Blackmer v. Montcalm County Bd. of Com'rs, Docket No. 91707

• Decision Date: 08 July 1987
• Docket Number: Docket No. 91707
• Citation: 160 Mich.App. 323,407 N.W.2d 646
• Parties: Richard BLACKMER, Plaintiff-Appellant, v. MONTCALM COUNTY BOARD OF COMMISSIONERS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 646

407 N.W.2d 646

160 Mich.App. 323

Richard BLACKMER, Plaintiff-Appellant, v. MONTCALM COUNTY BOARD OF COMMISSIONERS, Defendant-Appellee.

Docket No. 91707.

Court of Appeals of Michigan.

Submitted Jan. 6, 1987.

Decided May 18, 1987.

Released for Publication July 8, 1987.

Dunnings & Frawley, P.C. by Stuart J. Dunnings, III, Lansing, for plaintiff-appellant.

Before MacKENZIE, P.J., and WEAVER and ROBERTS, ^* JJ.

PER CURIAM.

Plaintiff, Richard Blackmer, appeals from an order of summary disposition which dismissed his claims of negligence and abuse of process. Plaintiff has conceded that there is no merit to his abuse of process claim, but asserts that he has a cognizable cause of action in negligence. Plaintiff's position is premised upon the assertion of a duty of defendant to agree to the demolition of a party wall. The trial court ruled that defendant had no such duty under the circumstances. We agree and affirm.

Plaintiff's building and defendant's building shared a common wall. In 1981, fire destroyed plaintiff's structure. A separate fire damaged the interior of defendant's building but left it structurally sound. Plaintiff obtained the services of an engineer, who found the party wall to be unsound and recommended its demolition. However, defendant refused to agree to the demolition, because the wall continued to provide some support for defendant's roof and walls. Plaintiff now claims damages resulting from the delay in rebuilding caused by defendant's refusal.

A party wall exists, regardless of an agreement between the parties, where a division wall exists between two buildings and has been used as support for both buildings for a period longer than the statute of limitations. Weadock v. Champe, 193 Mich. 553, 564-565, 160 N.W. 564 (1916). Easement rights in a party wall continue as long as the necessary support exists and the wall is of some value. 60 Am.Jur.2d, Party Walls, Sec. 14, pp. 284-285; 69 C.J.S., Party Walls, Sec. 11(b), pp. 8-9. Ordinarily, the easement ceases only when the wall no longer exists or becomes completely unfit for its purpose. 69 C.J.S., Party Walls, Sec. 11(b), pp. 8-9. As long as the easement continues, each property owner owes the other a duty not to threaten or destroy the support of the adjoining building. G.F. Heublein, Inc. v. Second National Bank, 115 Conn. 168, 160 A. 898 (1932).

Thus, weakening of the wall by fire does not necessarily deprive a person of his party wall rights. G.F. Heublein, Inc. v. Second National Bank, supra; Beidler v. King, 209 Ill. 302, 70 N.E. 763 (1904), 60 Am.Jur.2d, Party Walls, Sec. 15, p. 286. Rather, the easement continues when the party wall continues to provide support, regardless of whether the servient tenant's building remains. Carley v. Lawrence, 170 F.2d 381, 384 (C.A.7, 1948).

In the instant case, plaintiff...