Molony v. Dixon

• Decision Date: 03 December 1884
• Citation: 21 N.W. 488,65 Iowa 136
• Parties: MOLONY v. DIXON
• Court: Iowa Supreme Court

21 N.W. 488

65 Iowa 136

MOLONY v. DIXON

Supreme Court of Iowa, Des Moines

December 3, 1884

Appeal from Wapello Circuit Court.

ACTION to recover one-half of the cost of what the plaintiff claims to be a party wall. The defendant pleaded a counter-claim. Trial by jury, judgment for the plaintiff, and defendant appeals.

AFFIRMED.

McNett & Tisdale, E. H. Stiles and J. W. Dixon, for appellant.

J. J Smith and W. H. C. Jaques, for appellee.

OPINION

SEEVERS, J.

I.

In 1880 the plaintiff purchased of the defendant and J. G. Hutchinson a lot in the city of Ottumwa, upon which the plaintiff agreed to erect a two-story brick building; and it was further agreed between said parties that when the defendant constructed a building on the adjoining lot he would construct, in connection with the plaintiff's building, a stairway to the second story, of the usual width, and to be constructed in the usual manner, one-half of which should be on the ground of each party. The plaintiff erected her building, and placed a portion of her wall on her own ground 20 inches from the line. The defendant afterwards constructed a building on the abutting lot. He also constructed a stairway, as he had agreed to do, and this action was brought by the plaintiff to recover for the cost of one-half of the wall which was 20 inches from the line, and entirely on her own land, on the theory that it was, in fact, a party wall. The court instructed the jury that, "under the contract of the parties, the defendant had the right to construct the stairway in question. In so doing, he might build into that part of the plaintiff's wall that stands on her own land for the support of the common stairway, without making that part of the plaintiff's wall a party wall. If the defendant built into that part of the plaintiff's wall that stands entirely on her own land, only so far as it was necessary to support the common stairway, although it may incidentally afford some support to defendant's building, yet, in that event, defendant would not be liable to pay for one-half of said wall, but if the defendant built into that part of plaintiff's wall which stands entirely on her own land in such a way as to support his building, and in a way not demanded for the support of the stairway, then you should allow the plaintiff one-half of the value of that part of the wall at the time the defendant used it, with six per cent interest thereon." The defendant contends that this instruction is erroneous, and that a wall cannot be regarded as a party wall which is entirely on the property of one of the adjoining proprietors. In Washburn on Easements, *467, it is said that "the cases, both in the English and the American courts, have been so few, in which the rights of parties in respect to party walls have been considered, that I have been induced by the importance of the subject to depart from the general rule in reference to this work, and borrow somewhat freely from the French law, as throwing light upon some points not yet adjudicated by the common law-courts. But it should be remembered that by both the civil and the common law, if the subject becomes one answering to the character of a party wall, it must be made so by the agreement, actual or presumed, of the parties to that effect." Our statute on this subject, it has been said, was copied from the civil law of Louisiana. Note to Bertram v. Curtis, 31 Iowa 46. Therefore, it is not surprising that counsel have been unable to cite any case in which the question under consideration has been adjudicated. The statute provides that, where a person is about to erect a building contiguous to the land of another, he may rest one-half of his wall on the land of his neighbor, and the latter has the right to make the wall a party wall by paying one-half of the expense of constructing the wall. Code, § § 2019, 2020. But a person is not compelled to so construct his building. He may build it immediately on the line, but entirely on his own ground, and, without doubt, we think, the owner of the abutting property would have the right to make such wall a party wall, by connecting his building with the one constructed by his neighbor, by paying one-half of the expense of the wall, and one-half of the value of the land on which it is situate. The statute so provides. Code, § 2027.

The present case is materially different, the wall being not only entirely on the plaintiff's ground, but 20 inches from the line of the defendant's property. Can such a wall become a party wall? We think it may be so regarded under the facts of this case, as contemplated in the instruction under consideration. The thought of the circuit court seems to have been that, as the plaintiff erected her building so that the defendant could construct a stairway, if he, in so...