Johnson v. Minnesota Tribune Company

• Decision Date: 11 February 1904
• Docket Number: 13,638 - (120)
• Parties: ALBERT JOHNSON v. MINNESOTA TRIBUNE COMPANY
• Court: Minnesota Supreme Court

98 N.W. 321

91 Minn. 476

ALBERT JOHNSON v. MINNESOTA TRIBUNE COMPANY

Nos. 13,638 - (120)

Supreme Court of Minnesota

February 11, 1904

Action in ejectment in the district court for Hennepin county and in which plaintiff also sought to recover $2,000 for injuries to his property. The case was tried before Brooks, J., who made findings of fact and as conclusions of law found that plaintiff was entitled to recover $75 as damages but to no equitable relief. From a judgment entered pursuant to the findings, plaintiff appealed. Reversed, and remanded for further proceedings.

SYLLABUS

Party Wall.

Ordinarily when adjoining owners at their joint expense erect a party wall standing on both sides of the line, they are not owners in common of the same, but each owns in severalty so much of the wall as stands on his own land, subject to an easement or servitude in favor of the other party to have it maintained as a party wall.

Front Wall.

A front wall, however, although tied or fastened to a party wall, is no part of it, but is distinct and apart from it. And it is well settled that neither of the owners of a party wall has the right to extend the front wall of his own building beyond the line which marks the division between the properties.

Ejectment.

Where one of the owners of a party wall has extended the base of his own building beyond the division line, has inserted a post on the sidewalk in front of the building belonging to the other party, has cut out and removed portions of the front wall of such building, and has then proceeded to fill and occupy the spaces so made by projecting thereon the ornamental moldings of his own building, an action of ejectment will lie in favor of the party who has thus been dispossessed of portions of his premises.

Thomas Canty and S. A. Reed, for appellant.

Ejectment will lie to remove overhanging projections. 10 Am. & Eng Enc. (2d Ed.) 531; Murphy v. Bolger, 60 Vt. 723; McCourt v. Eckstein, 22 Wis. 148; Stedman v. Smith, 8 El. & Bl. 1. The subjection of the property in any form to the will of the defendant is a sufficient possession by him to sustain ejectment. 10 Am. & Eng. Enc. (2d Ed.) 529; Quicksilver Min. Co. v. Hicks, 4 Saw. 688; French v. Robb, 67 N.J.L. 260; Flanniken v. Lee, 23 N.C. 293. The maxim "de minimis non curat lex" does not apply to an action brought to vindicate the right of title to real estate, no matter how small in value or amount the interest involved. Pindar v. Wadsworth, 2 East. 154; Harrop v. Hirst, L.R. 4 Exch. 43.

The intrusion of all parts and appurtenances of defendant's building on to plaintiff's premises and the maintaining of them there constitute but one transaction, and clearly, the right to have them removed constitutes but one cause of action even though some of the parts rest on plaintiff's soil and some of them rest in part on his building and project in part into the air above his premises. He is not entitled to bring an action of ejectment to remove a part and another action in equity to remove another part of these odds and ends, parts of plaintiff's building.

Both parties had a right to a jury trial as to the questions of the amount of plaintiff's damages. And even if, as the court intimates in his last memorandum, the claims of plaintiff for relief were partly equitable, they could and should still be all joined in one action. First Division v. Rice, 25 Minn. 278; Bell v. Mendenhall, 71 Minn. 331, 334; Piper v. Packer, 20 Minn. 245 (274); Holmes v. Campbell, 12 Minn. 141 (221); Montgomery v. McEwen, 7 Minn. 276 (351); Finch v. Green, 16 Minn. 315 (355).

When the whole case is presented at the trial, all of it which is not under the rules of law or the order of the court submitted to the jury, remains for the judge to try. Schmitt v. Schmitt, 31 Minn. 106; Armitage v. Pulver, 37 N.Y. 494; Davis v. Morris, 36 N.Y. 569; Devlin v. New York, 4 Misc. (N.Y.) 106; Kirkwood v. First National, 40 Neb. 484; Kirkwood v. Exchange National, 40 Neb. 497; Clark v. Clark, 86 Mo. 114.

Rome G. Brown and Charles S. Albert, for respondent.

The acts of defendant found by the court did not amount to an ouster, and ejectment did not lie. Ejectment cannot be used to enforce rights to an incorporeal hereditament, nor to regulate those rights as between the parties. Wood v. Truckee, 24 Cal. 488; Kurkel v. Haley, 47 How. Pr. 75; Judd v. Leonard, 1 D. Chip. (Vt.) 204.

The trial court was correct in denying equitable relief. The case was treated by both parties and by the court up to a time after the filing of the decision, not as an equitable case, but as one solely involving the question of whether the plaintiff should have his remedy in ejectment and for damages. The cause ought not therefore at this time, without the consent of both parties, to be converted into a suit in equity, where, regardless of their legal rights, relief might be wholly denied or made dependent upon a careful survey of all the facts and circumstances disclosed. Rahn v. Milwaukee, 103 Wis. 467, 471.

OPINION

COLLINS, J.

Plaintiff and defendant own adjoining buildings fronting on Fourth Street South, Minneapolis. There is a party wall between these buildings, which stands, according to the findings of the court, upon the line; one-half being on plaintiff's land, the other upon defendant's. When this party wall was erected, one building occupied the entire space now covered by both with a continuous front wall of red pressed brick. Fire partly destroyed that part of the building owned by defendant corporation, leaving the party wall intact. It then tore down what remained of the front wall of its part of the building to a perpendicular line in the middle of the party wall, and then rebuilt, constructing a front wall of white glazed brick up to the perpendicular line, with a marble base resting on the ground, several moldings, and a cornice of galvanized iron; these moldings and cornice being at various heights from the ground, and serving simply for ornamentation. The base not only extended several inches beyond the dividing line and onto plaintiff's land, but it was projected out upon the sidewalk and in front of his building. And at different places the defendant cut into and removed portions of the front wall of plaintiff's building and then proceeded to fill and occupy the spaces so that portions of the moldings in defendant's front wall encroached on plaintiff's from four to thirteen inches, projecting into and in front of the same. The defendant also inserted an iron post in the sidewalk in front of plaintiff's building upon which to rest one end of an iron railing, put in evidently to protect the marble base before mentioned.

Alleging this intrusion to be wrongful, and committed without his consent, plaintiff brought this action, in which he set out in the complaint in detail the various acts of defendant by which it had ousted him from parts of his building, and demanded judgment for the possession of so much thereof as had been encroached upon and occupied by the marble base and other projections and by the iron post, and also for a certain sum as damages, and for such other relief as to the court seemed just and proper.

The answer contained a denial of any act whereby plaintiff had been ousted from any part of his premises, and then set forth two equitable defenses.

With these issues the case was tried to a jury, but at the close of the testimony the jury was discharged by consent, and the case was submitted to the court for determination. The court found, among other things, that the center of the party wall was the true dividing line between plaintiff and defendant,...