Nabers v. Wise

• Citation: 241 Ala. 612,4 So.2d 149
• Decision Date: 09 October 1941
• Docket Number: 6 Div. 864.
• Parties: NABERS et al. v. WISE et al.
• Court: Supreme Court of Alabama

4 So.2d 149

241 Ala. 612

NABERS et al. v. WISE et al.

6 Div. 864.

Supreme Court of Alabama

October 9, 1941

Bowers & Dunn and Thos. F. McDowell, all of Birmingham, for appellants.

Wm S. Pritchard, Peyton D. Bibb, David R. Solomon, and Victor H Smith, all of Birmingham, for appellees.

BOULDIN, Justice.

This appeal is from a decree overruling demurrers to a bill in equity.

The litigation grows out of a controversy touching the rights of the respective parties in relation to a brick wall which has served for some forty years as a common or supporting wall for buildings erected on adjoining lots in the City of Birmingham.

The bill discloses the following: Lot 15, Block 85, in the Elyton Land survey, is 50 feet by 140 feet.

In 1886 the east half of this lot was acquired by Marion A. May. He held a feesimple title. About 1890 he erected a three-story brick building on this lot, the west wall being on his lot and extending to the line of the adjoining lot. This is the wall now in question.

It is 16 (18) inches at base, reduced 12 inches, and finally to 8 inches in thickness at the top. The shelves are on the east side. The face on the outside of the building was and is perpendicular.

In 1898 Marion A. May purchased an undivided one-half interest in the west half of lot 15, receiving a warranty deed from F. D Nabers and wife.

Prior to 1901, May being the sole owner of the east half of the lot and his building erected thereon, and May and Nabers being owners of the west half as tenants in common, they erected a three-story brick building of commercial type on their lot "resting said building on the east against the west wall" of the May building, "thus saving May and Nabers the cost of building an eastern wall to their new building."

The floor and roof joists of the new building were merely inserted into openings cut into the wall a depth of 4 to 6 inches; the rear brick wall was erected alongside the existing wall. Neither joists nor walls were anchored or bonded into the May wall. Thus the buildings stood until 1940. Meantime the titles to the respective properties had changed hands. Upon the death of Marion A. May in 1908, his title in both properties passed by his will to his wife, Mary J. May.

In 1911, Mary J. May conveyed by warranty deed her undivided half interest, in the west half of the lot, to Virginia Nabers. This deed, made exhibit to the bill, describes the property merely as the west half of lot 15, etc., making no reference to an interest or easement in the wall supporting the building thereon.

The present owners of this property, respondents to this bill, derive title, so far as appears, through F. D. Nabers and Virginia Nabers.

The title to the east half continued in Mary J. May, devisee, until her death in 1920, when it passed to John A. May and others, as devisees under her will, and was so held until 1924, when these devisees conveyed same by warranty deed, making no reference to any servitude or easement for support of the building on the west half of the lot.

The present owners of this east half, complainants in this bill, derive title through mesne conveyances from successive owners, all holding under warranty deed, making no reservation or reference to any servitude, etc.

Complainants became the owners of this property in March, 1940. The building thereon was in process of decay for want of maintenance and repair; the wall in question had deteriorated during the half century since erection.

The property was purchased with a view to demolish and remove the building and erect on the east half of lot 15 a new and modern building suited to its location. Accordingly a permit was obtained to demolish the building. When this was well under way respondents called in the building inspector of the city looking to a protection of their building against collapse by removal of its supporting wall. He ordered a suspension of the wrecking proceedings. An architect was engaged by respondents to make examination and advise measures to protect their building. He advised in detail the conditions found and the measures suggested to protect respondents' building against the giving away of this wall and consequent injury to their building.

Without detail, it will suffice to say these measures included tie-rods run through the building, the placement of cement blocks and channel bars on the east exterior of the wall and held tight with washers and nuts. The architect's report concluded: "The above suggestions for anchoring the wall should be sufficient for a period of time, but should not be considered a permanent cure owing to the age of the wall, which, because of its height and the lack of mortar, together with the fact that it runs only 12" thick for two stories in height, means that sooner or later it must be replaced with a new wall."

Complainants, being advised of this proposal, protested, denied the right to thus take dominion over the wall, denied that respondents had any right to interfere with the razing of the wall; urged that the protection of respondents' building was a matter for respondents by installations wholly on respondents' land, etc. Nevertheless, the proposed bracing and anchorage of respondents' building to the wall was installed. Thereupon, the pending bill was filed praying for a mandatory injunction to remove all such installations, and to enjoin respondents from interference with a demolition of the wall. Respondents' demurrers, which were overruled, challenged the equity of the bill, and certain aspects thereof.

When two adjoining lot owners, by agreement, erect a wall, resting partly on the lands of each, to serve as a common wall for the buildings erected or to be erected on each of the lots, it becomes a party-wall with such incidents as may be stipulated in a lawfully binding agreement. Unless so stipulated, the parties do not become tenants in common of the wall, but each owns the fee in the portion standing on his lands, subject to a cross-easement in favor of each upon the portion owned by the other by way of user as a supporting wall for his building. Graves v. Smith, 87 Ala. 450, 6 So. 308, 5 L.R.A. 298, 13 Am. St.Rep. 60.

A wall so erected at joint expense becomes a party-wall as matter of law, in the absence of express contract. McMinn v. Karter, 116 Ala. 390, 22 So. 517.

When one adjoining lot owner builds on his own property, one wall flush with the line, but resting wholly on his own property, the adjoining owner acquires no interest nor easement in such wall. He cannot acquire such interest other than by grant, or by prescription raising a presumption of a grant. He cannot, as of right, use such wall as a common wall, or as lateral support for a building thereafter erected on his own lot. The owner of the wall may raze same at will. Bisquay v. Jeunelot, 10 Ala. 245, 44 Am.Dec. 483; Moody v. McClelland, 39 Ala. 45, 84 Am. Dec. 770.

The factual situation here presented differs from either of those above noted.

This wall was originally erected by Marion J. May as part of his building on his own lot. Later he acquired a half interest in the adjoining lot. Thereupon he and his co-tenants erected the building thereon making this wall a part of the new building, one of the walls thereof, essential to its existence as a building. The wall thus became a common wall for both buildings by his own act and in his own interest as owner of one lot, the building thereon, and part owner of the other lot and the building thereon. Thus matters stood when both properties passed by devise to his wife and so continued until 1911...