Jackson v. Bruns

• Decision Date: 12 February 1906
• Citation: 106 N.W. 1,129 Iowa 616
• Parties: J. E. JACKSON, Trustee, Appellant, v. HENRY BRUNS
• Court: Iowa Supreme Court

106 N.W. 1

129 Iowa 616

J. E. JACKSON, Trustee, Appellant, v. HENRY BRUNS

Supreme Court of Iowa, Des Moines

February 12, 1906

Appeal from Keokuk District Court.-- HON. BYRON W. PRESTON, Judge.

ACTION in equity to compel defendant to repair a defective wall in a building of which defendant is the owner of the first story and the plaintiff the owner of the second story. After hearing the evidence the trial court dismissed plaintiff's petition on the merits and rendered judgment for defendant. Plaintiff appeals.-- Affirmed.

Affirmed.

Talley & Hamilton, for appellant.

C. H Mackey and Stockman & Hamilton, for appellee.

OPINION

MCCLAIN, C. J.--

It appears from the evidence that in 1883 the defendant was the owner of the east one-third, and one John Stroup of the west two-thirds, of a 66-foot lot in the town of Richland, and that each was proposing to erect a building on his portion of such lot. Thereupon some agreement was entered into (the exact terms not appearing in the record) by which defendant, who only needed a one-story building, should permit said Stroup to erect a second story over defendant's building, as well as over the first story of his own building such second story to be used as a public hall. This arrangement was carried out, and plaintiff, as trustee, is the owner of the interest of said Stroup in the entire building or block erected in pursuance of this arrangement.

It further appears that the foundation and walls of the first story in the southeast corner of the block are cracked and threaten to give way, so that the support which they have furnished to plaintiff's portion of the second story over defendant's building will be lost. The cause of this present defective condition of the walls in the first story of defendant's part of the building does not clearly appear; but the evidence is insufficient to establish any negligence in the original construction of defendant's walls, and there is no evidence of active wrong on the part of defendant, causing the present condition. We think it is clearly shown that by reason of the gradual uneven sinking of the foundation and the ordinary decay and deterioration due to the action of the elements, and without any fault on the part of defendant, the walls have become insufficient to furnish a safe and secure support to the second story of the building.

Under these circumstances the plaintiff asked that defendant be required "to rebuild and repair said defective walls in such a manner that they will be a good and substantial support for plaintiff's said building." The relief thus asked was denied, and the concrete question argued by counsel and to which our attention must be directed is whether the owner of the second story of a building is entitled in equity to a decree compelling the owner of the first story to keep in repair the foundation and walls of the first story for the purpose of furnishing support to the second story.

Any act of the owner of the lower story which should impair the support of the upper story to the injury of its owner would without doubt furnish the basis of an action for damages. Richards v. Rose, 9 Exch. 216; Brown v. Windsor, 1 Cromp. & Jer. (Exch.) 20; Pierce v. Dyer, 109 Mass. 374 (12 Am. Rep. 716). But the owner of the second story does not have a perpetual easement, so as to be entitled to have the owner of the lower story replace his walls, in case of total destruction without his fault, for the purpose of furnishing support to the upper story of the other party. This is the rule with regard to party walls, and the reasoning seems to be equally applicable to such a case as this, where the owner of the second story is entitled to the use of the walls constructed by the owner of the first story. Sherred v. Cisco, 4 Sandf. (N.Y.) 480; Partridge v. Gilbert, 15 N.Y. 601 (69 Am. Dec. 632); Heartt v. Kruger, 121 N.Y. 386 (24 N.E. 841, 18 Am. St. Rep. 829, 9 L.R.A. 135); Hoffman v. Kuhn, 57 Miss. 746 (34 Am. Rep. 491); Odd Fellows' Ass'n v. Hegele, 24 Ore. 16 (32 P. 679.) The owner of one portion of a building cannot recover damages against the owner of another portion (in the absence of any contractual relation between them giving rise to a duty on the part of the latter to keep his portion of the premises in repair) for damages resulting from the failure to make repairs. Cheeseborough v. Green, 10 Conn. 318 (26 Am. Dec. 396); Pierce v. Dyer, 109 Mass. 374 (12 Am. Rep. 716). Nor can the owner of one portion compel the owner of another portion to contribute to or bear the expense of making necessary repairs. Loring v. Bacon, 4 Mass. 575; Ottumwa Lodge v. Lewis, 34 Iowa 67. In Campbell v. Mesier, 4 Johns. Ch. (N.Y.) 335 (8 Am. Dec. 570) the equitable right to contribution is upheld; but that case has not been followed, in New York or elsewhere. In the case of a party wall it has been held that either owner may repair or replace (Schile v. Brokhahus, 80 N.Y. 614), but that neither one is bound to repair for the purpose of protecting the property of the other. Colebeck v. Girdlers Co., 1 Q. B. D. 234.

While none of these propositions exactly fits the case before us, we think they clearly indicate the conclusion that the defendant in this case was under no obligation to keep his walls in repair for the purpose of furnishing a continuing support to plaintiff's part of the building. As was said by Denio, C. J., in Partridge v. Gilbert, 15 N.Y. 601, 614 (69 Am. Dec. 632), with reference to a party wall:

The right of one of the adjoining owners to the support of the part of the wall standing on the land of the other owner existed as long as the wall continued to be sufficient for that purpose and the respective buildings remained in a condition to need and to enjoy that support. When this ceased to be the case, and it became necessary to take down the wall and rebuild the stores, either the interest of each proprietor in the land of the other ceased with the existence of the state of things which had created it, or each was entitled to call upon the other to contribute towards rebuilding the wall on the same site, and, in case of his default, to build it himself and call upon the other owner to reimburse him one-half of the expense. . . . I do not perceive any solid distinction between a total destruction of the wall and buildings, and the state of things which should require the whole to be rebuilt from the foundation. In either case there is great force in saying that the mutual easements have become inapplicable, and that each proprietor may build as he pleases upon his own land, without any obligation to accommodate the other. Circumstances may have materially changed since the adjoining proprietors were content with such walls as would have supported two adjoining dwellings. If the right of mutual support continues, by means of the original arrangement, or by prescription, it is for just such an easement as was originally conceded, or which has been established by long enjoyment. But in the changing condition of our cities and villages it must often happen, as it did actually happen in this case, that...