Quinn v. Morse

130 Mass. 317 | Mass. | 1881

Gray, C. J.

By the laws of the Colony and Province it was enacted that any one building on his own land in Boston might set half his partition wall on his neighbor’s land, and that the neighbor, when he should build, should pay for half of so much of the wall as he should build against. Col. St. February 13, 1683-4; 5 Mass. Col. Rec. 432. Prov. St. 1692-3 (4 W. & M.) c. 13; 1 Prov. Laws (State ed.) 42." This provision does not appear to have been repealed, although other sections of the Province law have been modified or superseded by later statutes. Prov. St. 1699-1700 (12 W. III.) c. 24; 1 Prov. Laws, 404. Prov. Sts. 1760-1 (33 G. II.) c. 9; 1760-1 (1 G. III.) c. 32; 1763-4 (4 G. III.) c. 31; 4 Prov. Laws, 378, 431, 686. Sts. 1796, cc. 88, 94; 1798, c. 23; 1802, c. 58; 1810, c. 21; 1817, cc. 119, 171; 1826, c. 144; 1835, c. 139; 1871, c. 280; 1872, cc. 260, 371; 1873, c. 298. See also Brooks v. Curtis, 50 N. Y. 639; Vollmer’s Appeal, 61 Penn. St. 118; 7 Am. Law Reg. (N. S.) 10-14.

But it is unnecessary, for the purposes of this case, to determine what would have been the rights of the parties in the absence of any contract between them; because the plaintiff’s understanding and intention that both the wall at the side and the wall at the rear end of his lot should be party walls, which the defendant Morse should have the right to carry up in building his store or warehouse, is clearly manifested by the instruments signed and sealed by himself.

As to the side wall. In the agreement for the sale by the plaintiff to Hobbs of the adjoining lot, it was covenanted that Hobbs should pay to the plaintiff, for the half of the wall then standing on that lot such sum as arbitrators should determine it to be “ worth to said Hobbs in building a store on said land.” Hobbs assigned the agreement to Morse; and the plaintiff conveyed that lot to Morse, describing it as bounded “ northeasterly by other land of said grantor through the centre of the brick partition wall.” Pursuant to the agreement between the plaintiff and Hobbs, arbitrators were appointed by the plaintiff and Morse, and awarded the sum to be paid by Morse to the plaintiff for the half of “ the party wall,” which they further described in their award as owned by Quinn and by Morse, assignee of the agreement with Hobbs. Morse paid that sum to the plaintiff ; and the plaintiff, by formal release, referring to his agreement with Hobbs, acknowledged himself to have received that sum of Morse “ in full for the brick wall and all claims for or on account of walls in said agreement mentioned.”

As to the rear wall. In the agreement of the plaintiff with Hobbs it was covenanted that the purchaser might build a parti tian wall on the rear end of the plaintiff’s lot, half on the land of the plaintiff and half on the land of the purchaser; that the purchaser should put the plaintiff’s rear wall in as good condition-as it then was, and pay all damages, if any, to the plaintiff’s house; that the plaintiff should not be liable to pay for the half of the wall on his land until used by him or his representatives ; and that “ one rear wall is hereafter to be partition wall for the use of both parties in common, their heirs and assigns.” After Morse had become the owner of the lot in the rear of the plaintiff’s lot, the plaintiff, in his aforesaid release to Morse, referring to the agreement with Hobbs, and acknowledging payment in full for “ all claims for or on account of walls in said agreement mentioned,” released to Morse, his heirs and assigns, “ all the lot or strip of land, if any there be, which lies northwesterly of a line drawn through the centre of the wall built by said Morse across the rear of my homestead lot, so that the division line between our respective estates shall be through the centre of said wall.”

In Sanborn v. Rice, 129 Mass. 387, cited for the plaintiff, so much of the wall as was carried up by the defendant on the plaintiff’s land was not as wide as the original wall, nor was its face, toward the plaintiff’s land, parallel with the centre line of that wall; and the defendant did not rely on any right to carry up a party wall upon the plaintiff’s land, but on the plaintiff’s want of title in the land itself.

As to the thickness of the walls which the defendants are building, no question appears to have been made at the hearing below, or is reserved by the report.

Bill dismissed, with costs.