Barr v. LaMaster

• Decision Date: 21 April 1896
• Citation: 66 N.W. 1110,48 Neb. 114
• Parties: BARR v. LAMASTER.
• Court: Nebraska Supreme Court

48 Neb. 114

66 N.W. 1110

BARR

v.LAMASTER.

Supreme Court of Nebraska.

April 21, 1896.

Syllabus by the Court.

1. The right of partition, whether in equity or under the provisions of the Code, is confined to joint tenants and tenants in common of an estate in land. Hurste v. Hotaling, 29 N. W. 299, 20 Neb. 178

2. Adjoining lot owners in a city may by grant impose mutual and corresponding restrictions and conditions upon the land owned by each, the mutuality of the covenants in such case being a sufficient consideration for the respective grants.

3. Mutual covenants imposing such rights or restrictions will be construed as the grant of reciprocal easements, which may, when the remedy at law is insufficient, be enforced and protected by a court of equity.

4. The plaintiff and defendant, owners in severalty of adjoining lots, pursuant to a mutual agreement, erected thereon buildings corresponding in size, having the stairs, hallways, skylight, and heating apparatus in common. Held a grant to each of an easement in so much of the stairs, halls, and skylight as is situated upon the lot of the other; that the easement of each in the property of the other is owned in severalty, and the mere existence of such cross easements does not authorize the partition of said lots at the suit of either party.

Appeal from district court, Lancaster county; Hall, Judge.

Action by William Barr against Milton F. Lamaster. Defendant filed a cross petition, and plaintiff thereafter dismissed his petition. From a judgment for defendant on his cross petition, plaintiff appeals. Reversed and dismissed.Pound & Burr and Roscoe Pound, for appellant.

R. D. Stearns, J. H. Broady, E. H. Wooley, Cobb & Harvey, and E. J. Murfin, for appellee.

POST, C. J.

In the month of May, 1887, the plaintiff and defendant being the owners in severalty of adjoining inside lots in the city of Lincoln, and being desirous of improving the same, mutually agreed to so build thereon as to have the entrance, hallways, and skylight in common, thus saving valuable space to each. It was further agreed that the two buildings should be heated as one, and by means of a single furnace. Pursuant to such agreement, three-story brick buildings were erected on the lots mentioned, separated by a partition wall one story in height, the upper halls or courts being reached by a common stairway, and receiving light and ventilation from a common skylight, and each party paying one-half of the cost of the heating plant subsequently owned and used by them in common. This controversy was instituted by the plaintiff, Barr, in the month of January, 1892, who alleged, in the petition filed by him, in addition to the facts above stated, that the defendant, taking advantage of the common hallway, was destroying the value of his (plaintiff's) property by maintaining a nuisance therein, and by encouraging and permitting his (defendant's) tenants to harbor therein lewd and disreputable characters, etc. The prayer of the petition was for the appointment of a receiver to take charge of and lease the premises and to manage the heating apparatus therein; also, for a decree permitting the plaintiff to erect a partition wall upon his own premises, from the cellar to the roof of his said building, and to set aside and cancel the written agreements, three in number, under and by virtue of which the said buildings were constructed. An answer was in due time filed, in which, after setting out one of the several agreements relating to the buildings in controversy, it is alleged that said agreement remains in full force and effect, and expressly denying the plaintiff's right to erect a wall as prayed by him, and denying the jurisdiction of the court to award the relief sought. Accompanying the answer is a cross petition in the following language: “The defendant consents to the erection of a brick wall between the said lot of this defendant and the said lot of said plaintiff and that the heating fixtures, including the smokestack, furnace, boiler, pipes, and utensils, owned jointly by and between plaintiff and defendant be sold. Defendant insists that the court shall sell said joint property above mentioned and erect said brick wall, on the true line between the said lots, through the medium of a receiver or master commissioner or the proper officer appointed by the court for that purpose, and that such officer, by the aid of the county surveyor or other proper person, locate the true line between the said two lots prior to putting the said partition wall thereon; and defendant asks that said partition wall be built, through the entire length and height of said building. Defendant therefore prays for the sale of said joint heating fixtures, and the erection of said partition wall as aforesaid, and for judgment for damages as aforesaid, and for costs.” The agreement to which reference is made in the answer is as follows: “This agreement, made and entered into this 7th day of November, 1890, by and between William Barr and Milton F. Lamaster, witnesseth: That whereas, Milton F. Lamaster is owner of lot six (6), block fifty-eight (58), city of Lincoln, and William Barr is the owner of lot five (5), block fifty-eight (58), city of Lincoln; and whereas, said parties have erected a three-story building upon each of said lots; and whereas, the stairway and hall of the second and third floors are joined for the purpose of use and occupancy: It is therefore stipulated and agreed that the said hall and stairway shall always, during the existence of said buildings, be used and occupied by said parties jointly and severally. And it is further stipulated and agreed that the title to each party's lot shall not in any way or manner be affected by the use of said joint occupancy by the said parties hereto, and that said halls and stairways, being located equally upon said lots, are to be used jointly by the said parties, for the convenience of both of them, to the end that they may get a wider and more commodious hallway and stairway in said buildings; it being stipulated and agreed that the occupancy by one party of a portion of the other's lot shall not in any way affect or becloud the title of the other party. And it is further stipulated and agreed that said buildings shall be heated jointly, and each of the parties to this agreement to pay one-half of the expense for the same, whether the buildings or any portion of them are occupied or vacant; also, that each party is to pay one-half of all expense for repairs to heating apparatus. It is further stipulated that all the heating apparatus in the halls of said building, and boiler and all heating apparatus in the boiler room, is owned jointly by the parties hereto. It is further stipulated that the halls and stairway of said building shall be lighted jointly, and that each of the parties to this agreement pay one-half of the expense of lighting the same. Neither of said parties shall have the right to remove or appropriate to his own use any of the heating or lighting apparatus belonging to said building, or any other property or thing to said building belonging, or owned in common by the parties to this agreement. It is further stipulated that this agreement shall be and remain in force for the period of twenty years unless sooner canceled by the mutual consent of the parties hereto. Witness our hands this 7th day of November, A. D. 1890. [Signed] Wm. Barr. M. F. Lamaster. Witness, A. D. Burr.” In an amended and supplemental reply to the defendant's answer and cross bill, it is alleged that to erect a wall on the line between said buildings is wholly impracticable, since it would necessitate the...