30 Pa. 375 | Pa. | 1858
The opinion of the court was delivered by
— A right to a party-wall, is a right which an owner of land has to build a division-wall partly over his line on the land of another. It is therefore a right appurtenant to land, and may properly be called an easement or servitude. In Philadelphia, this relation between adjoiners is regulated by statute. He that first builds on his line must erect the wall at his own expense, and it is then, as one whole wall, an essential part of his house, and is therefore real estate. Yet half of it rests on his neighbour’s land, which is charged with a servitude for this purpose.
The owner of the house has no charge against anybody for the half thus built on his neighbour’s land; but the wall is his own, and the neighbour cannot use it without paying for so much' of it as he intends to use; and, on paying, he may use it, and then the wall becomes a common wall, and each lot becomes appurtenant to the other so far as needed for its support. The owner of the wall has, therefore, a contingent claim against the adjoining lot-owner that he shall pay for his share of the wall before using it, though it is half on his own ground. The price to be paid is, consequently, a fixed lien on the lot, to be enforced by restraining the full use of it until the wall is paid for: 8 S. & R. 59; Smith's Ex. Int. § 74.
Such a party-wall is essentially inalienable, except to the adjoining owner. But the law, by a somewhat anomalous yet practical accommodation, allows the mechanic who builds the wall to make an agreement to look to the adjoiner for the half value of it. He, therefore, retains a lien on the land for so much. But still the lien is an incident of the wall, and the wall is part of the house; and, therefore, to all appearance, the lien belongs to the owner of the house, and passes on a sale of the house, or may be bought from the owner by the adjoiner, so as to extinquish the builder’s lien. The owner may, therefore, be called, according to the analogies of the law, a trustee of the lien for the builder; and a purchaser from him, without legal notice, will take the title to the wall, discharged from the builder’s claim. A purchaser, with notice, according to the same analogies, becomes trustee instead of the original owner. If the trustee sells the house, without
It seems to us that the action of assumpsit is a very proper remedy for such a case, and we do not see that the count for money had and received was inappropriate to the facts of this case. The verdict of the jury seems to be about equal to the half value of the wall, though it was riot yet used by the adjoiner, and this seems unjust; yet we do not see that any instructions were prayed for or given in the court below on this subject, and1 we must presume that the plaintiff’s right was valued with reference to the contingency on which it depended. If the wall was likely to be used the next season, he might get nearly its full value.
It seems to us that the views are a full answer to all the exceptions to both the evidence and the charge, and shows that the case is without error in matter of law.
Judgment affirmed.