Mary Jane Stevens Co. v. First Nat. Bldg. Co, 5029

CourtUtah Supreme Court
Writing for the CourtWOLFE, Justice.
Citation89 Utah 456,57 P.2d 1099
Docket Number5029
Decision Date13 May 1936
PartiesMARY JANE STEVENS CO. v. FIRST NAT. BLDG. CO

57 P.2d 1099

89 Utah 456

MARY JANE STEVENS CO.
v.
FIRST NAT. BLDG. CO

No. 5029

Supreme Court of Utah

May 13, 1936


[57 P.2d 1100] [Copyrighted Material Omitted] [57 P.2d 1101] [Copyrighted Material Omitted] [57 P.2d 1102] [Copyrighted Material Omitted] [57 P.2d 1103]

Appeal from District Court, Weber County, Second District; David W. Moffat, Judge.

Action by the Mary Jane Stevens Company against the First National Building Company. From a judgment granting plaintiff partial relief, plaintiff appeals and defendant cross-appeals.

REVERSED, WITH DIRECTIONS.

Stewart, Alexander & Budge, of Salt Lake City, for appellant.

De Vine, Howell & Stine and A. W. Agee, all of Ogden, for respondent.

WOLFE, Justice. ELIAS HANSEN, C. J., FOLLAND and EPHRAIM HANSON, JJ., and H. M. SCHILLER, District judge, concur. MOFFAT, J., being disqualified, did not participate.

OPINION [57 P.2d 1104]

[89 Utah 466] WOLFE, Justice.

This case comes to the writer on reassignment. It involves an action for damages to plaintiff's property and a prayer asking that the trial court enjoin defendant to remove alleged encroachments, all arising out of the replacement by defendant of its old building by a new thirteen-story building on the lot next to plaintiff's in Ogden City. There are one hundred and eight errors assigned by plaintiff in its appeal, and six errors by defendant in its cross-appeal. A rather complete statement of the facts is therefore necessary.

In 1878, John E. Dooley owned the lots now owned by plaintiff and defendant. The total lot was 100 feet fronting on Washington avenue and 155 feet fronting on Twenty-Fourth street. On August 19, 1878, out of this rectangular lot, Dooley conveyed to Sidney Stevens the land now owned by plaintiff. It was an L-shaped piece, 50 feet frontage on Washington avenue and 25 feet frontage on Twenty-Fourth street, the two arms of the L embracing the corner lot retained by Dooley. Dooley after this conveyance, and his successors down to and including the defendant, therefore, owned a corner lot 50 feet by 130 feet on the southeast corner of Twenty-Fourth street and Washington avenue, and Sidney Stevens and his successors down to and including the plaintiff an L-shaped piece bordering on the corner lot on two sides. Thus, the defendant's lot has a frontage of 50 feet on Washington avenue and 130 feet on Twenty-Fourth street, and plaintiff's lot has a frontage of 25 feet on Twenty-Fourth street east of the rear of defendant's lot and approximately 50 feet frontage on Washington avenue just south of the 50-foot frontage of defendant's. The dimensions here given are approximate for the purpose of identifying generally the two lots in lot 6, block 27 of Plat A, of Ogden City. Alleged discrepancies, in the actual land occupied and the actual portion of the earth's surface to which each was entitled, play an important part in the case, as we shall later see:

[89 Utah 467] In 1879, Mr. Sidney Stevens constructed for himself and Dooley a brick rectangular building on both lots with approximately 100-foot frontage on Washington avenue and extending 90 feet on Twenty-Fourth street. It was a three-story building and its frontage and back were a continuous wall. A partition wall 16 inches wide (17 inches including the plastering) running east and west was constructed above ground entirely on Dooley's (predecessor of defendant's) property with its south face on the division line, thus occupying 16 inches of Dooley's space. Below ground there was a stone wall about 36 inches wide at the top, widening as it went down about 18 inches more, which was the footing for the three-story [57 P.2d 1105] 16-inch partition wall. Part of this foot wall was on Stevens' land. The floor joists of the first floor of both buildings rested on this stone wall. The floor joists supporting the second and third floors of the Stevens part of the building extended into the 16-inch brick wall about 6 inches and it was their only support. There were flues in this wall leading from both buildings. These facts concerning the partition wall, it is claimed, are material in the determination of whether it was a party wall or a wall belonging to Dooley with a right of support only for the Stevens part of the building. Added facts regarding this question will be later given. The facts being lengthy, endeavor will be made to point out as they are given the questions upon which they bear. These conditions existed until the fall of 1925 except for certain remodelings. The north portion of this building on the Dooley tract was used as a bank for many years. The bank faced the front of its building with brick, covering the old brick. This brick was extended to the south line of the west front and thereby extended over that part of the frontage which was coextensive with the west end of the 16-inch wall.

