Bean v. Dow

• Decision Date: 02 December 1930
• Citation: 152 A. 609
• Parties: BEAN v. DOW.
• Court: New Hampshire Supreme Court

152 A. 609

BEAN

v. DOW.

Supreme Court of New Hampshire. Strafford County.

Dec. 2, 1930.

Transferred from Superior Court, Strafford County.

Trespass and case by Ida B. Bean against Henry K. Dow. Verdict for plaintiff. Case transferred.

Verdict set aside.

Trespass and case, to recover damages for the defendant's removal of a building upon his land, whereby the plaintiff's building was left with one end open. Trial by jury, and verdict for the plaintiff.

The evidence tended to prove the following facts: Both properties abut on a business street in Rochester, and were formerly owned by one Hussey, who first erected on what is now the defendant's land a two-story wooden business building, now used by the defendant as a printing office. Later, Hussey erected an ell to a house on what is now the plaintiff's land. He built a foundation under each corner of the ell, and supported the entire structure thereby, except that one small timber was spiked to the outside of the printing office wall. He also nailed some strap furring to that wall, in places, and attached thereto sheathing for a washroom, and lath and plaster for two closets. He thereafter sold the printing office property to the defendant, and bounded it by a line running from point to point along the outside of the wall first mentioned. The deed contained the usual covenants of warranty against incumbrances, and no reservations. Still later, Hussey conveyed the premises, including the ell, to the plaintiff.

After both lots had been conveyed, the defendant, desiring to erect a brick building, separated the wooden one from the plaintiff's ell. He shored up the small sill, which had been spiked to his wall, but the lath and plaster in the closets and the sheathing in the washroom came away on his wall, leaving the end of the plaintiff's ell open.

Subject to exception, the court left it to the jury to find whether there was a party wall, and instructed them that if they found that there was one, and that the defendant so dealt with it as to render it insufficient to support the plaintiff's building, their verdict would be for her.

Transferred by Young, J.

Samuel D. Felker, of Rochester, and Everett J. Galloway, of Dover (Mr. Galloway orally), for plaintiff.

Conrad E. Snow and Thornton Lorimer, both of Rochester (Mr. Snow orally), for defendant.

PEASLEE, C. J.

A right of the plaintiff to use the defendant's wall, and to insist that it remain in place so that she could use it, must rest in some agreement of the owners of the respective premises. Everett v. Edwards, 149 Mass. 588, 22 N. E. 52, 5 L. R. A. 110, 14 Am. St. Rep. 462; 20 R. C. L. 1084. Such agreement is sought to be implied from the situation existing when the common owner conveyed the printing office to the defendant. The claim of the plaintiff is that because of that situation this structure became a party wall when the titles to the two buildings were severed.

One distinctive feature of a party wall is thai the adjacent buildings are so constructed that each derives its support from the common wall. There was no such condition here. Each building rested upon its separate foundation. Structurally, the plaintiff's building was independent of the defendant's wall, save as to one small timber. The use made of the defendant's. wall by the plaintiff was to inclose the open space at the end of her building, and to it there was attached the finish of two closets and a washroom.

While this did not constitute a party wall, as that term is ordinarily used, it might create an easement of similar character, though of less extent. The theory that the acts of the parties show an intent to grant or reserve certain rights openly exercised at the time the title is severed is capable of application to a great variety of situations.

The real issue is: What should the parties to such a transaction as the conveyance from Hussey to Dow understand? Would they understand that Dow was obliged to maintain his wall as it then existed, so that Hussey would thereby have the end of his building inclosed and convenient support furnished for his interior finish? Would the thought be that Hussey had no right, or would they contemplate a middle ground?

The location was on a business street, where changes and improvements would naturally be expected. Hussey's use of the wall was not essential to the maintenance of his building, but incidental only. In such a situation, one fair inference as to the intention of the parties would be that they contemplated a continuance of present conditions without complaint by Dow, so long as he permitted his building to stand as it was; but that he was at liberty to make changes when he chose to do so, using due care and doing no unnecessary harm to Hussey's building. Whyte v. Builders' League, 164 N. Y. 429, 58 N. E. 517; Cherry v. Brizzolara, 89 Ark. 309, 116 S. W. 668, 21 L. R. A. (N. S.) 508.

And that would be the rule if the situation were to be treated as creating a party wall. In seeking the origin and nature of rights respecting such structures, it has been stated that the law upon the subject is an extension of that relating to the right of lateral support of soil in its natural condition. Union etc., Bank v. Nesmith, 238 Mass. 247, 130 N. E. 251. From this it is argued that the right of party wall support is absolute. But it is manifest that the analogy is not perfect, and the comparison breaks down where differences occur. The state of the soil is natural; the party wall is artificial. The former is permanent, the latter in some degree temporary. Being artificial and temporary, the correlative attributes assigned to it by the law should be limited to the evident design of its joint creators. That is, the doctrine of reasonableness should control, in the absence of express agreement. "* * * the rights of the owners in it are found in their presumed intention in the mutual grant of a party-wall, rather than by classifying it with other estates, and deducing its qualities from the name given to it" Everett v. Edwards, 149 Mass. 588, 22 N. E. 52, 53, 5 L. K. A. 110, 14 Am. St. Rep. 462.

Neither abutter is deprived of the right to improve his property. He may add to his old wall and build new doing no unnecessary damage. Matthews v. Dixey, 149 Mass. 595, 22 N. E. 61, 5 L. R. A. 102. So if it be out of repair, he may rebuild the whole. Partridge v. Gilbert, 15 N. Y. 601, 69 Am. Dec. 632; Campbell v. Mesier, 4 Johns. Ch. (N. Y.) 334, 8 Am. Dec. 570; Gage v. Gage, 66 N. H. 282, 285, 29 A. 543, 28 L. R. A. 829. While cases are to be found restricting such rights, denying the authority to rebuild or making the actor responsible for all damage or resulting loss, whether caused by negligence or not, it appears to us that they are not founded in reason.

But whatever the true rule may be as to a party wall standing upon the land of both owners, and made such in perpetuity by the deeds of the parties, implied grants cannot be extended beyond that which is in fact reasonable. And since the plaintiff's rights here Involved are all implied, they are of necessity limited by the bounds of reason. The rights asserted depend upon the surrounding circumstances, and modern conditions and ways of doing business are entitled to consideration. Hieatt v. Morris, 10 Ohio St. 523, 78 Am. Dec. 280.

While there is a difference among the authorities as to the nature of the rights respecting a party wall, the true theory appears to be that the right of each in that part upon the property of the other is an...