Payne v. Moore

• Citation: 66 N.E. 483, 31 Ind.App. 360
• Case Date: February 27, 1903
• Court: Court of Appeals of Indiana

31 Ind.App. 360

66 N.E. 483

PAYNE

v.MOORE et al.¹

Appellate Court of Indiana, Division No. 2.

Feb. 27, 1903.

Appeal from circuit court, Putnam county; P. O. Colliver, Judge.

Action by Charles E. Moore and wife against Moses D. Payne and another, in which Elizabeth R. Batman filed a cross-complaint against defendant Payne. From judgments in favor of plaintiffs and in favor of defendant Batman on her cross-complaint, defendant Payne appeals. Reversed.R. P. Carpenter, John P. Allee, and Thomas T. Moore, for appellant. John H. James and S. A. Hays, for appellees.

COMSTOCK, J.

This action was brought by the appellees Charles E. Moore and Mary L. Moore, husband and wife, and partners in the business of publishing a newspaper and conducting a printing office in the town of Roachdale, Putnam county, Ind., against appellant and Elizabeth R. Batman, to recover damages claimed to have been sustained by the appellees by reason of the appellant and appellee Batman, or the appellant with the knowledge and consent of appellee Batman, unlawfully, willfully, and wrongfully excavating and removing the support of a certain wall which formed the east wall of the building used and occupied by appellees as a printing office, thereby causing said wall to fall into the room occupied by appellees, and upon and over the presses, machinery, and tools belonging to appellees, to their damage in the sum of $2,000. Elizabeth R. Batman filed her cross-complaint against her codefendant Payne for damages to building by reason of the same facts. The complaint was in three paragraphs. The cause was put at issue as to the complaint and the cross-complaint, and upon trial by jury a verdict was returned in favor of the appellees Moores for $1,500 and in favor of appellee Batman upon her cross-complaint for $125, upon which judgments were duly rendered. It does not appear upon which paragraph the verdict was rendered.

The first specification of error discussed is the action of the court in overruling appellant's demurrer, for want of facts, to the first paragraph of the complaint. Said paragraph is as follows: Plaintiffs say that “on the - day of June, 1901, the plaintiffs were in the legal and peaceable possession, as lessees, of a certain one-story brick building, situate on a part of lot number twelve (12), block number four (4), in the town of Roachdale, Putnam county, Ind., in which they were then, and for some months prior thereto had been, carrying on the business of printing and publishing a newspaper and operating a news and job printing office. That on or about the - day of June, 1901, the said defendants, Payne and Batman, unlawfully and without right entered upon the lot adjoining the said premises so occupied by these plaintiffs, and wrongfully and without right dug and excavated the earth near and adjoining to the building so occupied by these plaintiffs, and unlawfully and purposely destroyed the support of the brick wall which formed the east wall of the building so occupied by these plaintiffs, thereby purposely, willfully, wrongfully, and unlawfully causing said brick wall to fall and to be thrown down and into the room then and there occupied by these plaintiffs, upon and against and over the machinery, type, tools, and material then and there contained in said room, and then and there the property of these plaintiffs, then and there and thereby breaking, damaging, and destroying said machinery, tools, paper, and other material belonging to these plaintiffs, and then and there and thereby damaging and injuring the plaintiffs in the sum of, to wit, fifteen hundred dollars ($1,500), for which plaintiffs pray damage and all other proper relief.” The first objection made is that it states only conclusions. This objection, a reading of the paragraph shows, is not well taken.

It is further urged that the building occupied by appellees was upon the edge of the adjoining lot, and that under such allegation neither the landlord nor tenant would have an easement in the adjoining lot for support until the building had stood and had the advantage of the support for 20 years. Moellering v. Evans, 121 Ind. 195, 22 N. E. 989, 6 L. R. A. 449, is cited in support of this claim. See, also, Bohrer v. Dienhart Harness Co., 19 Ind. App. 489, 49 N. E. 296. Appellees meet this objection with the statement that the case cited is not applicable “to a party wall built, as in this case, one-half on each of the adjoining lots, each adjoining proprietor owning one half of the wall and having an easement for lateral support in the other half.” The paragraph in question herein contains no averment showing that the wall is a party wall and standing one-half on each of the adjoining lots. The case cited is decisive of the question. It is proper to add here that there is no allegation that the work was done negligently or carelessly. The demurrer should have been sustained.

The second and third paragraphs of the complaint allege that the wall in question was a party wall between the properties of appellant and appellee Batman; that the appellant did the excavating, which caused the wall to fall upon his own property, with the knowledge and consent of appellee Batman, and that under such facts appellant would not be liable for the injury of the property of appellees. The consent of appellee Batman to the acts of appellant could not affect the right of appellees Moores to recover for damage to their property.

It is next urged that the court erred in sustaining appellees Moores' demurrer to the second paragraph of the appellant's answer to the complaint. The second paragraph of appellant's answer seeks to answer each and all of the paragraphs of plaintiffs' complaint, and sets up an agreement, in connection with the purchase of the 2 1/2 feet of ground by appellant from appellee Batman, that the wall, one-half of which stood on the ground so purchased, should be and become a party wall, and that appellant should have the right to use said wall as a party wall, to build onto the same,...