Croasdale v. Lanigan

• Decision Date: 20 January 1892
• Citation: 29 N.E. 824,129 N.Y. 604
• Parties: CROASDALE v. LANIGAN.
• Court: New York Court of Appeals Court of Appeals

129 N.Y. 604

29 N.E. 824

CROASDALE

v.LANIGAN.

Court of Appeals of New York.

Jan. 20, 1892.

Appeal from supreme court, general term, fourth department.

Action by Robert Croasdale against Daniel M. Lanigan to restrain defendant from tearing down a retaining wall erected by plaintiff on defendant's land under a verbal license. Defendant appeals from a judgment affirming a judgment for plaintiff. Reversed.

Lawrence T. Jones, for appellant.

M. M. Waters, for respondent.

ANDREWS, J.

This case presents a question of importance, from the principle involved, although the particular interest affected by the decision is not large. The action was brought to obtain equitable relief by injunction to restrain the defendant from tearing down a stone-wall erected on the defendant's land by the plaintiff under an alleged parol license from the defendant, and in the erection of which the plaintiff expended in labor and materials a sum exceeding $100. The parties are the owners of adjoining lots fronting upon a public street. The plaintiff's lot is west of the lot of the defendant. The land, in its natural state, descended towards the east. In 1886 the plaintiff graded his lot, and in so doing raised an embankment several feet high along his eastern line, adjacent to the lot of the defendant, and erected a house on his lot. In 1887 the defendant graded his lot, and in so doing excavated the earth up to his west line, adjacent to the embankment on the plaintiff's lot, to the depth of four or mere feet, thereby removing the natural support to the lot of the plaintiff as it was in its original state. Before the defendant had completed his excavation the parties had an interview, and the question of the support of the plaintiff's embankment arose. The plaintiff claimed that the defendant was bound to build a wall where his excavation was. The defendant denied his obligation to do so, and referred to the fact that the plaintiff had raised his land several feet higher than it was in its natural state. The plaintiff wanted the defendant to sell him two feet of his land to build a wall upon, which the defendant declined to do. Both parties agree that the wall was spoken of. The plaintiff testified that nothing was said between them as to what kind of a wall the plaintiff would build, nor as to its height, dimensions, or quality. The defendant, on the other hand, testified that the plaintiff stated he would build a wall laid up in mortar, pointed on the side facing the defendant's (proposed) house, and cement it on top with Portland cement. Some days after the interview, and on the 13th day of April, 1887, the defendant addressed a letter to the plaintiff, in which, after referring to their previous interview, he said: ‘While perfectly satisfied that I am justified in grading my lot as far as I have done, and that, if at any time your embankment should topple over on my land, that I could claim damages, yet perhaps I was a little hasty and somewhat unreasonable with you the other night; and, although I came away fully determined to stand on my rights, and keep every inch of ground that belonged to me, since then I have thought the matter over seriously,-put myself in your place, so to speak,-and decided to give you two feet asked for, to build your wall on.’ The plaintiff on the same day replied in writing, saying: ‘I will be glad to accept your offer in the spirit in which it was given, and thus end a disagreement, &c. I expect to go to work immediately to build the wall, and will go as far into my bank as is consistent with its safety. I will also modify as much as I can the grade of the bank along the side and the front.’ The plaintiff thereupon proceeded to build a wall on the defendant's land, the building of which occupied four or five days. He first made a contract with a mason to build a mortared wall, and lime and sand were drawn upon the place to be used therefor. But for some reason he changed his mind, and he built the wall of ‘flat, ordinary building stone, not hewn into shape, and not packed into regular courses, nor dressed at all,’ and without mortar or cement. The wall was 90 feet in length, 2 feet or less in width, and 4 to 6 feet high. It does not appear that the defendant saw the wall during the course of its construction, except that he was upon the lot on one occasion when the foundation was being laid; nor does it appear that he knew that the wall was to be laid up loose, or at any time consented to the erection of such a wall as was constructed. Within two weeks after the wall was completed, he notified the attorney for the plaintiff, who at the request of his client had written him, demanding a deed of the two feet, that be had not agreed to give a deed, and that the wall...