Carroll Blake Const. Co. v. Boyle

• Decision Date: 01 June 1918
• Citation: 203 S.W. 945,140 Tenn. 166
• Parties: CARROLL BLAKE CONST. CO. v. BOYLE ET AL.
• Court: Tennessee Supreme Court

203 S.W. 945

140 Tenn. 166

CARROLL BLAKE CONST. CO. v. BOYLE ET AL.

Supreme Court of Tennessee.

June 1, 1918

Certiorari to Court of Civil Appeals.

Suit by E. L. and C. H. Boyle against the Carroll Blake Construction Company and J. A. Evans and I. Oppenheim. There was a verdict and judgment against the Carroll Blake Construction Company and in favor of defendants Evans and Oppenheim, and from a judgment of the court of Civil Appeals, affirming the judgment as to the Carroll Blake Construction Company and reversing it as to the defendants Evans and Oppenheim petitions of certiorari were granted. Judgment of Court of Civil Appeals affirmed.

R. Lee Bartels, of Memphis, for plaintiff.

G. T Fitzhugh, Evans & McCadden, and Gates & Martin, all of Memphis, for defendants.

FENTRESS J.

This is a suit to recover damages for the collapse of plaintiffs' building, alleged to have been caused, primarily, by the negligence of the contractor employed by the owner of the adjoining lot and his lessee to erect upon the lot of the former a storehouse for the occupancy of the latter.

Plaintiffs and Evans were the owners of four-story business houses which stood upon adjoining lots on Main street, in the city of Memphis. In 1853 their respective predecessors in title erected these buildings and built between them a division wall for their joint benefit. The wall, exclusive of footings, stood 10 1/2 inches on the Boyle lot, and 2 1/2 inches on the Evans lot, and supported the joists of both buildings.

Plaintiffs' lot had a frontage on Main street of 18 feet, 7 1/2 inches and Evans' lot 37.3 feet, and both were 70.82 feet in depth.

Defendant Evans' house had become infirm, and on this account its rental value was reduced, while the ground upon which it stood was very valuable, so he and his lessee, the defendant Oppenheim, employed the Carroll Blake Construction Company to remove the old building and erect in its stead a new one, pursuant to plans prepared by their architect.

The plans provided that the foundation of the new house should extend 2 1/2 feet below the party wall, and that the contractor should remove its footings on Evans' lot and build beneath the wall 2 1/2 inches to the depth of 2 1/2 feet for its entire length, and make openings in the party wall where it was necessary to insert joists for the support of the floors of the new building.

The contractor removed the old building, and during the night of April 23, 1915, the subcontractor to whom it had sublet the excavation, in violation of the orders of the architect and city building inspector, excavated a trench 2 1/2 feet below and adjoining, but not underneath, the footings of the party wall for its length.

At 7:30 a. m. on the following day the wall collapsed, causing the floors of plaintiffs' building to fall, and resulting in the destruction of their house.

Prior to the removal of the building all the defendants seasonably notified plaintiffs of their intention to remove the old building and erect a new one in accordance with the plans, and advised the plaintiffs to protect their portion of the party wall by shoring, underpinning, and such other means as might be necessary to its preservation.

The wall was not strengthened by underpinning or shoring, and when the lateral support of the soil of Evans' lot was removed its foundation slid into the trench.

The trial resulted in a verdict and judgment against the contractor for $7,500 and in favor of defendants Evans and Oppenheim. Upon appeal to the Court of Civil Appeals that court affirmed the judgment as to the contractor and reversed it as to the contractees. Petitions for certiorari were granted and the case has been argued here.

It is contended by the construction company that plaintiffs had not the right to the lateral support of the soil of the adjoining lot for the support of their part of the wall, and that they were guilty of contributory negligence in failing to underpin and shore it, in violation of the requirements of the building ordinances of Memphis.

As these defenses are made by the other two defendants, it is unnecessary to discuss them separately, because if they are available as to the contractor they are likewise conclusive of nonliability as to the contractees.