Starting in December, 1925, and during 1926, defendant removed its portion of the unit building and erected a new 13-story building. Out of this construction grows this lawsuit. The complaint sets out two causes of action, the first [89 Utah 468] dealing with certain alleged encroachments which it is contended constitute a continuing trespass and appropriation; the second, with damage claimed to have been caused to plaintiff's building and grounds. The 1,400-page transcript is replete with detail. We believe the reader may obtain the best grasp of the facts which bear on the matter of encroachments and damages and which it is necessary to keep in mind better to understand the legal principles which apply, if we narrate the progressive steps in the construction of the new building as far as we are able, with difficulty, to assemble and interpret them from the record.

The defendant used its full 50 feet by 130 feet for its building. The contractor, Whitmeyer & Co., began by wrecking the defendant's half of the old building. In order to do this it was compelled to use certain engineering devices to preserve the south half of that building belonging to plaintiff. It began by tearing down the north wall on Twenty-Fourth street and the west and east walls to a point nearly up to the partition wall. The problem presented itself as to how the Stevens building should be supported while the partition wall was removed and until the south wall of the new bank building was erected. In order to accomplish this, the contractor dug down under the northeast corner of the Stevens part to a point below any contemplated excavation for the new bank building, and this shaft approximately 4'x4' was filled with concrete until it reached the bottom of the stone footing heretofore mentioned which held the 16-inch brick wall; the said footing extending below the surface of the ground about 8 feet. The north side of this concrete was flush with the south line of the contemplated south wall of the bank building. But any encroachment of this column of cement underneath the northeast corner does not seem to be complained of. Next, and before the contractor removed the partition wall, the cement in the basement of the Stevens building was broken out about 3 feet along the north side, beginning at about 40 to 50 feet from the front of the building. An east and west line of holes [89 Utah 469] was drilled vertically about 3 1/2 feet apart to a depth of 3 or 4 feet lower than the deepest contemplated excavation. Sections of 6-inch pipe were inserted in these holes coupled together, and these pipe wells were then filled with concrete. Across the top of this line of piles a large timber was laid. On this sill were placed at intervals a series of 2"x6" timbers running from the sill to a plate fastened underneath the floor joist. Similar props were placed running from the first floor to the joists of the second floor and from the second floor to the joists of the third floor. All this was done before the partition wall was removed. In fact, before anything but the roof of the bank building was removed. While the Stevens building was thus "shored" up, the walls of the bank building were removed. When the partition wall was about 75 per cent. removed, a pier was constructed under the I beam which ran along the top of the first floor in the front wall of the Stevens building and into the bank part of the building. A pier of concrete was constructed extending 18 feet underneath the surface and above the sidewalk up to the ledge in the plate-glass window. This concrete underneath was 18 inches square. On this concrete pier was constructed an additional pier of burnt brick about 12 inches wide by 16 inches deep up to the I beam before mentioned. This concrete and brick pier was entirely south of the contemplated south side of the south wall of the new bank. The [57 P.2d 1106] brick pier did not come exactly to the I beam. In the space 3/4-inch hardwood wedges were driven. It is claimed by plaintiff that owing to the settling of this pier and the crushing of the wedges together with some settling on the new bank building, the whole northwest part of the Stevens building was thrown out of plumb, causing cracks in the walls and throwing the floors out of level. More will be later said about this. The defendant claims the plaintiff consented to the construction of this pier. As this is a disputed fact depending upon a question of agency, treatment of that phase will be reserved. Plaintiff also claims damages to its building by reason of this pier having taken up [89 Utah 470] approximately 12 inches of the space formerly occupied by the plate-glass window in front of their building and that the concrete part obstructs to the extent of 18 inches the cellarway leading to the basement and occupied by the Western Union Telegraph office, a lessee of plaintiff.

We resume the narration of the progressive steps in construction, calling attention as we proceed to those features which it is claimed are encroachments or which damaged plaintiff's premises. The...

