Everett v. Edwards
| Decision Date | 05 September 1889 |
| Citation | 149 Mass. 588,22 N.E. 52 |
| Parties | EVERETT v. EDWARDS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R.M. Morse, Jr., and C.S. Hamlin, for plaintiff.
Hutchins & Wheeler, for defendants Ropes, Dexter, and Chipman.
In the year 1826 the owner of two adjoining city lots built a house upon each lot, separated from each other by a brick wall one-half of which was on each lot. The next year he conveyed one of the lots to the plaintiff's grantor, and in 1828 he conveyed the other house to another grantee, under whom the defendants claim. In each deed the boundary line between the houses is described as "a line running longitudinally through the center of the partition wall between the houses," and the same description is contained in the deeds to the plaintiff and to the defendants. The wall remained without change until July or August, 1885. In June, 1885 the defendant Edwards borrowed of the petitioners Ropes and Dexter $20,000 on a mortgage of his estate, for the purpose of building an addition onto his house, and soon after built up the wall so that it was 5 feet higher than the peak of the wall as it had been, and 18 feet above the eaves, putting on a flat roof, and completing the work September 1, 1885. November 3, 1886, the plaintiff brought this bill against Edwards alone, to have him compelled to remove so much of the addition to the wall as is on the plaintiff's side of the division line, and for damages. After a hearing upon the merits, a decree was entered ordering a removal of the wall from which the defendant appealed. Subsequently, and after the entry had been made on the docket that the defendant withdrew his appeal, the mortgagees Ropes and Dexter presented a petition, praying that the decree might be vacated, and that they might be allowed to become parties defendant, and to defend the suit on the merits. At the same time, Chipman, who held a second mortgage given by Edwards in September, 1885, filed a similar petition. The petitions were allowed, and the petitioners admitted as defendants, and filed answers. The plaintiff appealed. The case was heard upon the merits, and reported to the full court.
The mortgagees are directly interested in the subject-matter of the suit. It seeks to diminish the value of their security, and is brought to establish the right of the plaintiff to do so. If the plaintiff removed the wall without right, he would be liable therefor to the mortgagees. James v. Worcester, 141 Mass. 361, 5 N.E. 826, and cases cited. The bill is brought to establish and exercise for him his right to remove it. It is no answer to say that, if the security is impaired, it will be in consequence of the wrongful act of the mortgagor with the permission of the mortgagees. The question whether the act was wrongful is a question upon which the mortgagees have a right to be heard. They are immediately interested in resisting the plaintiff's claim, and are necessary parties to the suit, and their petitions that the decree should be vacated, and they admitted as defendants, were properly allowed.
The wall, as it stood before it was built upon by Edwards, was a party-wall. It was built and conveyed by the owner of both estates as the partition wall between the houses, and has been used as a party-wall by the several owners of the houses for 40 years. No express grant, or agreement, or statute, defines or limits the rights of the parties, and they are such as the law implies to have been the intention of the parties from the grant expressed or implied from user of the wall as a party-wall, and it is immaterial whether the grant is by the single owner of both estates or is the mutual grant of several owners. See Webster v. Stevens, 5 Duer, 553; Richards v. Rose, 9 Exch. 218. The wall must be taken to have been built as a single structure, and granted by the owner or owners of two estates to constitute the wall of the house upon each estate. It was not the dividing line between the two houses, because it was a part of each house, and each owner had an equal right in the whole wall with the other owner. The estate which the owners have in it is an estate in a party-wall, and the rights of the owners in it are found in their presumed intention in the mutual grant of a party-wall, rather than by classifying it with other estates, and deducing its qualities from the name given to it. The English courts, when, looking at the common interest and right of the parties, they call it a tenancy in common, do not mean that either party can have partition; and the courts of New York, when, considering the rights of one owner in the part of the wall on the land of the other owner, they say that each owns one-half in severalty with an easement in the other half, are not prevented from deciding in the same case that each can take down and rebuild the half of the other, (Partridge v. Gilbert, 15 N.Y. 601;) nor from deciding that the easement is not an incumbrance upon either estate, but a benefit to each, (Hendricks v. Stark, 37 N.Y. 106; see Bertram v. Curtis, 31 Iowa, 46.) We are not considering the frequent cases where the rights of the parties are defined by special terms or agreements, but the simple grant, express or implied, of a party-wall; and this is a grant by the owner of both estates, or the mutual grant of the separate owners, of rights in a wall situated on both estates. What these rights are depends upon the presumed intention of the parties. The question involved in this case is whether such a grant is limited, as to the height of the wall, to a particular wall, or to the wall which shall first be built under it, or whether it gives to either party a right to build higher an established wall, for the purpose of putting an addition upon his house. It is assumed that this will be done without impairing the integrity or stability of the existing wall. The purpose of each of the adjoining owners in providing for a party-wall is the same. It is intended to form part of a building on his land. A party-wall is as beneficial to him as a several wall, and it is no detriment to him, for the use which one owner makes of it as a wall of his building cannot impair the use of the other. In effect each owner acquires the right to build one-half of his wall upon his neighbor's land, and each, contributing his portion of the expense, has a right to an equal benefit in a wall so built. The wall is a substitute to each for a separate wall, and there can be no implied limitation in his right to use it as he would use his several wall, except that he shall not impair its value to his neighbor. With this limitation, it will be presumed that each intended it for all uses and purposes to which the wall of his building would ordinarily and properly be put. That presumption is for the advantage of both and to the detriment of neither. If the party-wall cannot be built up, neither house can be raised without building a new wall; for if one owner could lawfully build a several wall upon the part of the wall over his own land, it would not be a right of practical value. He could not build on it a sufficient wall. It is not reasonable to suppose that each party intended that he should never use the wall for a building higher than the one that should be first erected, and a provision to that effect, detrimental to both parties and beneficial to neither, cannot be presumed. If it is said that one owner may not wish to use the wall as built up, and may prefer not to have the adjoining...
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