23 Minn. 34 | Minn. | 1876
In August, 1872, the owners of a lot in St. Paul leased the same to the plaintiffs for a term of twenty years, to commence May 1, 1873. The leased lot adjoined, on the west, a lot owned by Brown. On January 28,1873, the plaintiffs, being about to erect a brick store on the
The plaintiffs proceeded to erect the Avail, and completed the same by June 10, 1873. The defendant claims that they did not construct the wall in compliance Avith the
Early in June, 1873, the defendant, Rogers, entered into a written contract with Brown for the purchase of his lot, and, in August, 1873, Brown conveyed the saíne to him, with full covenants of warranty and seizin. Aside from the effect of the wall itself as notice to Rogers, the evidence in the case tended to show that, before he contracted for the lot, he received actual and express notice of the agreement between Brown and the plaintiffs. Shortly after receiving the conveyance from Brown, Rogers erected a brick building upon the lot' purchased by him, using the wall in question as the easterly wall thereof. The question in the case is whether the plaintiffs can recover of Rogers one-half of the cost of the wall.
The agreement between plaintiffs and Brown, “that the centre of the westerly wall of the building * * to be erected (by plaintiffs) shall be the dividing line” between the leasehold premises and Brown’s adjoining lot, must be taken to be an agreement that the centre of the wall should be placed upon such dividing line. This confers upon the plaintiffs the right to erect the westerly half of the wall upon Brown’s lot. Taking this in connection with the further provision that the wall, when constructed, “shall be and remain a party-wall between the parties of the first and second part, their heirs and assigns, forever,” the evident result is that the plaintiffs acquired in Brown’s lot a right of support for the westerly half of the westerly wall of their building — a right which might continue during their term, at least. This right of suppoi’t is a right to use so much of Brown’s lot as is covered by the -wall, for the purpose of support. It is, therefore, an easement, which has been defined “to consist of a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose, not inconsistent with
As the easement which the plaintiffs acquired is an interest in real estate, the instrument through which they acquired it — i. <?., the agreement with Brown — is, by the express definition found in Gen. St. c. 40, § 26, a “conveyance,” as the word is used in that chapter. By section (3 of such chapter it is enacted that “ no covenant shall be implied in any conveyance or mortgage of real estate, whether such conveyance contains special covenants or not.” In this case it will be observed that the agreement mentioned contains no express covenant upon the part of Brown, his heirs or assigns, to pay for any part of the party-wall. As none can be implied, it is at once apparent that the question mainly discussed at bar, viz., whether Rogers was liable to the plaintiffs for one-half the cost of the wall, upon a covenant running with the land which he purchased of Brown, cannot arise in this case.
This action having been dismissed by the court below, upon the ground that the plaintiffs had failed to establish their claim to recover of the defendant, it is to be assumed that the testimony introduced by plaintiffs proved all that it tended to prove. It is, therefore, to be assumed, upon the evidence before mentioned, that the defendant had notice of the plaintiffs’ easement in the Brown lot, and of the plaintiffs’ rights in respect to the same. From this assumption it would follow that the defendant took the Brown lot subject to the easement and to the plaintiffs’ rights respecting it. Among the latter was the right to insist that, whenever Brown, his heirs or assigns, should desire to use the party-wall, they should pay the plaintiffs, their heirs or assigns, one-half part of the actual cost.
It is argued by the defendant that the plaintiffs cannot recover, because they did not construct the wall according to the agreement with Brown. This has reference to the fact that there were two windows in the wall, and to the failure to leave the proper number of places for joist. It does not appear that any objection Ayas made to the windows. As respects the places for joist, the agreement is ‘ ‘ to leave proper openings in said Avail for the use of the said party of the second part.” It appears that, so far as the stone portion of the Avail was concerned, “joist-holes Avere left,” but, for the purpose of making a better Avail, filled up with stones that could easily be found and removed. In the brick portion of the Avail it appears that no joist-holes were left; but, as brick could be easily remoAred, wherever and whenever necessary, we are not able to say that this was not a sufficient compliance with the agreement to leave proper openings. Besides, it does not appear that any objection was made, by defendant, to the want of sufficient joist-holes, until after he had used the wall. And, irrespective of these considerations, we are of opinion that, if the defendant used the- Avail, he could not set up the plaintiffs’ alleged failure to construct it according to the precise terms of the agreement in bar of a recovery. His remedy (if any) in the premises would be by recoupment.
Order reversed.