280 Pa. 483 | Pa. | 1924
Opinion by
One of the defendants is the owner of a property on the corner of Twentieth and Chestnut Streets in the City of Philadelphia, designated as No. 1939. The plaintiff owns the adjoining lot, No. 1937, and both extend through to Ranstead Street, a distance of about 158 feet. On each parcel was erected a four-story dwelling, which, for the first 63 feet 3 inches, were separated by a party wall, and the remaining distance of 94 feet 9 inches divided by a line fence. The owner of the corner property, defendant here, tore down her building, but not the party wall then in place, and began the erection of an eight-story structure, planned to have 50 windows, overlooking the property of plaintiff to the east. As the cellar of the new building extended below that of the old, the owner, through her contractor, also a defendant, made excavations below the 18-inch foundation of the portion occupied in the front, and built there a sub-base of stone, the only purpose being to uphold the old construction, which might have settled or fallen but for the new support thus given to it. Entirely within her own line a steel framework was installed, not resting upon the party wall, but continuing upward, on its own base, beyond the top of the original partition, about an inch west from the di
From the end of the old party wall to Banstead Street, stone was used to the level of that highway, which is approximately forty inches below the surface of the lot. Brick was laid on it, slightly less in width, to the height of plaintiff’s property. On this a still narrower row of like material was placed to the first floor of the new building, about one inch back of the line, and entirely on defendant’s land. Steel columns rested on the footings thus built, intended to bear the weight of the new structure. In order to make room for this work, with the necessary openings or recesses, excavations were made in the party wall foundations, and the space between afterwards filled with concrete, or other material, though the framework does not depend on this for its support. From the surface to the top in front, it is also sealed to prevent deterioration as a result of weather conditions, but this filling does not sustain the building, of which complaint is now made. Windows were opened, or are proposed to be, in the new wall, which, as noted, adjoins the property of plaintiff, and it was to restrain this action that the present bill was filed.
The foregoing facts were established either by admission or proof, and it will be observed that, so far as they relate to the old party wall, and the work done under and in connection with it, they are the same as existed in Hayes v. The Arcade Real Estate Co., 257 Pa. 566, followed by the court below in its decision in the instant case. It is not necessary to repeat what was there said; it suffices to remark that the effect is to affirm the decree so far as it refers to the front 63 feet 3 inches.
Whenever, as here, a landowner goes upon the land of another, and exercises his right to construct a party wall, he is bound by the statutory regulations as to the manner of its erection, and assumes the responsibilities which thereby arise. He is not liable where a trespass is unintentionally committed (Pile v. Pedrick, 167 Pa. 296), or where the encroachment, improperly made, is removed on notice: Benner v. Cassatt, 236 Pa. 248. If, however, land is taken for such purpose, even though the wall rises no higher than the foundation, or the level of the ground, he must comply with the provisions of the acts of assembly which give to him the unusual privilege of occupying the land of another without the latter’s consent. As was said by Chief Justice Mitchell, in
It is insisted in this case that the building of the foundation, — a continuation of the party wall to the rear of the lot, — was not to be treated as such, since the weight of the building did not rest thereon. This proposition is answered by Milne’s App., supra, where the court said, “If the builder starts the latter [the wall] upon the line and thus takes the land of the adjoining owner, he must carry it up strictly as a party wall, or at least in such manner as to give the adjoining owner all the benefits of such a wall. Otherwise the land of the latter would be taken without any corresponding benefits.” And the same principle was recognized in Western National Bank’s App., 102 Pa. 171. Though the rear of the new building here in question may depend for its physical support on the steel construction, without necessity of relying on the stone base, yet the facts clearly show that the defendant occupied a portion of plaintiff’s land, and built the foundation as a party wall. It follows that an injunction should be granted restraining the respondents from maintaining windows, or other openings, in that part of the structure, and, if such have already been made, that they be closed.
The decree is reversed at the cost of appellee, and the court below is directed to enter an appropriate order, as indicated by this opinion, directing defendants to per