Southworth v. Perring

• Decision Date: 07 July 1905
• Docket Number: 14,254
• Citation: 81 P. 481,71 Kan. 755
• Parties: HILAND SOUTHWORTH v. E. L. PERRING
• Court: Kansas Supreme Court

81 P. 481

71 Kan. 755

HILAND SOUTHWORTH v. E. L. PERRING

No. 14,254

Supreme Court of Kansas

July 7, 1905

Decided. July, 1905.

Error from Dickinson district court; OSCAR L. MOORE, judge.

Judgment reversed. Motion for rehearing denied.

SYLLABUS

SYLLABUS BY THE COURT.

PARTY WALL--Covenant Running with the Land. A contract made between the respective owners of adjoining lots expressed to be binding upon their heirs and assigns, providing that the wall of a building one of them is about to erect shall be placed upon the dividing line, and that when the other builds he shall use it as a party wall and pay him half its value, in effect creates covenants running with the land of each party; and where after such first building is erected conveyances are made of each lot, the subsequent owner of the vacant lot who builds thereon and makes use of the party wall is required to make payment therefor to the owner of the lot first built upon.

Hurd & Hurd, and Humphrey & Humphrey, for plaintiff in error.

S. S. Smith, for defendant in error.

MASON J. All the Justices concurring.

OPINION

MASON, J.

In 1885 the respective owners of two adjoining lots entered into a written contract, by the terms of which it was agreed that one of them, who was about to erect a brick-and-stone building upon his lot, should place one of the walls upon the dividing line, and that when the other should build he would use this wall as a division wall, and pay him half its value. The agreement concluded with these words:

"The parties hereto bind and obligate their heirs, executors, administrators and assigns to the fulfilment of all the terms and covenants of this agreement."

The building was accordingly erected. In course of time the lot on which the building stood was conveyed to Hiland Southworth and the other lot to E. L. Perring. In 1901 Perring built upon his property, and made use of the party wall. Southworth then demanded of him pay for half its value, and upon payment's being refused brought action to enforce it. Judgment was rendered against the plaintiff, who prosecutes error.

As appears from this statement the questions involved are: (1) Whether the right to compensation provided for in the contract, under the circumstances stated, remains with the individual who constructed the wall, or has passed to Southworth in virtue of his being the owner of the lot upon which the first building was erected at the time the wall was made use of by the adjoining proprietor; (2) whether the liability to pay a part of the value of the wall still exists against the original owner of the second lot, who made the contract, or has shifted to its present owner, who made use of the wall. Similar contracts have been a fruitful source of litigation, and the question whether they are to be treated as purely personal to their makers or may be regarded as creating covenants running with the land is one upon which there is much diversity of opinion and conflict of authority. The adjudicated cases are so completely gathered and so thoroughly digested in a note to Cook v. Paul, 4 Neb. (unofficial) 93, 99, 93 N.W. 430, published in volume 66 of the Lawyers' Reports, Annotated, page 673, that there would be little purpose in attempting to add to the presentation there made of the state of the law on the subject, as disclosed by the decisions of the courts. An editorial note on the subject in volume 89 of the American State Reports, page 941, gives a concise but comprehensive review of the arguments and authorities by which the various theories adopted are supported, introduced by the following paragraph:

"The question whether the grantee or assignee of the builder can recover on a covenant for contribution for the cost of a party wall, and whether the grantee or assignee of the covenantor is liable on such covenant, is one upon which much learning and research have been spent, and upon which the decisions are in irreconcilable conflict, and almost equally divided. Even in the same state different results have been reached under facts almost similar, and prior rulings are distinguished in a manner beyond the comprehension of the ordinary person."

Collections of pertinent decisions are also to be found in volume 38 of the American Digest, Century edition, columns 1907-1912, and in volume 22 of the American and English Encyclopedia of Law, pages 255, 256. An English case, decided in 1900 (Irving v. Turnbull, 2 Q. B. 129), bears upon some aspects of the matter.

