Calmelet v. Sichl

• Decision Date: 19 May 1896
• Docket Number: 6574
• Citation: 67 N.W. 467,48 Neb. 505
• Parties: ALEXANDER CALMELET, APPELLANT, v. JACOB SICHL, APPELLEE
• Court: Nebraska Supreme Court

67 N.W. 467

48 Neb. 505

ALEXANDER CALMELET, APPELLANT, v. JACOB SICHL, APPELLEE

No. 6574

Supreme Court of Nebraska

May 19, 1896

APPEAL from the district court of Otoe county. Heard below before CHAPMAN, J.

REVERSED AND REMANDED.

Edwin F. Warren, for appellant:

The defendant used the wall, to the height of three stories, for about twenty years. If there was no special contract between the owners, this would give him the right to continue its use; but the extent and mode of user define the right. That right, as so defined, was the right to use the wall for three stories only. The right cannot be changed or enlarged. (Ballard v. Dyson, 1 Taunt. [Eng.], 278; Alwater v. Bodfish, 11 Gray [Mass.], 152; Holsman v. Boiling Spring Bleaching Co., 1 McCar. [N. J.], 346; Burnham v. Kempton, 44 N.H. 95; Richardson v. Pond, 15 Gray [Mass.], 390; Clayton v. Corby, 5 Ad. & El., n. s [Eng.], 422; Jones v. Percival, 5 Pick. [Mass.], 485; Brice v. Randall, 7 Gill & J [Md.], 349; Holmes v. Seeley, 19 Wend. [N. Y.] 507; City of Hartford v. Hartford County, 49 Conn. 554; Carlisle v. Cooper, 19 N.J.Eq. 256; Horner v. Stilwell, 35 N.J.L. 307; Hazard v. Robinson, 3 Mason [U. S.], 272; Manier v. Meyers, 4 B. Mon. [Ky.], 514; Davidson v. Fowler, 1 Root [Conn.], 358; Charles River Bridge v. Warren Bridge, 7 Pick. [Mass.], 449; Wright v. Moore, 38 Ala. 593; Atkins v. Bordman, 20 Pick. [Mass.], 291; Postlewaite v. Payne, 8 Ind. 104; Jones v. Tapling, 11 C. B., n. s. [Eng.], 283; Wood v. Cooper Miners Co., 14 C. B. [Eng.], 428; Sharpe v. Hancock, 7 Man. & G. [Eng.], 354; St. John v. Sweeney, 59 How. Pr. [N. Y.], 175; Milne's Appeal, 81 Pa. 54; Sullivan v. Graffort, 35 Iowa 531; Price v. McConnell, 27 Ill. 255.)

The height of the wall could not be increased with safety or without injury to plaintiff. Conceding it to be a party wall, defendant had, therefore, no right to increase its height. (Brooks v. Curtis, 50 N.Y. 639; Matts v. Hawkins, 5 Taunt. [Eng.], 20; Price v. McConnell, 27 Ill. 255; Vollmer's Appeal, 61 Pa. 118; Ogden v. Jones, 2 Bosw. [N. Y.], 685.)

Plaintiff is entitled to an order requiring defendant to take down the wall. (Earl v. De Hart, 12 N.J.Eq. 286; East India Co. v. Vincent, 2 Atk. [Eng.], 83; Carlisle v. Cooper, 21 N.J.Eq. 581.)

John C. Watson, contra:

A party wall may be created by user as such for the prescriptive period, for from such user a contract between the parties is presumed, in the absence of evidence that the user was presumptive only. (Brown v. Werner, 40 Md. 15; McLaughlin v. Cecconi, 5 N.E. [Mass.], 261; Schile v. Brokhahus, 80 N.Y. 614; Dowling v. Hennings, 20 Md. 179.)

Either of the owners of a party wall may increase its height when it can be done without injury to the adjoining building, and the wall is sufficiently strengthened to safely bear the additions. (Brooks v. Curtis, 50 N.Y. 639; Andrae v. Haseltine, 17 N.W. [Wis.], 18; Dauenhauer v. Devine, 51 Tex. 480; Musgrave v. Sherwood, 54 How. Pr. [N. Y.], 338.)

When the law and the facts permit either owner to increase the height of the party wall, he cannot be restrained from so doing by injunction. (Quinn v. Morse, 130 Mass. 317; McLaughlin v. Cecconi, 5 N.E. [Mass.], 261.)

Reference was also made to the following cases: Miller v. Brown, 33 Ohio St. 547; Western Bank's Appeal, 102 Pa. 171; Henry v. Koch, 80 Ky. 391; Roger v. Sinsheiner, 50 N.Y. 646; Orman v. Day, 5 Fla. 392; Montgomery v. Masonic Hall, 70 Ga. 38; Rankin v. Charless, 19 Mo. 490.

