Matthews v. Dixey
| Decision Date | 05 September 1889 |
| Parties | MATTHEWS v. DIXEY |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
N. Matthews, Jr., pro se.
H.H Sprague and J.L. Thorndike, for defendant.
The parties own adjoining lots on the north side of Beacon street, in Boston. Both parties claim under the Boston & Roxbury Mill Corporation, which formerly owned the land extending northerly from Beacon street to the harbor commissioner's line, and westerly from Hereford street to West Chester park. March 15, 1886, the corporation conveyed to William Simes a parcel of this land measuring 77 feet on Beacon street, and on the 24th of April, 1886, it conveyed to Nathan Matthews another parcel, 48 feet in width, lying westerly of and adjoining the land conveyed to Simes. Each deed contained the following provision: "The center of the easterly and westerly partition walls of the houses and buildings first erected on said land shall be placed on the division lines between the granted premises and the adjoining lots, and shall be good and sufficient walls; and the party first building such partition wall, whether the owner of the premises hereby granted or of an adjoining lot, shall be entitled to have and receive from the party using the wall one-half of the actual cost of so much of said wall including the pile foundations and stone and brick work and fences, as he shall actually use." The center of the easterly wall of plaintiff's house coincides with the dividing line between his lot and defendant's. The wall is 12 inches thick and 55 feet high. The defendant is proposing to build a house upon her land, higher and deeper than the plaintiff's, and for that purpose to carry up the partition wall built by the plaintiff to a height of over 60 feet, and to extend it 12 feet in the rear. To carry up the existing wall to the height to which the defendant proposes to carry it, it will be necessary, in order to comply with the building law, (St.1885, c. 374,) to add four inches to the thickness of the wall below the third story of the house, and to widen the foundation. The defendant proposes to add to the thickness of the wall and foundation on her own land, but it is contended by the plaintiff that it will not be practicable to get a sufficient foundation without renewing the existing foundation, and, perhaps, extending it somewhat further in the plaintiff's land. If this is rendered necessary by a proper use which the defendant makes of the existing wall, we see no objection to it. If the foundation is insufficient for a proper use which the defendant proposes to make of the wall, or for such a wall as the defendant has a right to have, the right to strengthen or enlarge the foundation so as to make it sufficient is implied. If the defendant has a right to carry up the wall, she has a right to put in a foundation sufficient therefor, doing no injury to the existing wall. Bank v. Stokes, L.R. 9 Ch.Div. 68; Eno v. Del Vecchio, 4 Duer, 53; Field v. Leiter, (Ill.) 6 N.E.Rep. 877.
The right claimed by the defendant is to carry up the partition wall built by Matthews. Whether she has that right depends upon the construction to be given to, and the inferences to be drawn from, the deed to Simes, her grantor. The provision in the deed is somewhat blind, but on examination its meaning becomes evident. It may be assumed that the grantor owned a large tract of land, which it was selling in parcels to be built upon. It may also be assumed that the provision was intended as a general provision, to be applied to all the land sold, and to be inserted in all deeds of it, and that it was contained in the deed of the land that had been sold adjoining the Simes land on the east. The land conveyed to Simes was of sufficient width for several buildings. The words, "the easterly and westerly partition walls of the houses *** first erected on said land shall be placed on the division line between the granted premises and the adjoining lots," plainly do not mean all partition walls between houses built on the land, but party-walls of houses built on the easterly or westerly lines of the land conveyed. It was a grant of a right to build a party-wall upon both the eastern and western sides of the lot, one-half of which should be upon land not included within the lines of the description. This gave a right, or interest, or estate in the adjoining land, which it is not necessary to attempt to name. The same right that was granted to the grantee was also reserved to the grantor. If this would not be inferred from the mere grant of the right to build a party-wall, which is built upon both estates, and belongs to both, the terms of the grant show that the benefit of the grantor equally with the grantee was intended....
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