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16 practice notes
  • Urban Site Venture II Ltd. Partnership v. Levering Associates Ltd. Partnership, No. 43
    • United States
    • Court of Appeals of Maryland
    • September 1, 1995
    ...Hasselbring v. Koepke, 263 Mich. 466, 248 N.W. 869, 873, 93 A.L.R. 1170 [ (1933) ]; Mary Jane Stevens Co. v. First National Building Co., 89 Utah 456, 57 P.2d 1099, 1126 [ (1936) Id. 199 Md. at 305, 86 A.2d 404. 1 Easter filed a petition to require Dundalk to remove the building in 1956. Th......
  • State v. Lingman, 6022
    • United States
    • Supreme Court of Utah
    • June 5, 1939
    ...Whether this qualified him as an expert was a question primarily for the court. Mary Jane Stevens Co. v. First National Bldg. Co., 89 Utah 456, 500, 57 P.2d 1099; Coon v. Shields, 88 Utah 76, 39 P.2d 348; Battle Creek Bread Wrapping Mach. Co. v. Paramount Baking Co., 88 Utah 67, 75, 39 P.2d......
  • Richards' Estate, In re, No. 8452
    • United States
    • Supreme Court of Utah
    • May 16, 1956
    ...265. 3 Lindsay Land & Livestock Co. v. Smart Land & Livestock Co., 43 Utah 554, 137 P. 837; Mary Jane Stevens Co. v. First Nat. Bldg. Co., 89 Utah 456, 57 P.2d 4 Culmer v. Clift, 14 Utah 286, 291, 47 P. 85. 5 Leavitt v. Thurston, 38 Utah 351, 113 P. 77; Karren v. Blair, 63 Utah 344, 225 P. ......
  • Waterman S. S. Corp. v. McGill Institute, 1 Div. 916
    • United States
    • Supreme Court of Alabama
    • December 21, 1961
    ...of their building to the extent to which it was used prior to the time the roof sagged. Mary Jane Stevens Co. v. First National Bldg. Co., 89 Utah 456, 57 P.2d 1099; Fleming v. Cohen, 186 Mass. 323, 71 N.E. The decree of the trial court is reversed and the cause is remanded with direction t......
  • Request a trial to view additional results
16 cases
  • Urban Site Venture II Ltd. Partnership v. Levering Associates Ltd. Partnership, No. 43
    • United States
    • Court of Appeals of Maryland
    • September 1, 1995
    ...Hasselbring v. Koepke, 263 Mich. 466, 248 N.W. 869, 873, 93 A.L.R. 1170 [ (1933) ]; Mary Jane Stevens Co. v. First National Building Co., 89 Utah 456, 57 P.2d 1099, 1126 [ (1936) Id. 199 Md. at 305, 86 A.2d 404. 1 Easter filed a petition to require Dundalk to remove the building in 1956. Th......
  • State v. Lingman, 6022
    • United States
    • Supreme Court of Utah
    • June 5, 1939
    ...Whether this qualified him as an expert was a question primarily for the court. Mary Jane Stevens Co. v. First National Bldg. Co., 89 Utah 456, 500, 57 P.2d 1099; Coon v. Shields, 88 Utah 76, 39 P.2d 348; Battle Creek Bread Wrapping Mach. Co. v. Paramount Baking Co., 88 Utah 67, 75, 39 P.2d......
  • Richards' Estate, In re, No. 8452
    • United States
    • Supreme Court of Utah
    • May 16, 1956
    ...265. 3 Lindsay Land & Livestock Co. v. Smart Land & Livestock Co., 43 Utah 554, 137 P. 837; Mary Jane Stevens Co. v. First Nat. Bldg. Co., 89 Utah 456, 57 P.2d 4 Culmer v. Clift, 14 Utah 286, 291, 47 P. 85. 5 Leavitt v. Thurston, 38 Utah 351, 113 P. 77; Karren v. Blair, 63 Utah 344, 225 P. ......
  • Waterman S. S. Corp. v. McGill Institute, 1 Div. 916
    • United States
    • Supreme Court of Alabama
    • December 21, 1961
    ...of their building to the extent to which it was used prior to the time the roof sagged. Mary Jane Stevens Co. v. First National Bldg. Co., 89 Utah 456, 57 P.2d 1099; Fleming v. Cohen, 186 Mass. 323, 71 N.E. The decree of the trial court is reversed and the cause is remanded with direction t......
  • Request a trial to view additional results

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