Glover v. Mersman
| Decision Date | 22 May 1877 |
| Citation | 4 Mo.App. 90 |
| Parties | SAMUEL T. GLOVER, TRUSTEE, ETC., Plaintiff in Error, v. JOSEPH J. MERSMAN, Defendant in Error. |
| Court | Missouri Court of Appeals |
1. A party-wall is a wall between two estates which is used for the common benefit of both.
2. Where A., under a license from B., built a wall upon a line dividing the estates of the parties, upon a written stipulation to the effect that, upon building a house against the wall and paying to A. one-half of the cost of the wall, B. should have the right to use the same as a party-wall, held that, until this condition was fulfilled, the wall was not a party-wall, but the property of A., and that when the wall, through the negligence of A., fell and injured B.'s property, A. was liable for the damages.
ERROR to St. Louis Circuit Court.
Reversed and remanded.
GLOVER & SHEPLEY and N. HOLMES, for plaintiff in error: Party wall.-- Fitch v. Leamy, 9 Bosw. 530; Masson's Appeal, 70 Pa. St. 26; O'Daniel v. Baker's Union, 4 Houst. 503; Walls v. Hawkins, 5 Penn. 20; Shirred v. Cisco, 4 Sandf. 485. An action on the case in tort is the proper action.-- Burnett v. Lynch, 5 Barn. & Cress. 602; Gorham v. Gross et al., 117 Mass. 442; Chamitter v. Robinson, 4 Exch. 169; Klander v. McGrath, 35 Pa. St. 128.
CLINE, JAMISON & DAY and F. A. CLINE, for defendant in error: Party-walls.-- Orman v. Day, 5 Fla. 385; Ingles v. Bringhurst, 1 Dall. 341, 345; Gorham v. Gross et al., 117 Mass. 442. Joint owners of, are equally bound to repair.-- Campbell v. Mesier & Dunstan, 4 Johns. Ch. 333; Winslow v. Fuhrman, 4 Am. Law Rec. 166. And if the wall, through negligence, becomes dangerous, the negligence is joint, not several.-- Peyton et al. v. The Mayor, etc., 9 Barn. & Cress. 725; 1 Add. on Torts, 213.
The petition, after stating in effect that, on December 6, 1876, plaintiff and defendant were owners and, by themselves or tenants, occupants of adjoining lots, sets forth that “the defendant had, previously to the time aforesaid, erected upon the dividing line between said lots a wall, standing in equal parts on each side of said lots, under an agreement in writing between himself and the plaintiff, dated May 30, 1871, whereby it was stipulated that whenever, after the completion of the said wall, the plaintiff, or his legal representatives, should desire to use the same, or any part or portion thereof, by erecting and building a new house against or into the same, he or they should have the right so to do, by paying and refunding to the defendant one-half of what it would then cost to build such wall, or so much or such portion thereof as the plaintiff might desire to use for such new building; all which, among other things, will appear by the said agreement, herewith filed; that the plaintiff has not yet desired to use said wall for erecting such new house, nor has he paid or refunded the aforesaid cost of any part of said wall. Plaintiff further states that on the said 6th day of December, 1876, the building on the said lot of defendant took fire and was burned down, whereby said wall was left standing in an injured, weakened, and dangerous condition, to the height of four stories or more, and so threatening and liable at any time to fall upon the buildings of plaintiff on his said lot; and by reason of the premises, it became and was the duty of the defendant to prop, support, or otherwise protect and secure the said wall, and prevent the same from falling and doing damage to the plaintiff's said property.
“Plaintiff further states that the defendant, wholly neglecting his duty in the premises, negligently and carelessly omitted to prop, support, or in any other way secure or protect the said wall, but suffered the same to stand, in a dangerous and threatening condition, for the space of nine days or more, when, by reason of the carelessness and negligence of the defendant in the premises, the said wall suddenly fell upon, crushed, injured, and destroyed the buildings, structures, and property of the plaintiff on his said lot, whereby plaintiff sustained damage in his said reversionary estate and interest to the amount of twelve hundred and fifty dollars, and in the further sum of five hundred dollars on account of the loss of rents and income from said property; for all which, together with costs of suit, he prays judgment.”
The defendant demurred to this petition, as not...
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