J. C. Penney Co. v. McCarthy

• Decision Date: 18 June 1931
• Docket Number: 14,081
• Citation: 176 N.E. 637,93 Ind.App. 609
• Parties: J. C. PENNEY COMPANY ET AL. v. MCCARTHY ET AL
• Court: Indiana Appellate Court

176 N.E. 637

93 Ind.App. 609

J. C. PENNEY COMPANY ET AL. v. MCCARTHY ET AL

No. 14,081

Court of Appeals of Indiana

June 18, 1931

Rehearing denied October 6, 1931.

Transfer denied January 6, 1932.

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 a judgment for plaintiffs, the named defendants appealed.

Affirmed.

Kessinger & Hill, Curtis G. Shake and Joseph W. Kimmel, for appellants.

Padgett & Padgett, Claude E. Gregg, Lindley & Bedwell and Harry R Lewis, for appellees.

LOCKYEAR J. Bridwell, J., not participating.

OPINION

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, Indiana.

The real estate in question is known as a part of lot 126, in said city. Appellee Eluere owns the west part of said lot, and 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, 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, appellee Prosper P. F. Eluere was owner of part of said lot 126, which part was situated immediately west of the said portion of said lot belonging to 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 the part of said lot belonging to 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 were located on the dividing line between the portions of said lot belonging to appellant J. C. Penney Company and 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 said appellant J. C. Penney Company and its immediate and remote grantors and by 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 said J. C. Penney Company or said Eluere, and by agreement between the then owners of said respective parts of said real estate, and was thereafter used by both the immediate and remote grantors of said J. C. Penney Company and 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 May 12, 1928, there had been erected and maintained a two-story brick building on that part of said lot 126 owned by appellant J. C. Penney Company, the west wall of which building was the aforesaid party wall; that, on or about February 21, 1928, a part of the building situated on the part of the lot belonging to said J. C. Penney Company was destroyed by fire, at which time the said building and portion of said lot belonged to one John D. LaCroix; that, on April 16, 1928, the said John D. LaCroix conveyed by deed said portion of said lot to the said J. C. Penney Company, together with all his rights, title and 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 August 27, 1927, appellee Eluere leased and rented to one Violet Robinson the said two-story building situated on that part of lot 126 belonging to said Eluere for a period of five years from September 10, 1927, to September 9, 1932, and the said Violet Robinson, on or about September 10, 1927, subleased and rented to the appellees a portion of said building, and the appellees went into possession of said building on or about September 10, 1927, and occupied a part of said premises as a baby shop, and were so occupying the same on May 12, 1928, and had a stock of merchandise, furniture and fixtures in said building of the value of $ 15,000; that, prior to May 12, 1928, 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 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 said J. C. Penney Company, did, on and prior to May 12, 1928, commence and did dig, excavate, remove and haul away the earth, gravel, clay and lateral support to the depth of six to eight 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 such said depth and length and 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 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 appellee Eluere had full knowledge during all of said time that said appellants, the 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 removal of 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 securing said party wall from caving in and collapsing, and that said Eluere did wrongfully object, forbid and prevent the said appellants, the J. C. Penney Company and Samuel L. Kirk and their servants and employees, from underpinning, shoring up and bracing said party wall, which they offered to do; that, by reason of said Eluere's...