McVey v. Durkin, 136 Pa. 418

136 Pa. 418 | Pennsylvania Court of Common Pleas, Philadelphia County | 1890

Opinion,

Mb. Justice Stebbett:

It appears that, in 1847, Robert H. Thomas, owner of lot fronting sixty feet on Centre street, erected thereon two adjoining houses, numbered 255 and 257. In May, 1848, he conveyed the house and lot No. 255, thirty feet front on Centre street by one hundred and fifteen feet in depth, to William Selzer, and in June, 1848, he conveyed the other house and lot, No. 257, also thirty feet front by one hundred and fifteen feet in depth, to Sarah Strouse. By sundry mesne conveyances, title to the former became vested in the plaintiff, and, by like assurances, the title to the latter became vested in the defendant. Both houses were stone front, with wall of same material between them, and back building divided by a frame partition. In July, 1888, the defendant, being about to improve his lot by erecting thereon two brick buildings, in lieu of the old stone and frame building, was notified by the building inspectors that they had condemned the wooden partition or division between the old back buildings as insufficient for the building defendant was about to erect, and ordered the same to be taken down. Pursuant to that notice, he removed the frame partition or division wall and erected' in place thereof a nine-inch brick wall, which was afterwards approved by the building inspectors. He also utilized the old stone partition or division wall as a party wall. The trespass complained of is alleged to consist in using the old stone wall, taking down the wooden partition, and the careless manner in which the latter work was prosecuted.

It appears to be an undisputed fact that from the time the lots passed to different owners, in 1848, down to 1888, when the defendant commenced to rebuild, the respective owners and their tenants occupied their lots and houses, separated from each other only by the stone wall and wooden partition aforesaid. In view of that long-continued occupancy and possession' by the owners of the respective lots, it matters little whether the stone wall and wooden partition separating the two houses were exactly on the dividing line between the two lots or not. The uncontroverted evidence is that the owners of the houses and lots were each in the exclusive possession of their respective lots and houses long enough to give each, as against the other, an undisputed title by possession, and thus constitute the stone wall and wooden partition a party wall. In Western N. Bank’s App., 102 Pa. 171, it was held that a partition or wall erected and continuously used by adjoining owners for a period of twenty-one years, whether the same be erected equally on the lot of each party, or is wholly within the lot of one of the adjoining owners, is in the eyes of the law a party partition, or wall, and if condemned by the building inspectors, and removed, and another erected in its place, the party so removing the old and erecting the new wall is not guilty of trespass.

In his first point for charge, the defendant requested the court to say: “ If the jury find from the evidence that the house of defendant was built more than twenty-one years prior to June, 1888, the date of the alleged trespass, then the plaintiff is not entitled to recover for the use by defendant of the stone division wall between the plaintiff and defendant.” This point was refused, and in that we think there was error. The main fact of which the point was predicated was not seriously disputed, and the jury could not have found otherwise than that defendant’s house was built more than twenty-one years prior to the commission of the alleged trespass. The error was fundamental, and may have had a controlling effect in shaping the verdict.

The affirmance of defendant’s second point was so qualified as to depend on the finding of the jury that the wooden partition between plaintiff’s and defendant’s back buildings was in fact a division or party wall. As we have already seen, the undisputed evidence is that the partition in question was used for more than twenty-one years, prior to the commission of the alleged trespass, as a partition or division wall between-the two back buildings, and hence it should have been treated as a party wall. The point should have been affirmed without the qualification complained of in the sixth specification.

There was no error in admitting in evidence the plan referred to in the first specification. It was identified by the witness, and referred to in his testimony, and was properly admitted in connection therewith. Nor was there any error in the answer of the court to plaintiff’s fifth point recited in the fourth specification. The somewhat guarded affirmance of the point was warranted by the evidence. The remaining specifications are not sustained.

Judgment reversed, and a venire facias de novo awarded.