Mackey v. Harmon

• Decision Date: 01 October 1885
• Citation: 34 Minn. 168
• Parties: FRANK J. MACKEY and another <I>vs.</I> ELIJAH A. HARMON and Wife.
• Court: Minnesota Supreme Court

34 Minn. 168

FRANK J. MACKEY and anothervs.

ELIJAH A. HARMON and Wife.

Supreme Court of Minnesota.

October 1, 1885.

Plaintiffs brought this action in the district court for Hennepin county to recover damages for an alleged breach of a covenant against incumbrances contained in a warranty deed. The incumbrance claimed to exist is a party-wall agreement, and plaintiffs seek to recover as damages the sum of $850, the amount paid by them for the right to use a party-wall situated, in part, on the premises conveyed by the warranty deed.

The action was tried by Lochren, J., without a jury, and upon the facts as found by him, which are recited in the opinion, judgment was ordered for plaintiffs for the full amount claimed. The conclusions of law on which judgment was ordered, were (1) that the right acquired by Hurlburt, under the party-wall agreement, to build half of the wall on Harmon's land is an easement upon so much of Harmon's land as is covered by the wall; (2) that by the same agreement Harmon acquired "a corresponding and compensating easement" in so much of Hurlburt's land as is covered by the same wall, and "the mutual easement appurtenant to each parcel was beneficial to each, and did not constitute such an incumbrance as would be any breach of the covenant against incumbrances, as no damage could result from the mutual easements to the owner of either parcel; (3) that

the adjoining owners did not by virtue of the agreement own in common the land covered by the party wall, but each owned in severalty to the former line in the centre of the wall, and each owned in severalty so much of the wall as stood upon his own land, subject to the easement for support and maintenance, the half standing on Harmon's land "being subject also to the incumbrance, under the party-wall contract, that its value must be paid by its owner to the adjoining proprietor who built it, before its owner should have the right to use it," and (4) that the half of the party wall on Harmon's land passed by defendants' deed to Mackey, but it was subject to such incumbrance, and could not be used without payment of its value to Hurlburt, and that this was an incumbrance affecting the value, use and enjoyment of a part of the premises conveyed, and its existence was a breach of defendants' covenant against incumbrances. Defendants appeal from an order refusing a new trial.

Woods & Hahn, for appellants.

Chas. P. Biddle, for respondents.

BERRY, J.

The following facts are found by the court by which this action was tried below:

One Hurlburt and defendant Harmon, owning adjoining lots on Nicollet avenue, Minneapolis, executed a written instrument, under seal, wherein it was agreed that Hurlburt might build a stone or brick wall on the dividing line between the lots; one-half of the wall and its footings to stand upon Hurlburt's lot and one-half on Harmon's, the wall to be 66 feet in length (the full depth of the lots) and 60 feet high, and that Harmon, his heirs and assigns, should have the right to join and use the wall and sink joist and timbers therein, provided that, before making any use thereof or breaking into it, they should pay Hurlburt, his heirs or assigns, one-half of the value of the wall, or one-half of the value of so much of its length as should be joined to or used. The instrument further provides for the extension of the wall by either party, and for the use of the extension by the other upon like terms as above, and also, that if it becomes necessary to rebuild or repair it, the expense of repairing or rebuilding shall be borne equally by the parties as to so much of the wall as is jointly used. And it...