Harber v. Evans

• Decision Date: 17 November 1890
• Citation: 14 S.W. 750,101 Mo. 661
• Parties: Harber v. Evans, Appellant
• Court: Missouri Supreme Court

14 S.W. 750

101 Mo. 661

Harber v. Evans, Appellant

Supreme Court of Missouri

November 17, 1890

Appeal from Grundy Circuit Court. -- Hon. G. D. Burgess, Judge.

Affirmed.

T. A Witten and Geo. Hall for appellant.

(1) The principal point we make in this case is that the petition does not state facts sufficient to entitle the appellee to the relief prayed for and granted by the court, or that the agreement set forth in appellee's petition does not prohibit appellant from leaving openings or windows in the wall, and that in the absence of such prohibition, either in the agreement or by statute, appellant has the right at common law to leave said openings and windows. The only authority we have been able to find bearing directly upon the point is a Delaware case in which the court makes the following declaration: "Neither at common law nor by the Delaware revised code, 228, relating to the rights of adjacent owners, is a person prohibited from constructing windows in a division wall, although the privacy and convenience of the adjoining premises is thereby impaired." Pierce v. Lemon, 2 Houst. (Del.) 519. (2) A party wall can only become such in one of three ways, viz.: By statute, agreement or by prescription. List v. Hornbrook, 2 West Va. 346; Washburn on Easements and Servitude, 548. And this wall being created by contract, the intention of the parties must be gathered from the entire instrument. Shultz v. Beety, 40 Mo. 69. The parties must make their own contracts and courts cannot relieve against injudicious ones. Webb v. Ins. Co., 24 Mo. 3. (3) Either party has the right to make any repairs changes or additions to a party wall (without injury to others) unless barred by the agreement or by statute. Brooks v. Curtis, 10 Am. Rep. 545; Fettretch v Leamy, 9 Bosw. (N. Y.) 525; 2 Wait's Act. & Def. 724, 725; Partridge v. Gilbert, 69 Am. Dec. 632; Dauenhauer v. Devine, 32 Am. Rep. 627.

Stephen Peery and E. M. Harber for respondent.

A party wall is a wall in common erected on the line between two adjoining estates belonging to different persons for the use of both estates; it must be a solid wall without openings, and the owners of a "party wall" will continue to own the land, as before the building of the wall, in severalty. As the agreement set out in plaintiff's petition provides for a "party wall," the appellant cannot use respondent's lands for the erection of any other wall, or a wall for his exclusive use and benefit, and windows have no place in such a wall; as the contract does not provide for the placing of windows, doors and other holes therein the same must be a solid wall. Dauenhauer v. Devine, 51 Tex. 580; 32 Am. Rep. 657; Sullivan v. Graffort, 35 Iowa 531; St. John v. Jweeney, 59 How. Pr. (N. Y.) 175; 11 U. S. Dig. New Series, 674; Volner's Appeal, 61 Pa. St. 118; Vansycle v. Fryon, 6 Phil. (Pa.) 401; Fettretch v. Leamy, 9 Bosw. 510; 2 Wait's Dig. N. Y. Rep. 1183; 2 Wait's Act. & Def., p. 724; Bouvier's Law Dict. [15 Ed.] p. 377. There it is said a party wall can only be built for mutual support; painting a sign on it is unlawful, referring to 2 W. N. C. 333; Rankin v. Charless, 19 Mo. 490; Tiedeman on Real Prop., sec. 620, p. 448; Nash v. Kemp, 12 Hun, 597; Mendell v. Delana, 7 Metc. 176. The erection of the wall, as proposed by appellant, would have been a continuous trespass and nuisance, and injunction was respondent's proper remedy. High on Injunctions, secs. 547-8; Dauenhauer v. Devine, 51 Texas, 480; Sullivan v. Graffort, 35 Iowa 531; R. S. 1879, sec. 2732, and other cases above cited. Then it was alleged in the petition, plaintiff was without any adequate remedy at law and that defendant was insolvent, and, while these facts were denied by the answer, they were again asserted and put in issue by the replication, and the court having found all of said issues for respondent, its action cannot be reviewed in this proceeding, and in either of these cases, or even if the damages of respondent were not capable of fair estimation and were such that could not be fairly (fully) compensated, equity would interfere. Railroad v. City of Springfield, 85 Mo. 674; Carpenter v. Grisham, 59 Mo. 247.

OPINION

Sherwood, J.

-- The object of this proceeding was to prevent the defendant, then engaged in building a party wall, from placing therein, in the second and third stories thereof, windows and other openings, in violation of an agreement theretofore entered into between the parties litigant as follows: "This agreement made and entered into this the twenty-sixth day of June, A. D. 1886, by and between Edgar M. Harber and Lizzie D. Harber, his wife, of Grundy county, Missouri, parties of the first part, and Edward Evans and Nettie Evans, his wife, of Grundy county, Missouri, parties of the second part, witnesseth: That whereas the said Edgar M. Harber of the parties of the first part and Edward Evans, party of the second part, are owners of adjacent lots and parcels of ground in lot sixteen (16), in the town of Trenton, in Grundy county, Missouri, and for the purpose of building a party or middle wall between the lots or parcels of ground so owned by the last-named parties, they agree with each other that the said Edward Evans, his heirs, executors or assigns build the southwest wall of the building he now proposes to build, and has in process of erection, so that the center of said wall shall be on the line that divides their said lots, that is to say, that each party shall furnish one-half the ground covered by said wall, and, when so built, said wall shall in all respects be a party wall between said lots and said parties. Or in case said Edward Evans his heirs, administrators, executors or assigns should not complete the building he now has in process of erection in a reasonable time then all the rights herein granted to him shall also attach to the said Edgar M. Harber, his heirs, executors, administrators or assigns to commence the erection of and build a wall as above specified, and the rights and privileges to commence and build said wall shall attach alike to both parties hereto, and it is further agreed that whenever either party shall erect a wall as heretofore specified the other party or his heirs, executors, administrators or assigns shall have the right to join onto said wall by payment to the opposite party of one-half the value of said wall at the time of so joining to same, or one-half the value of such portion of said wall as he shall attach to. In witness," etc.

The answer admitted the building of the wall with openings as alleged, but contended that this was no violation of the agreement thereby. The temporary injunction granted at the outset of the litigation was, on the final hearing, made perpetual.

Undefined by statutory regulations or by the agreement of the contracting parties, what is the meaning of the words "party wall"? is one of the salient questions and the chief bone of contention in this cause.

An eminent author says: "By party walls are understood walls between two estates which are used for the common benefit of both." 2 Wash. Real. Prop. [5 Ed.] 385. While this definition is sufficiently accurate and comprehensive for ordinary purposes, it scarcely meets the requirements of the case at bar.

Indeed, it has been said that the term "party wall" and the rights which the owner or grantee acquires by mere force of the employment of that term in a grant or covenant have never been judicially defined, but it was also said in the same case that a "party wall" when used in such an instrument and in its general ordinary signification means a dividing wall between two houses, to be used equally, for all the purposes of an exterior wall, by both parties, that is by the respective owners of both houses. Fettretch v. Leamy, 9 Bosw. 510. These utterances, though but those of a single judge, appear to have met the approval of the learned author already cited. Wash. Easements [3 Ed.] 567.

The central idea, the true, comprehensive and undivided...