207 Ill. 238 | Ill. | 1904
delivered the opinion of the court:
Appellant denies that appellee is the owner of complainant’s lot, for the reason that in the decree of foreclosure, instead of directing the master in chancery to make sale, and, after the expiration of the period of redemption, a deed, in the event that the debt was not paid and no redemption had, the court appointed Walter Butler a special commissioner to perform these duties, and the sale was made and the deed executed by him as commissioner, and for the further reason that there is no evidence in this record that the sale in foreclosure was ever approved by the circuit court. If either of these positions be correct appellant would be the owner of the freehold claimed by appellee, as appellant was the holder of the equity of redemption in the lot at'the time of the foreclosure. This, however, is in the nature of a collateral attack upon the decree of thé circuit court. Whether the powers conferred upon the special commissioner were beyond those which the court Could vest in such an officer is a question to be determined in a proceeding to review the decree in the foreclosure suit. So far as the absence of an order of confirmation is concerned, no such objection was made when the deed was offered. It cannot be urged- for the first time in this court,
It is then insisted that as this wall had been constructed more than six years prior to the beginning of this suit, complainant’s laches bars the relief sought, and that Darlington must have known at the time the wall was constructed that it was being constructed with openings, and that his silence then amounts to consenting that the wall should be so constructed. So far as the delay is concerned, it is apparent that when appellee received his deed Springer was asserting the right to use so much and such parts of complainant’s lot that appellee might well delay bringing any suit in reference to the party wall until he ascertained the extent of his interest in the property. The claims of appellant in that regard were Anally denied by this court in October, 1902, and this suit was begun the following month. We think reasonable diligence was exercised by appellee. When the wall was constructed appellant was the owner of the equity of redemption. If he paid the mortgage debt, as he had a right to do, his acts in constructing the wall with the openings in it could never have been questioned. He was building a wall on his own land. The doctrine of estoppel does not apply.
Other objections urged to the decree are, that appellee had an adequate remedy at law; that the injunction is not preventive in its character, and therefore is beyond the power of a court of equity; that Springer is the owner of the entire wall until he is paid for one-half, and that the decree is therefore wrong in permitting any interference therewith until Springer shall have been paid one-half the value of the wall as it now stands; that no wrong is now threatened by appellant, and that the wrong, if any, has been long since indicted, and the court is powerless to forbid the doing of an act already done; that to permit appellee to re-build the wall in the manner authorized by the decree is to take the possession of appellant’s property from him and place such possession in the hands of appellee, and that no injury is shown to appellee, for the reason that he does not aver or show that he intends to erect a building on this.lot.
The law in reference to party walls, as gathered from the’ decisions of the States of the Union, is clear and well defined. Where parties contract with each other for the maintenance of a party wall, a wall solid throughout its entire length and heig'ht is contemplated, unless the contract otherwise .provides. The reason for this is obvious. Each party is the owner of that part of the wall which stands on his own land, subject to the easement of the other. This easement is the right of each to have his building supported by the portion of the wall which stands on the land of the other. This easement is to have' the support of a wall—not of a wall weakened by such openings therein as the other party may see fit. to make. If one party has a right to place openings in a wall, so has the other, and the exercise of such rights would lead to the loss of all benefit which should be derived from a party-wall contract. 22 Am. & Eng. Ency. of Law, (2d ed.) p. 246; Sullivan v. Graffort, 35 Iowa, 531; Normille v. Gill, 157 Mass. 427; Harber v. Evans, 101 Mo. 661; Weems v. Mayfield, 75 Miss. 287; Traute v. White, 46 N. J. Eq. 437; Vollmer's Appeal, 61 Pa. St. 118; Milne’s Appeal, 81 id. 54; Bloch v. Isham, 28 Ind. 37; Graves v. Smith, 87 Ala. 450; Dauenhauer v. Devine, 51 Texas, 480; Cutting v. Stokes, 76 Hun, 376.
