17 D.C. 580 (D.C.D.C. 1888), 10,971, Corcoran v. Nailor
|Docket Nº:||In Equity. 10,971.|
|Citation:||17 D.C. 580|
|Opinion Judge:||MR. JUSTICE JAMES:|
|Party Name:||PATRICK CORCORAN v. WASHINGTON NAILOR.|
|Attorney:||MR. R. ROSS PERRY, for plaintiff: MR. DANIEL O'C. CALLAHAN, for defendant:|
|Case Date:||November 05, 1888|
|Court:||Supreme Court of District of Columbia|
1. Under the building regulations existing in this District in 1887, a party wall cannot be erected with windows overlooking the servient land.
2. Where such a wall has been built and the servient owner has not been guilty of laches, equity will issue its mandatory injunction directing the closing up of the openings.
3. And the closing of such opening must not be done by mere patch work, but the filled up spaces must connect with the adjoining wall, so as to render such spaces suitable for support and for all the purposes contemplated by the right of joint use.
4. The fact that the dominant owner stands ready to fill up such opening whenever the servient owner desires to use the wall as a party wall, constitutes no defense, for such a wall not being within the meaning of the law a party wall, its erection creates an immediate and continuous trespass upon the adjoining owner's land for which no adequate relief can be had at law. No laches can be imputed to the adjoining owner where it appears that he protested against the erection of such a wall during its construction.
BILL for an injunction. Certified to the General Term for hearing in the first instance.
THE FACTS are stated in the opinion.
Adjoining owners own each to the center of a party wall, and are not tenants in common of the said wall. Watts vs. Hawkins, 5 Taunton 20; Washburn on Easements and Servitudes, p. 454.
Therefore it cannot be supposed that the law enables a man's own property to be converted into a weapon of offense against him.
Walls with windows or openings in them are not party walls. Sullivan vs. Graffert, 35 Iowa 531; Ingals vs. Plamandon, 75 Illinois 118; Brooks vs. Curtis, 50 N. Y., 639; Mendell vs. Delano, 7 Met. 176; Phillips vs. Boardman, 4 Allen 147; Hart vs. Rucker, 5 Serg. & R., 1; Vollmer's Appeals, 61 Penn. St., 118; Danenhower vs. Divine, 51 Tex. 480; 16 American Law Register, p. 12, note.
Mandatory injunction proper remedy. Phillips vs. Boardman, 4 Allen 147; Danenhower vs. Divine, 51 Tex. 480; High on Injunctions, secs. 332, 792, 852.
The building regulations did not authorize windows in party walls.
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