34 Iowa 67 | Iowa | 1871
From the statement of facts it will be seen that plaintiff is the owner of the third story of the building, and defendant owns the two remaining stories and the ground upon which the erection stands. Although this mode of ownership is not at all unusual in large cities, yet the common law does not clearly define the relative rights and duties of persons so situated. 2 Washb. on Real Estate (2d ed.), marg. p. 79. Tet enough has been decided to render easy the determination of the question here involved.
In Tenant v. Goldwin, 2 Ld. Raym. 1091, it is said that if one man have the upper part of a house and the other the lower, each may compel the other to repair his part in preservation of the others. In an anonymous case in 11 Modern, page 7, it is held, that if a man has an upper room, an action lies against him by one who has an under room, to compel him to repair his roof. And so where a man has a ground room those over him may have an action to compel him to keep up and maintain his foundation.
In Cheeseborough v. Greene, 10 Conn. 318, which was a case in which the plaintiff owned and occupied the foundation and first and second stories of a building, and the defendant owned the third story and roof of the same building, and suffered the roof to become leaky and ruinous, occasioning damage to the plaintiff’s goods in the lower story, it was held that an action on the case would not lie, but that the plaintiff’s remedy must be sought in chancery. In Loring v. Bacon, 4 Mass. 575, the defendant was seized in fee simple of a room on the lower floor of a dwelling-house and of the cellar under it, and the plaintiff
And that, in legal contemplation, each party is the owner of a distinct dwelling cannot, in our opinion, be successfully refuted.
Reversed.