Dauenhauer v. Devine

• Decision Date: 01 January 1879
• Citation: 51 Tex. 480
• Parties: S. DAUENHAUER v. G. P. DEVINE.
• Court: Texas Supreme Court

51 Tex. 480

S. DAUENHAUER

v.G. P. DEVINE.

Supreme Court of Texas.

1879.

APPEAL from Bexar. Tried below before the Hon. George H. Noonan.

The opinion recites the facts.

J. H. McLeary, for appellant.

I. The court erred in overruling defendant's plea to the jurisdiction, as is shown by bill of exceptions. (Const., art. 5, secs. 8, 16; Laws of 15th Leg., secs. 3, 5, pp. 18, 19; Paschal's Dig., art. 1405.)

II. The court erred in disregarding the plea of the defendant, that the instrument dated 7th of June, 1877, was without consideration and void.

The court will observe that the consideration set out in the instrument is no consideration at all. The instrument begins: “In consideration of G. P. Devine allowing me to put the dead third-story south wall of the building I am erecting on the corner of Main plaza and Commerce street on the north wall of the ‘dollar store,’ 'DDD' &c. This privilege the defendant already had under the first agreement. On examination of both instruments, it is believed it will appear that the appellant Dauenhauer gains nothing in the way of privilege, benefit, or emolument by the second instrument over and above what he had secured by the first. Devine expressly states, in his testimony, that “the only consideration to Dauenhauer for making or signing the instrument dated 7th of June, was the privilege of building a three-story wall instead of a two-story wall, as at first contemplated.”

Now, in the first instrument there is nothing said about the height or number of stories to which the wall was to be built. Then, the pleadings and the evidence both show the instrument to be without consideration and void. (Pars. on Cont., 427, et seq., 437, and note j.)

III. The court erred in ordering in the decree “that the instrument signed by the said Dauenhauer, dated 7th of June, 1877, is a valid and subsisting agreement between the said plaintiff and the said defendant, which said agreement is set out in the pleadings herein and is as follows, to wit,” (setting out the instrument at length,) the plaintiff not having prayed for this in his petition, and the evidence not warranting the said paragraph in the decree even had the same been asked for in the pleadings, which it was not, thus giving the plaintiff not only more than the evidence warranted, but even more than he prayed for in his petition. (Paschal's Dig., arts. 1427-1476; McKey v. Welch, 22 Tex., 396, 397;Pinchain v. Collard, 13 Tex., 335;Brown v. Horless, 22 Tex., 647;Hogan v. Kellum, 13 Tex., 399, 400; Paschal's Dig., note 539, and authorities therein cited.)

IV. The decree of the court is erroneous in fixing the time within which Dauenhauer, the defendant, is to close up the windows at thirty days, there being nothing in the law to warrant this particular limit.

When it is considered by the court that the appellant complied with the terms both of the first and second instruments, by giving his foot of ground and paying for his share of the wall, as stipulated in the first agreement, and by closing up the second-story window, as required by the second agreement, (so called,) it seems quite unreasonable to require him to close up his windows, at a cost of several hundred dollars, merely on account of the incidental expression used in the document, which it is clear, from the evidence, the appellant did not understand. The plaintiff's whole case, resting on the incidental use of an obscure technical term, seems to us to have rather a shadowy foundationWœlder & Upson, for appellee.

I. The District Court has power to issue the writ of injunction, and it is the only court which has this power in a case like this, in which the title to and enjoyment of the real property of the complainant is involved.

One-half of the land upon which the party-wall stands is owned by the plaintiff. (Const., art. 5, sec. 8; Wash. on Ease., 547.)

The title to one-half of the ground upon which the partywall stands being in Devine in severalty, any real or supposed trespass upon his land is cognizable in the District Court, and in that court alone.

II. The judgment of the court may be so framed “as to afford all the relief which may be required by the nature of the case, and which is granted by courts of law or equity.”

Under prayer for general relief, the plaintiff is entitled to such a final judgment on the merits as the law and the facts authorize. (Paschal's Dig., art. 1410; Hardy v. De Leon, 5 Tex., 236;Hipp v. Huchett, 4 Tex., 23;Trammell v. Watson, 25 Tex. Supp., 216.)

III. Every order or decree requiring a person to do an act, is to state the time within which the act is to be done.

The decree provides that the windows in the third-story wall shall be walled up within thirty days. (2 Dan. Chan. Plead., 1005.)

IV. The specific directions of a decree must depend upon the nature of the particular case which is the subject of the decree. (2 Dan. Chan. Plead., 1004, and note 8.)