OPINION

The facts and issues are stated by the commissioner.

RYAN, C. J.

Plaintiff is the owner of a parcel of ground in Nebraska City having a north frontage on Main street of twenty-two feet, from whence said parcel extends southward sixty feet. The land of defendant is contiguous to the west and south sides of this sixty-foot tract. Originally a remote grantor through whom plaintiff derived title, built a one-story building on the west side of the tract above described as being owned by the plaintiff. The west wall of this building was entirely within and contiguous to the west line of said tract. Subsequently, in 1868, the defendant's grantor, who owned the land that was along the west and south sides of said parcel now owned by the plaintiff, but which at that time was owned by Marks Bros., remote grantors of the plaintiff, made use of the west wall along plaintiff's present property in the construction of the Watson House to the height of three stories. Still later, plaintiff having acquired his present parcel of land, replaced the one-story building thereon with another building two stories in height, for this purpose making use of the wall which had constituted the west side of his one-story building, and the required portion of this wall extended upward by defendant to make the Watson House three stories high. This change from a one to a two-story building necessitated the closing with brick of eight windows in the prolonged upward wall of the Watson House. As the owner of the Watson House refused to pay for, or even to contribute to the expense of, closing these windows, plaintiff was compelled to pay the entire amount. There seems, however, to have been no objection interposed to this closing of these openings in the wall other than would naturally be expected by reason of the inconvenience caused. There was certainly no attempt to assert adverse conflicting rights, or as between Mr. Lindsay, the defendant's grantor, and Marks Bros., who then owned plaintiff's present parcel of land, there does not appear from the evidence to have been any written contract under which the three-story wall of the Watson House was built, at least no one attempts to give the contents of such a contract or account for its whereabouts, nor even to say that such a writing was ever seen or in existence. In 1891 the defendant was desirous of extending upward the walls of the Watson House to the height of an additional story, and was carrying his design into execution, when the plaintiff procured an injunction by which the completion of the work was stayed. It is claimed by plaintiff that before the commencement of this work he caused to be served upon the defendant a written notice to desist, but as no one testified to this service, and the defendant denied it, we must assume that it was never given. After hearing on a motion to dissolve the injunction said motion was sustained, and of this fact the defendant, having obtained the first knowledge, pushed his wall to completion before any further steps could be taken by plaintiff to prevent this being done. This was on June 13, 1891. On the 10th day of January, 1893, there was had a trial to the court, and on June 19, following, there was entered a decree dismissing plaintiff's petition, because, as the court found, it contained no equity. From the dismissal of his action and the taxation of costs against him the plaintiff appeals.

The petition recited plaintiff's title and all the above described facts, which, as he claimed, entitled him to prevent the placing of a fourth story upon the wall of which his west side constituted the first story. There were averments of the insufficient thickness of the wall already in existence to sustain another story, but these we do not feel called upon to describe or discuss at great length. The answer contained a general denial, followed by these averments: "Second--The said defendant * * * alleges that this defendant and his grantors have for twenty years last past been in open, notorious, peaceable, exclusive, and adverse possession of the property known as the Barnum House, or Watson Hotel, claiming the same as owners against the plaintiff and his grantors and all persons whomsoever. Third--The said defendant * * * further * * * alleges that during the spring of 1868 this defendant's grantor, Lindsay, for a full and valuable consideration, and in pursuance of a written agreement between Marks Bros. and said Lindsay, became a part owner of the division wall between this defendant and said plaintiff, and under and in pursuance of said agreement re-enforced and strengthened the foundation of said wall and entered at that time into the undisputed use and possession thereof, building the same two stories higher and putting windows in the said wall for the use of his hotel building on said premises, which said Lindsay was at that time enlarging and rebuilding; that the defendant is informed and believes that by and under the terms of said agreement said Lindsay became the owner of one undivided half of said wall, but that this defendant is unable to state the terms and conditions of said agreement, the same never having come into defendant's possession; that said Marks and Lindsay are both dead and defendant knows of no one by whom he can establish the contents of said agreement; but this defendant then alleges that his grantor alleges that his grantor, Lindsay, entered into possession of said wall as a joint owner of the same in the year 1868, and ever since, until he sold said premises to said defendant, used and occupied the same as the division and party wall between plaintiff and defendant, and that plaintiff has so used and occupied this said wall ever since his purchase of said premises from Lindsay, purchasing and paying for the same, and that this defendant is the owner of an undivided one-half of said wall entitled to all the rights and privileges of an equal owner of a party or division wall. Wherefore defendant prays that this action may be dismissed and that plaintiff recover nothing by his writ." There was a reply in which was denied each of the above copied averments of the answer.

The issues presented by the general denial contained in the answer have already been sufficiently covered for general purposes by the...