In New York the extreme position is maintained that a contract of this character is so entirely personal in its nature that it cannot be made to run with the land in any aspect, even if the parties desire it and clearly so express themselves. This view is thought by the author of one of the notes cited to be the result of a misinterpretation of an early case. (66 L.R.A. 677, 678.) In Illinois it is held that the obligation to pay for the wall whenever used runs with the land of the non-builder, and lodges against the owner who erects the second building and joins to the wall, but that the right to receive the compensation is personal and remains with the individual who built the wall, notwithstanding any agreement the parties may have made to the contrary, on the ground that the agreement in this respect is of such a nature that the law does not permit it to be attached to the real estate. ( Gibson v. Holden, 115 Ill. 199, 3 N.E. 282, 56 Am. Rep. 146.) Elsewhere, however, it is generally conceded to be competent for the parties to make the privilege as well as the duty created by such an agreement follow the ownership of the land, and the disputed question in each case is whether they have done so, the conflict of authority arising upon the interpretation of the language employed. Different conclusions as to the intentions of the parties are reached by different courts upon substantially the same state of facts, according to the view taken of the general nature of such contracts. A court that regards them as closely related to the real estate, and inherently adapted to run with it, will be persuaded that it was the intention of the parties that they should do so upon much less evidence than would convince another court that considers them as essentially personal.

In the brief of the defendant in error much reliance is placed upon the opinion in Cook v. Paul, supra, which was also referred to approvingly by the trial court in announcing its judgment. There, after an extended discussion covering the whole scope of the inquiry, the conclusion is reached that--

"the more accurate statement of the law is still the one announced by the learned editor of the American Decisions [Mr. Freeman] in volume 92, page 301, of that series, as follows: 'The majority of the authorities maintain that these covenants are not of the nature of covenants running with the land, and that the grantees of the original parties cannot, by reason of their holding the adjoining lots, take advantage of the benefit, or be subjected to the burden, of the covenant to pay for one-half of a party wall, but that the right of recovery is personal to the builder, and the obligation to pay, except in certain cases, rests upon the covenantor only; and an agreement of the parties that the covenant shall be binding upon their heirs or assigns, etc., or even that it shall run with the land, is ineffectual.'"

The cogency of the reasoning employed in that case of course cannot be affected by any outside consideration, but its force as an authority is seriously impaired by a later expression of the same court (Loyal Mystic Legion v. Jones, 73 Neb. 342, 102 N.W. 621, 623), where this language was used:

"In a later case-- Cook v. Paul, 4 Neb. Unoff. 93, 93 N.W. 430, 66 L. R. A. 673, not officially reported--it is said [quoting the extract just given]. This doctrine is broader than the rule laid down by the prior decisions of this court. Cook v. Paul is one of the class of cases known in this state as 'unofficial'; and, as is said by Holcomb, C. J., in Flint v. Chaloupka, 72 Neb. 34, 99 N.W. 825, speaking of opinions of this character, 'the court is not necessarily bound by anything said therein, nor to the propositions of law enunciated on which the conclusions are predicated. It approves only the conclusions.' We do not, therefore, consider it as in any way establishing the legal proposition contained in the opinion. In most of these cases the question was as to the liability of the party using the wall, and the view taken by the court was that the contract, so far as affects the obligation of the subsequent user of a party wall to pay for the same, usually runs with the land. But in the instant case the question is different. It is, To whom is the money payable? . . . It will be observed that this court has heretofore adhered to the doctrine that such covenants run with the land, at least so far as the obligation of the user of the wall to pay for the same is concerned."

The court then decided that under the terms of the contract there involved the payment was required to be made between the persons owning the lots when the second building was constructed. As suggested in that case, the question whether the right to receive payment on account of the party wall passes with successive grants of the land is a more difficult one than whether the obligation to make the payment devolves upon the person who joins to the party wall. It is easier to find support in reason and authority for holding that the obligation to make payment runs with the land than for holding that the right to receive payment does. The important inquiry in the present case is, therefore, whether Southworth is entitled to collect payment for half the value of the...