In Dunscomb v. Randolph, 107 Tenn. 97, 64 S.W. 23, 89 Am. St. Rep. 915, this court approved the following definition of a party wall:

"A party wall is the division wall between two connected and mutually supporting buildings, either both actually erected or one only contemplated, of different owners, commonly but not necessarily standing half on the land of each, ordinarily maintained at mutual cost, and always with the right of each owner to insert therein his timbers.

Its sources are three--an express or implied contract between the parties, prescription, which is a particular form of the implied contract, and a statute or municipal by-law."

In Sanders v. Martin, 2 Lea, 215, 31 Am. Rep. 598, it was said:

"If two adjoining owners build a wall partly on each lot, and by agreement or by continuous use for 20 years treat it as a party wall, each has an easement of support for his half," citing Webster v. Stephens, 5 Duer (N. Y.) 553.

So it is that both by contract and by prescription this wall was a party wall and each adjoining owner had an easement in the other's portion of it. For the purposes of supporting their respective houses the wall was joint property, notwithstanding the fact that the land upon which it stood was held in severalty. The right of support also that one owner had in the portion of the party wall located on the other's land necessarily extended, of course, to sufficient of the adjoining soil to give the wall support.

We are of the opinion that Evans and Oppenheim had the right to make such alterations or repairs in the part of the wall standing upon the Evans lot as was necessary to erect the proposed building, provided it could be done without weakening or otherwise impairing plaintiffs' use of it, and that in so doing they stood as insurers to plaintiffs against injury to their house growing out of the work.

Judge Cooley in his work on Torts says:

"Where a party wall exists, each proprietor has an easement in the land of the other for its use, repair, and support. * * * Rights in party walls pass with the land to heirs or assignees without being specially mentioned in the conveyance. Each proprietor owes to the other the duty to do nothing that shall weaken or endanger it, and though each may rightfully, when he finds it for his interest to do so, increase its height, sink the foundation deeper, or on his own side add to it, yet it seems

that in doing so he is insurer against damages to the other proprietor." Cooley on Torts, §§ *440, *441.

In Washburn on Easements (page 455) the author says:

"So long as the wall is capable of answering the purposes for which it was erected, the owner of either part may underpin the foundation, sink it deeper and increase its thickness within the limits of his own lot, or its length or height, if he can do so without injury to the building on the adjoining lot. But he cannot interfere with the wall in any manner, unless he can do so without injury to the adjoining building, or without the consent of the owner of such building. He cannot pare off the part of the wall that stands on his own land, so as to render the remainder insufficient or unsafe, or excavate under the part of the wall upon his own premises, to the permanent injury thereof." Eno v. Del Vecchio, 4 Duer (N. Y.) 53; Id., 6 Duer (N. Y.) 17; Webster v. Stephens, 5 Duer (N. Y.) 553; Dowling v. Hennings, 20 Md. 179, 83 Am. Dec. 545; 20 R. C. L. 1090.

It is insisted that as there was no agreement between the grantors of the present owners, who built the wall, as to how long it should stand, and because it was for their mutual benefit and that of their successors in title, therefore plaintiffs had no right to prevent defendant Evans from removing his portion of the wall, as it was no longer useful to him, and thereby deny to him the full enjoyment of his property. In support of this position counsel rely upon Hieatt v. Morris, 10 Ohio St. 523, 78 Am. Dec. 280, and Clemens v. Speed, 93 Ky. 284, 19 S.W. 661, 19 L. R. A. 240.

The latter case, we think, is not apposite. It treats of the right to support in an adjoining building. The former case does hold that the right to maintain a party wall in the absence of an agreement for a specified length of time continues only so long as it is beneficial to both parties; but this case denies the common-law right, adopted in this state, which arises by prescription, of the owner of a lot to an easement of support in the portion of the party wall standing upon the adjoining premises, and is in direct opposition to the general rule. See 12 C.J. 192, and note; note to Mann v. Reigler, 18 L. R. A. (N. S.) 133.

In Sanders v. Martin, supra, this court said:

"Each owner acquires an easement of support by the party wall so long as it stands, which the other may not weaken or destroy," citing Brown v. Windson, 1 Crompt. & J. 20; Dowling v. Hennings, 20 Md. 179; Partridge v.

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