Capital City Inv. Co. v. Burnham
| Decision Date | 05 June 1909 |
| Citation | 143 Iowa 134,121 N.W. 708 |
| Parties | CAPITAL CITY INV. CO. v. BURNHAM ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court; Polk County; Jesse A. Miller, Judge.
Action to recover damages for breach of the covenants of warranty in a deed for the sale of certain real estate in the City of Des Moines. The trial court directed a verdict for defendants, and plaintiff appeals. Affirmed.Hume & Hamilton, for appellant.
Clinton L. Nourse, for appellees.
On August 17, 1904, plaintiff purchased of defendants, E. L. Burnham and his wife, Charlotte, the S. 1/3 of lot 5, block C, in an addition to the city of Des Moines, and received from them a deed with the ordinary covenants of general warranty. It is claimed in the petition: That Damages are asked from defendants on account of this claimed breach of covenant in the sum of $5,000. Defendants denied the alleged breach of warranty, pleaded that Charlotte Burnham was not responsible in any event because she joined in the deed simply to release her distributive share, and further alleged: “That, after the said deed hereinabove referred to was executed by these defendants, the plaintiff entered into the full possession of the said property and erected a brick building thereon and used the south wall of the building called the ‘Essex building’ in the erection of plaintiff's said brick building without the payment of any compensation therefor, and that if part of the said Essex building did rest upon the S. 1/3 of said lot 5 in block C of Commissioners' addition to Ft. Des Moines, being the property conveyed by defendant to plaintiff, the same was placed thereon by the person who erected said Essex building as a party wall, and was always treated by the several owners of said Essex building as a party wall, and was treated and used by the plaintiff as a party wall, and plaintiff is now estopped from saying that said wall was or is an incumbrance upon the property conveyed to plaintiff by these defendants.”
After the testimony was fully adduced upon these issues, defendants filed a motion for a directed verdict based upon grounds which do not clearly appear in the abstract. The motion was sustained, however, on the theory that the owners of the Essex building had not obtained title to the property in dispute, that a party wall does not constitute an incumbrance, even though it extends more than nine inches over and upon a neighbor, and that the remedy, if any, in such cases, is to be determined and adjusted when use is made of the wall. It was further held by the trial court that plaintiff's cause of action, if any it has, is against the owners of the Essex building; the thought being that plaintiff has the same remedies in this respect as his grantors would have had had they retained the title. These propositions are all challenged by appellant's counsel, and they insist that, as the wall extended more than nine inches over and upon the lot which they purchased from defendants, they are entitled to judgment for the value of the land covered by this excess in width of the party wall. They admit that a party wall is not an incumbrance, and that if it is not set over more than nine inches upon their land they have no right to recover upon the covenants in their deed, but that these matters should be adjusted with the parties who erected or own the party wall. They also claim the wife, Charlotte, is liable on her covenants. Some other claims are made which, so far as material, will be noticed in the body of the opinion. To meet these contentions, it is insistedfor appellees: That there is no evidence that the Essex building extends to any extent upon plaintiff's property; that the owners of the Essex building are not claiming title to any part of plaintiff's real estate; that, if any part of the wall extends over and upon plaintiff's property, it is by mistake, and not under claim of right or color of title; that the wall is no incumbrance; and that in no event is Charlotte Burnham liable.
Going now to the facts, it appears that in the year 1891 the then owner of the N. 2/3 of lot 5 erected what is known as the “Essex building,” the south wall of which was at or near the line between the N. 2/3 and the S. 1/3 of lot 5. Prior to this time some of plaintiff's grantors had improved the S. 1/3 of the lot and placed the north wall of a building covering part of the property which was nine inches in width parallel with, but just south of, the line between the two fractions of the lot. When the Essex building was erected, the north wall of the other building was incorporated into the Essex building's south wall. Due to some mistake of a surveyor, the south wall of the Essex building does not, according to plaintiff's contention, run parallel with the division line; the claim being made that it slants to the south as it goes east. The exact claim here is that the center line of the wall of Essex building extends south to the line just one foot at the east end thereof and six inches at the west end. It is argued that this was a mistake due undoubtedly to an assumption that the wall theretofore erected upon the S. 1/3 of the lot was upon the true line.
After plaintiff's purchase from defendants, it decided to erect an office building upon its property, and it caused a survey to be made which it contended showed the extension of the Essex building upon their land to the extent above indicated. It went ahead and constructed its building and made use of the south wall of the Essex building from the basement to the height of four stories for the north wall of its building. After the building had been constructed, the Percival-Porter Co., as assignees of the owners of the Essex building, brought action against plaintiffs to this suit for the value of the wall used by it in the construction of its building, on the theory that it had joined onto and was using a party wall. Plaintiffs gave defendants notice of this suit and requested them to appear and defend or be bound by the result. They did not do so, and plaintiff in that action received judgment for $647.36 and costs. Plaintiff in this action paid this judgment with costs and attorney's fees amounting to $190. Plaintiff does not seek to recover this amount now, but does claim that by failure to appear defendants acquiesced in the line as claimed by the owners of the Essex building, and that the title to lot 5 is established by acquiescence as being where plaintiff claims it now is, and that as a matter of fact the deed from defendants calls for another and the true line which is northward of the line established by the Essex building. It is claimed that from one foot and three inches to one foot and nine inches of plaintiff's land is taken up by the Essex building, and that defendants so acted as to estop themselves from claiming to the true line, thus depriving plaintiff of some of the property which it purchased. It is for the value of the overplus beyond the nine inches of plaintiff's land upon which the owners of the Essex building placed their wall that plaintiff seeks to recover.
To solve the question of defendant's liability, we must first determine where the true line is between the two fractions of the lot. Unless plaintiff shows by a preponderance of the testimony that he has not received all his deed calls for, he must fail in this action. According to the testimony, lot 5 is 66.54 feet wide north and south and the width of the S. 1/3 would be 22.18 feet, leaving the N. 2/3 44.36 feet in width. A civil engineer testified that the south wall of the Essex building was 1 foot and 3 inches south of the north line of the S. 1/3 of lot 5 at one end, and that it was 1 foot and 9 inches south of the line at the other end. The lot faces west on what is known as “Sixth avenue” in the city of Des Moines. We now quote from the cross-examination of this witness as to how he made his survey:
“To ascertain the location of lot 5, block C, Commissioners' addition, I measured from the curb on Grand avenue. I measured south from this curb, determining the south line of Grand avenue, and then measured 66.54 feet for the lot immediately north of and 66.54 for this lot, lot 5. I measured from other points also--through the block on Fifth street and also on Sixth street to Locust street. I made use of the curb on Locust street for the purpose of ascertaining the location. There are monuments in some places for beginning surveys. The bench marks are...
To continue reading
Request your trial