170 F.2d 381 (7th Cir. 1948), 9654, Carley v. Lawrence

Docket Nº:9654.
Citation:170 F.2d 381
Party Name:CARLEY v. LAWRENCE et al.
Case Date:October 22, 1948
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 381

170 F.2d 381 (7th Cir. 1948)

CARLEY

v.

LAWRENCE et al.

No. 9654.

United States Court of Appeals, Seventh Circuit.

October 22, 1948

Rehearing Denied Nov. 13, 1948.

Roland Obenchain, of South Bend, Ind., Charles E. Yarlott, of Logansport, Ind., and Clinton S. Courson, of Dayton, Ohio, and E. H. & W. B. Turner, of Dayton, Ohio, for appellant.

Albert H. Cole and Albert H. Cole, Jr., both of Peru, Ind., for appellees.

Before KERNER and MINTON, Circuit Judges, and BRIGGLE, District Judge.

KERNER, Circuit Judge.

Plaintiff appealed from certain paragraphs of a decree which determined the rights of adjoining owners of tenements in the City of Logansport, Indiana. Federal jurisdiction is founded upon diversity of citizenship and an apparent requisite amount in controversy. The trial judge made the necessary findings of fact and conclusions of law from which a decree in accord with was drawn.

The complaint alleged that for a period of more than thirty years plaintiff was the owner in fee simple of a parcel of land in the City of Logansport, the west boundary of which was identical with the east boundary of a parcel owned by defendant Lawrence; that for some sixty-two years, until 1942, a three-story, and then shortly after erection a four-story, building stood entirely on plaintiff's lot; that in 1942, in accordance

Page 382

with an order of the State Fire Marshall, plaintiff removed the top three stories of her building and repaired the first story; that as part of the demolition she removed the fourth story of the wall and recapped the third story; that Lawrence acquired his lot in 1943 after the partial demolition of plaintiff's building; that since 1885 there has been situated on his lot a three-story building which still stands; that no east wall was ever built for this building; that the east ends of the joists of this building were placed and still remain in plaintiff's west wall; that no written agreement relative to the use of this wall appears in the public records of the county; that plaintiff of her own knowledge does not know whether there ever existed any agreement, either written or oral, concerning the use of the wall in question; that the wall in question is in a bad state of repair and unsafe for the support of Lawrence's building; that in 1946, after the partial demolition, Lawrence, without notice to or consent of plaintiff, cut three large openings in the wall and installed three windows therein; and that this construction caused damage to plaintiff's roof and further weakened the wall.

The complaint prayed that the court determine the rights of the parties and declare that the wall in question is not a party wall; that what right Lawrence had, is by prescriptive easement; that the prescriptive easement of support has ended by reason of the unsafe condition of the wall; and that plaintiff has the right to demolish it after the giving of reasonable notice to Lawrence. Certain other parties, a tenant in possession of the Lawrence building, the mayor of the City of Logansport, and the individual members of the Administration Building Council of Indiana, were made party defendants. The complaint was later dismissed as to members of the...

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