Appellant, in constructing the wall in the manner in which he did, violated the rights of appellee under the party-wall contract. Nor does it answer to say that appellee shall have no relief until he pays one-half the expense of the wall constructed. In the first place, it includes a part of the old wall and is constructed on the old foundation, one-half of which was paid for by Lehman, to whose rights appellee has succeeded. In the next place, to require appellee to pay one-half of the expense of such a wall as is now built between the parties is to require him to pay for a structure erected, not in accordance with the contract he made, but in accordanee with the desire and to answer the purposes of the appellant alone. It is true, it does not appear what character of building, if any, will be erected on the complainant’s lot. That is a matter of indifference. Appellee’s right is to have a compliance with the terms of the contract. It is not for appellant to say he will not comply because Darlington does not inten d to use the property in a certain way. This wall, built where it is, in the manner it is built, necessarily depreciates the value of appellee’s property. It is a private nuisance of a continuing character. No excuse whatever is offered for causing the caps and bases of the windows to project beyond the wall. A wall built on this foundation in accordance with the terms of the contract would add to the value of the property. Darlington is entitled to have the aid of equity to place the wall in the condition the contract required it should be. No other remedy is adequate. To compel him to resort to a suit for damages is to say that he shall be deprived of his real property without his consent by a private individual and must be content with such compensation as a jury will give him. Appellant does not possess the power of eminent domain. Appellee had, and has, the same right to build a wall on this foundation that appellant possessed, consequently there is no merit in the contention that the decree wrongfully deprives appellant of the possession of his own property.
In Corcoran v. Nailor, 6 Mackey, (D. C.) 580, it was said: “It is no answer to say that the dominant owner stands ready to fill up the openings whenever the servient owner desires to use the wall as a party wall. That very statement admits that it had not meantime been a party 'wall, and the servitude only renders lawful, occupation by an actual party wall. The occupation meantime by what is not a party wall is not the enjoyment of an easement, but is simply a trespass. * * * The injured party is entitled, therefore, to a discontinuance of the injury, and he is entitled to relief in equity. An action of ejectment would be an inadequate remedy, for after recovery he would be at the cost and trouble of removing so much of the wall as stood on his land or filling up the openings. So, too, repeated actions of trespass would be an inadequate remedy. We repeat, therefore, that the complainant is entitled to relief in equity. He has a clear right to require that this illegal structure shall be conformed to the law authorizing party walls, and this can be done only by closing these openings, and by doing so in such manner as shall render the filled-up spaces suitable for support and for all the purposes contemplated by the right of joint use. The brickwork used in closing the openings should not be a mere patch, but should connect "with the adjoining wall in th.e usual manner of a continuous wall. To this end a mandatory injunction is the proper remedy.'—See High on Injunctions, secs. 332, 792, 852; Phillips v. Boardman, 4 Allen, 147; Dauenhauer v. Devine, 51 Texas, 480; Sullivan v. Graffort, 35 Iowa, 531.”
In Harber v. Evans, supra, it was said: “Another objection raised to the validity of the ruling below is, that the petition does not allege that the plaintiff ever intends to use the party wall. This is true; but there are several answers to that objection. Whether plaintiff intended to use the wall or not is quite immaterial, since, under the contract, he had acquired a valuable right which was the subject of sale and transfer, which right was worthy of protection, and should be protected by a court of equity.”
The views expressed in the Corcoran case and in the Harder case find support in the following decisions: Everly v. Driskill, 24 Tex. Civ. App. 413; DeBaun v. Moore, 32 N. Y. App. Div. 397; Bartley v. Spaulding, 21 D. C. 47; St. John v. Sweeney, 59 How. Pr. 175; Vansyckel v. Tryon, 6 Phila. 401; Sullivan v. Graffort, supra; Vollmer’s Appeal, supra.
The relief granted in Corcoran v. Nailor, supra, and in Bartley v. Spaulding, supra, was of the same character as that decreed in the case at bar. We regard the remedy here awarded as appropriate and fully warranted by precedent.
The decree of the superior court will be affirmed.
Decree affirmed.