Coumas v. Transcontinental Garage

• Decision Date: 01 May 1951
• Docket Number: Nos. 2465,2466,s. 2465
• Citation: 41 A.L.R.2d 539,68 Wyo. 99,230 P.2d 748
• Parties: , 41 A.L.R.2d 539 COUMAS et al. v. TRANSCONTINENTAL GARAGE, Inc., et al. (two cases)
• Court: Wyoming Supreme Court

Page 748

230 P.2d 748

68 Wyo. 99, 41 A.L.R.2d 539

COUMAS et al. v. TRANSCONTINENTAL GARAGE, Inc., et al. (two cases)

Nos. 2465, 2466.

Supreme Court of Wyoming.

May 1, 1951.

Clarence W. Cook, P. W. Spaulding, Evanston for Transcontinental Garage, Inc.

Louis Kabell, Jr., Evanston, for Tina Coumas and Mary Kochiras.

BLUME, Justice.

This is a case involving rights in a wall standing between two lots in the town of Evanston in this state. Briefly stated, plaintiffs Tina Coumas and Mary Kochiras, claim that the wall is a partition wall and that they have a perpetual easement in this wall and brought the action to restrain the defendant, Transcontinental Garage, a corporation, from interfering with the right. Defendant, on the other hand claims the sole ownership of the wall; that it gave a mere and limited license for the use thereof by the plaintiffs, and that the license is revocable at will. It asked the court for a decree that the plaintiffs have no interest in the wall. The lots in question are located in Block 5 of the town of Evanston facing Front Street on the north, the street running easterly and westerly. According to the original plat of the town of Evanston these lots are presumably 25 feet in width. Plaintiffs are the owners of Lot 8 which is easterly of the lots owned by the defendant. Defendant owns Lots 9 and 10 of the block in question, Lot 9 adjoining Lot 8 on the westerly side. A frame building was erected on Lot 8 sometime about 1876, and for many years was used as a saloon building. It was some 16 to 18 inches easterly from Lot 9. About 1885 a brick building of two stories was constructed on Lots 9 and 10 in question. Its width was less than 50 feet, so apparently it was constructed and intended to be constructed exclusively on Lots 9 and 10. It was originally constructed as an opera house but since about 1923 has been used and is now being used as a garage. In the spring of 1936 the present owners of Lot 8 determined to and did tear down the frame building on Lot 8 and proceeded to construct a brick building two stories high in place thereof. A resurvey of the lot was made by a surveyor. Specific facts in that connection will be mentioned later. It was admitted by the agent of the plaintiffs that he, on behalf of plaintiffs, asked the manager of the defendant to give permission to anchor the building of the plaintiffs to the building of the defendant, by using the defendant's easterly wall as a support for the westerly wall of the building to be erected on Lot 8. He, at the same time, so he testified, claimed that plaintiffs had a half interest in the wall, and that he asked the permission mentioned merely so as not to have any trouble. Oral consent to use the wall for such support was given, and plaintiffs anchored their building to the building of the defendant by joists and bolts. It does not appear that defendant received any compensation for the permission, or any other benefit. In 1947 the manager of defendant asked the plaintiffs to cease to use the wall, apparently on the ground that such use cracked it. The witness Steve Kochiras, however, testified on rebuttal that he saw those cracks in 1919, and that they existed long before the building of the plaintiffs was constructed. By agreement of the parties the trial judge went and examined the building and seemingly found the contentions of defendant in that connection not well taken. Other details and contentions will be mentioned later. The court made the following findings of fact:

'Findings of Fact.

'1. That the cost of plaintiffs' new building including the use of defendants' wall to the extent hereinafter stated, was $25,000.00; and said amount was expended in using as one of the walls of their said building, the easterly wall of defendant's garage building, to which finding the defendants duly except.

'2. That from that portion of the easterly side of the defendants' garage building exposed to view and viewed by the court, the appearance does not indicate that any prior building was ever attached to or made any use of the garage building wall or any part thereof, except for attaching flashing from the false or second roof of their old building on Lot 8 to easterly wall of garage building for the purpose of roof drainage and to prevent water from running down into the space of about sixteen or eighteen inches between the former building on Lot 8 and the defendants' garage building; and such use was without the knowledge and consent of the present owners of the defendants' building; to which finding the plaintiffs duly except.