V. If the party commanded to do the act fails to do the act within the time fixed by the decree, the court may cause its order to be executed. (2 Dan. Chan. Plead., 1042, et seq.) Under our system, the proper person by whom the court would cause its order to be executed is the sheriff.

VI. The party-wall is devoted to the purpose of being used for the common benefit of both adjoining owners. (Brooks v. Curtis, 50 N. Y., 639.) A wall with windows in it could not be so used.

In the absence of the agreement of June 7, 1877, the rights of both parties being fixed and limited by the agreement of May 8, 1876, the easement in the wall could not be enlarged, extended, or burdened with a use not contemplated by the agreement last named. (Kirkham v. Sharp, 1 Whart., 323;Seibert v. Levan, 8 Barr., 383.) The placing of windows in a wall which was intended to be a party-wall between the two adjoining buildings, (necessarily a solid wall,) would be an enlargement and extension of the easement.

An attempt to extend an easement will be enjoined. (Carty v. Shields, Sup. Ct. of Penn., 1878.)

VII. Under a statute regulating--or under an agreement, as in this case, providing for--the erection of a party-wall, such party-wall cannot be subjected to a servitude foreign to its uses as a wall in common, nor can its capacity as such be injured by making openings therein. (Greenwald v. Kappes, 31 Ind., 216; Sullivan v. Graffort, 35 Iowa, 531; Marion v. Johnson, 23 La. Ann., 597; Milne's Appeal, 81 Penn. St., 54 Wood on Nuis., sec. 232.)

VIII. When a wall is built half upon the land of each land owner, either party has a right to carry up his half of the wall above that of the half of the other proprietor, if he sees fit. (Wash. on Ease., 538, referring to Matts v. Hawkins, 5 Taunt., 20.) But he could not carry up the half of the adjoining proprietor, without the latter's consent. There being an agreement in this case providing for carrying up the entire wall as a solid or “dead” wall, such agreement is binding upon both parties.

IX. Where there is a party-wall between two adjoining estates, neither party has a right to demolish or rebuild it at his pleasure, because he is not the sole owner or master of the structure. (Wash. on Ease., 551.) Upon the same principle, the appellant in this case would not have the right so to construct his additional or raised wall as to make it beneficial to him alone, or to change its character from a solid wall to one with openings in it.

GOULD, ASSOCIATE JUSTICE.

Devine and Dauenhauer, being proprietors of adjoining lots fronting on the Main plaza of the city of San Antonio, entered into an agreement that Devine was “to put up party-walls (whenever he is prepared to build on his lots on Main plaza) with” Dauenhauer, who agreed to give Devine “one foot of ground, for the purpose of erecting said party-walls, off of his property on the Main plaza,” and “to pay one-half of the cost of said party-walls.” In case Dauenhauer “should wish to have plates placed in said party-walls for the convenience of laying joists,” he agreed to pay Devine the cost of said plates.

Under this agreement Devine erected a two-story building, known as the “dollar store,” on his lot, the cost of the party-wall--two feet thick at the bottom and eighteen inches at the top, located so as to occupy one foot on each lot-- being paid one-half by each. In this party-wall was one window, placed there by Dauenhauer with Devine's consent. At this time Dauenhauer had a one-story building on his lot. Subsequently, Dauenhauer, being engaged in erecting a three-story building on his lot and being about to raise the party-wall to three stories, was approached by Devine, and at his request signed the following instrument: “In consideration of G. P. Devine allowing me to put the dead third-story south wall of the building I am erecting on the corner of Main plaza and Commerce street on the south wall of the ‘dollar store,’ I obligate myself to allow said Devine to build (should he hereafter wish to do so, in putting another story on his buildings on Main plaza) on that part of the west line of the store occupied by D. and A. Oppenheimer fronting on Commerce street, as also on the end of said store; and I obligate myself to close up the window in the north wall of said ‘dollar store’ with solid masonry at the time of putting up my third-story wall.” This instrument is dated June 7, 1877, witnessed by A. Siebel, and signed by S. Dauenhauer.

This suit was instituted by Devine July 14, 1877, alleging that Dauenhauer, in violation of these agreements and of the rights of petitioner as owner of one-half of the land on which the wall rested, was about to place windows in said third-story wall, instead of making it a dead wall, and alleging that these windows would be of irreparable damage to petitioner, exposing his adjoining building to fire; giving access to the roof thereof to unauthorized persons; depreciating the value of his property by reason of the dangers to which it would thus be exposed; also...