Deere, Wells & Co. v. Weir-Shugart Co.

• Decision Date: 25 May 1894
• Citation: 59 N.W. 255,91 Iowa 422
• Parties: DEERE, WELLS & COMPANY v. WEIR-SHUGART COMPANY, Appellant
• Court: Iowa Supreme Court

59 N.W. 255

91 Iowa 422

DEERE, WELLS & COMPANY v. WEIR-SHUGART COMPANY, Appellant

Supreme Court of Iowa, Des Moines

May 25, 1894

Appeal from Council Bluffs Superior Court.--HON. J. E. F. MCGEE Judge.

ACTION at law to recover one half of the value of a wall, and for its use. There was a trial by the court without the aid of a jury, and a judgment for the plaintiff. The defendant appeals.

Affirmed.

Sims & Bainbridge for appellant.

Harl & McCabe for appellee.

OPINION

ROBINSON, J.

The parties to this action own adjoining lots in the city of Council Bluffs. The plaintiff constructed upon its lot, and now occupies, a three-story brick building, the south half of the south wall of which was built on the lot now owned by defendant. At that time, it was owned by Shugart, Waite & Weir, who thereafter erected upon it a two-story frame warehouse. They were succeeded in the ownership of the lot and business by the defendant, by whom the warehouse is now occupied. It is claimed by the plaintiff that the south wall of its building is a party wall, for the use and one half the value of which the defendant is liable. The superior court rendered judgment for the plaintiff in the sum of five hundred dollars. The appellant contends that the evidence was not sufficient to authorize the superior court to find that the wall in question is a party wall, and whether it was, is the only question we are required to determine. Section 2019 of the Code provides as follows "In cities, towns, and other places surveyed into building lots, the plats whereof are recorded, he who is about to build contiguous to the land of his neighbor may, if there be no wall on the line between them, build a brick or stone wall, at least as high as the first story * * * and rest the one half of the same on his neighbor's land, but the latter shall not be compelled to contribute to the expense of said wall." Other sections provide for making walls so built, walls in common. The wall in question was made without openings, and in all respects fulfills the requirements of a wall in common. The plaintiff claims that the defendant is using it as such a wall, and it is not denied that, if such is the case, the defendant should pay a share of its value. None of the joists or other timbers of the warehouse are let into the wall, and it is not necessary to support the warehouse in any respect. Nevertheless, when the latter was built the north ends of its east and west sides and roof were attached to the wall. There is some conflict in the evidence in regard to the mode and strength...