'3. That consent was given to the plaintiffs by the owners of the garage building, such owners being the defendants, at or during the erection of the building on Lot 8 to use the garage building wall to anchor the second floor and roof joists of the new building to the easterly wall of the garage building, and such wall was so used with the knowledge and consent of the then owners of said garage building, such use being limited to these stated purposes, to which finding the defendants duly except.

'4. The Court further finds that the plaintiffs are the owners in fee of the premises now occupied by them, being said Lot 8 in Block 5 of the Original town of Evanston, Uinta County, Wyoming, but that the same does not include the said easterly garage wall, to which finding the plaintiffs duly except.

'5. The Court further finds that the plaintiffs and their predecessors in interest have no interest in the said easterly wall of said garage building by adverse possession, to which finding, the plaintiffs duly except.'

The conclusions of law of the court are as follows:

'Conclusions of Law.

'1. That plaintiffs have the right to use the garage building wall to anchor the second floor and roof joists of their new building to the easterly wall of the garage building, and to use such wall in that manner and to that extent only, and that such use shall continue without interference of the defendants so long as the nature of such use continues, to which conclusion defendants except.

'2. That the temporary restraining order heretofore granted in this action should be made perpetual, to which finding defendants duly except.

'3. That plaintiffs are entitled to be adjudged and declared owners in fee of Lot 8, Block 5, original Town of Evanston, Uinta County, Wyoming, not including the said garage wall or the land on which it stands, to which finding plaintiffs duly except.

'Now, therefore, pursuant to said findings of fact and conclusions of law, and on motion of Louis Kabell, Jr., Esq., attorney for plaintiffs:

'It Is Hereby Ordered, Adjudged and Decreed that plaintiffs have the right to use the garage building wall to anchor the second floor and roof joists of their new building on Lot 8, Block 5, original Town of Evanston, Uinta County, Wyoming, to the easterly wall of the garage building on Lot 9 of Block 5, of the Original Town of Evanston, Uinta County, Wyoming, and to use such wall in that manner and to that extent only, and that such use shall continue without interference of the defendants, so long as the nature of such use continues, to which defendants duly except.

'It Is Further Ordered, Adjudged and Decreed that the temporary restraining order heretofore granted in this action should be made perpetual and the defendants and each of them, their representatives, agents, attorneys and servants be, and they are hereby enjoined and restrained from in any manner interfering with, molesting and loosening the nuts on the bolts in the said wall of plaintiffs' building or in any manner committing any acts, severing or tending to sever the supports of the floors and ceiling joists of plaintiffs' building on Lot 8 in said Block 5, so long as the nature of said use of said wall by plaintiffs shall continue, to which defendants duly except.

'It Is Further Ordered, Adjudged and Decreed that plaintiffs be, and they are hereby declared and adjudged to be the owners in fee of said Lot 8 in Block 5 of the Original Town of Evanston, Uinta County, Wyoming, not including the said garage wall or the land on which it stands, to which plaintiffs duly except.'

Both parties have appealed from the decree entered herein. It is apparent that whatever relief was given to plaintiffs was given on the theory of estoppel. Edwin W. Spencer, manager of defendant corporation, who was made defendant in this case, died after the trial of this case. It does not appear that he had any interest in this case separate from that which he had in the defendant corporation. Hence, the latter is herein treated as the sole defendant, and with that understanding, the parties will be referred to herein as in the court below.

1. On the Appeal of the Plaintiffs.

It may be noted that the court refused to find that the plaintiffs have any interest in the easterly wall of the building of the defendant, other than the right of support mentioned in the decree. In that holding is necessarily included the fact that plaintiffs have no interest whatever in the ground--the area--on which the easterly wall of the defendant stands.

The substance of the contention of plaintiffs on the contrary is that the easterly wall of the building of the defendant stands partly on Lot 8; that the true boundary line between Lots 8 and 9 is somewhere--at least 7 1/4 inches--inside of the easterly line of the easterly wall of the building; that this line has been recognized as the true boundary line between the two lots for eleven years prior to the trial of this case; that accordingly the plaintiffs are part owners of the wall, and that the court erred in not so finding and decreeing.

The witness Chapman, a civil engineer, made two surveys to establish the boundary line between Lots 8 and 9 in question, one in 1936 and one in 1947. The record shows that all the original monuments located in the town of Evanston are lost, and a resurvey was made in 1932 by...