Fleming v. Cohen
| Decision Date | 08 July 1904 |
| Parties | FLEMING v. COHEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John R. Murphy and John E. Macy, for appellant.
Chas W. Bartlett, Elbridge R. Anderson, and Fredk. C. Allen, for appellee.
The parties own adjoining estates, and the defendant has constructed a brick building, a small part of which is on the land of the plaintiff, unless the wall that forms the southwesterly side of the plaintiff's house, and a part of the northeasterly side of that of the defendant, can be considered a party wall which he could properly use in the erection of his building; and this raises the principal question argued by the defendant on his exceptions to the master's report.
The length of the entire wall is 34.75 feet, of which 13 feet running westerly from a passageway, forms the exterior wall of an ell of a house of the defendant, which was on his land before he began to build. In the report no details are given of the dimensions or method of construction of the new building, and whether it was an enlargement of his old house or a separate building is not stated, but, by the plan, the whole area of his lot on this side appears to have been used for this purpose at the date of filing the bill. When, in 1845, John Fleming, under whose will the plaintiff claims title individually and as trustee, built the house on his lot, which is still standing, he used this wall of the ell to its full height, of two stories, as a part of the southwesterly wall of his house, and added a third story, so that, when the house was finished the wall, for its entire length, formed the southwesterly side of it, as well as the northeasterly side of the ell. At that time the land now owned by the defendant was held by Ebenezer Eaton, a predecessor in title, and it may be inferred that because Fleming used the wall of the ell as a part of the construction of his house, and to which he either had no title, or his title was not admitted, a controversy arose between them; and, to settle the dispute, Eaton, April 17, 1845, released and conveyed to Fleming 'a certain small strip of land four inches wide and about thirty-five feet long * * * adjoining the southerly line of said Fleming land, and running from a back passageway that leads westerly from Cross street under the brick wall lately erected by said Fleming so far as to embrace one half part, to wit: the southerly half of said wall,' followed by a description by metes and bounds. Since then, for a period of more than 55 years, this portion of the wall has been used by the owners of the adjacent lands for the support of their respective houses.
It is the contention of the defendant that this release was an agreement in form sufficient to make the structure a party wall, but it only purports to define the line of division and contains no language that is susceptible of such a construction, and the master finds '* * * that said release is not in any sense a party wall agreement,' and this finding and ruling was right. But he further states 'that it has not been made a party wall * * * by implication or by prescription,' and it remains to be determined whether, under the facts reported, it became a party wall by implication of law.
The decree appointing a master did not require him to report the evidence, and a request for such an order was afterwards denied, but all the facts on which he bases these findings are apparently reported for the purpose of presenting the principal question raised and argued before him; and it is open for us to determine on the report whether the last finding, which includes rulings of law, can be sustained. Parker v. Nickerson, 137 Mass. 487; Goodell v. Goodell et al., 173 Mass. 140, 146, 148, 53 N.E. 275.
If, before this deed was given, there were conflicting claims as to the boundary line, and either of the parties could have contended that the other had built on his land, or Eaton alone may have been a trespasser, yet under it there can be but one construction as to its effect in determining the boundary of each estate, for a deed poll, being given by one and accepted by the other, was as effectual as if a formal indenture had been signed; and thereafter they occupied and enjoyed their estates within the line established by the deed, and the completed wall as it then stood and in use was divided longitudinally, one-half being on the land of each of them. Newell v. Hill, 2 Metc. 180; Carroll v. St. John's Total Abstinence & Mutual Relief Society, 125 Mass. 565, 566; Boston v. Richardson, 13 Allen, 146, 154.
But if each was seised of a moiety of the wall, and nothing more, and no right of support or shelter had been acquired, either could have taken down his house when he pleased, without regard to the injury that he might thereby cause his neighbor's property. Adams v. Marshall, 138 Mass. 228, 52 Am. Rep. 271; McKenna v. Eaton, 182 Mass. 346, 347, 65 N.E. 382, 94 Am. St. Rep. 661. Compare Everett v. Edwards, 149 Mass. 588, 593, 22 N.E. 52, 5 L. R. A. 110, 14 Am. St. Rep. 462, ad finem.
An extended discussion is not required to show that it is not reasonable to suppose that the parties contemplated such a result, or that either can be found to have intended that the other could at his pleasure practically destroy the wall by removing his half, for there were buildings on both lots at the time, and the wall had become a part of their construction; and if either had owned both estates, and subsequently sold one or both to different owners under a similar description, there would seem to be no doubt that this portion would be deemed a party wall. Carlton v. Blake, 152 Mass. 176, 25 N.E. 83, 23 Am. St. Rep. 818; Everett v. Edwards, ubi supra.
But where estates are so situated, there is no legal distinction between a mutual grant of separate owners, or a grant by one who owns both, as the law implies the reservation of an easement in the half of the wall granted; and a grant of the corresponding easement in the half retained, and this part, at least, of the wall could not thereafter be held to be simply a measure of division, or a boundary between the houses, because it had become physically a part of each, and this determined its character. Carlton v. Blake, ubi supra; Knight v. Purcell, L. R. 11 Ch. Div. 412. See, also, Rogers v. Sinscheimer, 50 N.Y. 646.
If no change took place in the ownership of the land by reason of the fact that any portion of it was covered by the wall, so that the several titles to the property remained the same, yet the title of each owner, of necessity, became subject to the easement of the other to support his building by means of the common structure, even though for this purpose not much more than a third was used.
After the prescriptive period has ripened, a division wall between buildings may take on the character of a party wall, and be treated as such, though the right thus acquired is limited to the exact use of it by the adjoining owner, who claims the easement. Phillips et al. v. Bordman, 4 Allen, 147; McLaughlin v. Cecconi, 141 Mass. 252, 5 N.E. 261; Schile v. Brokhahus, 80 N.Y. 614-618; McVey v. Durkin, 136 Pa. 418, 20 A. 541.
But the master, instead of giving to the defendant the full benefit of this right, which would have been sufficient to support his claim of prescription, limited it to only so much of the wall that supported the floor timbers of the ell notwithstanding...
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