J.C. Penney Co. v. McCarthy

• Decision Date: 18 June 1931
• Docket Number: No. 14081.,14081.
• Citation: 176 N.E. 637,93 Ind.App. 609
• Parties: J. C. PENNEY CO. et al. v. McCARTHY et al.
• Court: Indiana Appellate Court

93 Ind.App. 609

176 N.E. 637

J. C. PENNEY CO. et al.

v.McCARTHY et al.

No. 14081.

Appellate Court of Indiana, in Banc.

June 18, 1931.

Appeal from Sullivan Circuit Court; Charles D. Hunt, Special Judge.

Action by Claire McCarthy and another against the J. C. Penney Company, Samuel L. Kirk, and another. From the judgment, defendants named appeal.

Affirmed.

Kessinger & Hill, of Vincennes, for appellants.

Padgett & Padgett, of Vincennes, for appellees.

LOCKYEAR, J.

This action deals with the reciprocal rights and duties of owners of adjoining real estate in relation to a party wall between two pieces of real estate fronting on the south side of Main street in Vincennes, Ind.

The real estate in question is known as a part of lot 126, in said city. The appellee Eluere owns the west part of said lot, and the appellant J. C. Penney Company owns the east part of said lot. There was a store building on the east tract separated from the one on the west tract by a brick wall either on or near the dividing line, and which wall was an integral part of both buildings.

The complaint alleges that on the day in question, and for more than five years theretofore, the appellee Prosper P. F. Eluere was the owner of part of said lot No. 126, which part was situated immediately west of the said portion of said lot belonging to the appellant J. C. Penney Company, and joined by said lot on the west side thereof, and was about 20 feet in width from east to west and extended back the full width of said lot, and upon which part of said lot belonging to the said appellee Eluere was a two-story brick building, which building fronted to the north and to Main street, and was about 20 feet in width and extended back from Main street a distance of about 105 feet, and that the east foundation and wall of said Eluere building was located on the dividing line between the portions of said lot belonging to the appellant J. C. Penney Company and the said appellee, Eluere; one half thereof being upon the property of the said Eluere, and the other half upon the property of the J. C. Penney Company, and was and had been for more than 20 years theretofore a party wall and used as a party wall by the said appellant J. C. Penney Company and his immediate and remote grantors and by the said appellee, Eluere and his immediate and remote grantors. That said party wall was an ancient wall and had been erected by a remote grantor either of the said J. C. Penney Company or the said Eluere and by agreement between the then owner of said respective parts of said real estate and was thereafter used by both the immediate and remote grantors of the said J. C. Penney Company and the said Eluere as a party wall and for support of the respective buildings on each of said parts of said real estate, and was ever thereafter maintained, kept, and used as such party wall by the respective owners thereof.

That prior to the said 12th day of May, 1928, there had been erected and maintained a two-story brick building on that part of said lot No. 126, owned by the appellant J. C. Penney Company, the west wall of which building was the aforesaid party wall. That on or about the 21st day of February, 1928, a part of the building situated on the part of the lot belonging to the said J. C. Penney Company was destroyed by fire, at which time the said building and portion of said lot then belonged to one John D. La Croix. That on the 16th day of April, 1928, the said John D. La Croix conveyed by deed said portion of said lot to the said J. C. Penney Company together with all his rights, title, easements in, and to all walls of adjoining buildings, which included an easement in said party wall on the east side of the said Eluere building.

That theretofore, to wit, on the 27th day of August, 1927, the appellee Eluere leased and rented to one Violet Robinson the said two-story building situated on that part of lot No. 126 belonging to said Eluere for a period of five years from the 10th day of September, 1927, to the 9th day of September, 1932, and the said Violet Robinson on or about the 10th day of September, 1927, subleased and rented to the appellees a portion of said building and the appellees went into possession of said building on or about the 10th day of September, 1927, and occupied a part of said premises as a baby shop, and were so occupying the same on the 12th day of May, 1928, and had a stock of merchandise, furniture, and fixtures, in said building of the value of $15,000.

That prior to the 12th day of May, 1928, the appellant J. C. Penney Company had contracted with and had employed Samuel L. Kirk to remove the part of the building damaged by fire as aforesaid, situated on that part of said lot belonging to said appellant, J. C. Penney Company, and to excavate the earth and construct a basement on that part of its said lot, and to erect a building thereon, and in carrying out said contract and employment of the said J. C. Penney Company did on and prior to the said 12th day of May, 1928, commence and did dig, excavate, remove, and haul away the earth, gravel, clay, and lateral support to the depth of 6 to 8 feet, and to the full length of the said party wall between the premises of the said J. C. Penney Company and the said Eluere, and did dig, excavate, and remove the earth and gravel to said depth and length so close to the said building of the said Eluere as to weaken the foundation and support thereof, and so near the foundation of said party wall that a portion of said party wall caved in and collapsed and caused a portion of said building occupied by the appellees to collapse and fall, all without the consent of the appellee Eluere, and without the consent of the appellees, thereby damaging and destroying appellee's said stock of merchandise, furniture, and fixtures to the amount and value of $15,000.

That the appellee Eluere had full knowledge during all of said time that said appellant J. C. Penney Company and Samuel L. Kirk were so excavating and removing the earth, gravel, and clay which formed the lateral support to said party wall and east wall of his said building so occupied by the appellees, and knew or could have known by the exercise of reasonable diligence that the removalof said earth and gravel and lateral support of said party wall by the other defendants would weaken and endanger said party wall and probably cause said party wall and his said building to subside, collapse, and fall, and knew or could have known by the exercise of reasonable diligence that it would be necessary for the persons making said excavation and removing the lateral support of said wall to protect said party wall and the foundation thereof by underpinning, shoring, propping, or otherwise secure said party wall from caving in and collapsing, and that the said Eluere did wrongfully object, forbid, and prevent the said appellants, J. C. Penney Company and ...