the cause, with leave to the plaintiff to amend if he shall be so advised.
Affirmed and remanded.