Swift v. Calnan

• Decision Date: 15 May 1897
• Citation: 102 Iowa 206,71 N.W. 233
• Parties: SWIFT ET AL. v. CALNAN.
• Court: Iowa Supreme Court

102 Iowa 206

71 N.W. 233

SWIFT ET AL.

v.CALNAN.

Supreme Court of Iowa.

May 15, 1897.

Appeal from district court, Clinton county; C. M. Waterman, Judge.

Suit in equity to establish and foreclose a mechanic's lien. Plaintiffs and defendant are the owners of adjoining and contiguous lots fronting on the same street. In November, 1892, plaintiffs, with the knowledge and consent of the defendant, built a stone and brick wall 13 inches wide upon the line between the two lots, so that the same could and would be a wall in common. Before the building of the wall, defendant agreed that it should be a wall in common, and promised and agreed to pay one-half the value thereof upon its use by him. In August, 1894, defendant erected a structure on his lots, and used and appropriated the wall built by the plaintiffs. The party wall cost the sum of $1,089, and this suit was brought to recover one-half thereof, and to establish and foreclose a mechanic's lien for that amount upon the defendant's lot. Defendant demurred to the petition, reciting these facts, on the ground that the plaintiffs were not entitled to any relief whatever. This demurrer was sustained, and plaintiffs appeal. Reversed.Hayes & Schuyler, for appellants.

McCoy Bros. and Walsh Bros., for appellee.

DEEMER, J.

In support of the ruling of the lower court appellee insists: (1) That under the facts recited plaintiffs are not entitled to a mechanic's lien; (2) that the action is barred by the statute of limitations; (3) that the action cannot be maintained, because based upon oral contract, the statute providing that such agreements must be in writing; (4) that the party-wall statute, giving one person a right to build upon the land of his neighbor, is unconstitutional and void; (5) that, such statute being void, no recovery can be had for a wall erected thereunder; and (6) that where a building wrongfully laps over on another's land, said person has the right to use it without making compensation. In the statement preceding this opinion it will be noticed that plaintiffs built the wall upon the dividing line between the two lots with the knowledge and consent of the defendant, and with the promise on his part to pay one-half the cost thereof as soon as he should use it. Without reference to the party-wall statute, plaintiffs were licensees, and, having rested half their wall on the defendant's land under an express promise by defendant to pay therefor when he should use it, there is no reason why they cannot, as at common law, recover upon the promise. Rindge v. Baker, 57 N. Y. 209;Bodell v. Nehls (Iowa) 52 N. W. 123;Zugenbuhler v. Gilliam, 3 Iowa, 391;Day v. Caton, 119 Mass. 513. It is said, however, that action is predicated upon the party-wall statutes, and that such an agreement cannot be proven by parol. These statutes, so far as material, are as follows: Code, § 2019: “In cities, towns and other places surveyed into building lots, the plats whereof are recorded, he who is about to build contiguous to the land of his neighbor may, if there be no wall on the line between them, build a brick or stone wall at least as high as the first story, if the whole thickness of such wall above the cellar wall does not exceed eighteen inches, exclusive of the plastering, and rest one-half of the same on his neighbor's land; but the latter shall not be compelled to contribute to the expense of said wall.” Section 2020: “If his neighbor be willing and does contribute one-half of the expense of building such wall, then it is a wall in common between them, and if he refused to contribute to the building of such wall, he shall yet retain the right of making it a wall in common by paying to the person who built it one-half of the appraised value of said wall at the time of using it.” Section 2027: “Every proprietor joining a wall, has, in like manner, the right of making it a wall in common, in whole or in part, by repaying to the owner of the wall one-half of its value or the one-half of the part which he wishes to hold in common, and one-half of the value of the ground on which it is built, if the person who has built the wall has laid the foundation entirely upon his own ground.” Section 2030: “This chapter shall not prevent adjoining proprietors from entering into special agreements about walls on the lines between them; but no evidence of such agreements shall be competent unless it be in writing, signed by the parties thereto, or their lawfully authorized agents. * * *” Now, we have held that when the contract is the same in fact as that which the law makes for the parties, it is not within the meaning of this section. Wickersham v. Orr, 9 Iowa, 253. The contract relied upon in this case is not different from that which the law made, and it is not void because it was in parol. It is said, however, that sections 2019, 2020, and 2027 are unconstitutional, because they authorize the taking of private property for private use, and without compensation. Concede, for the purpose of the case, that this is so; yet how does this affect the validity of the contract made between the parties? If these sections are held unconstitutional and void, in so far as they authorize the building of a wall upon the property of another, they certainly should be considered in construing another section which appellee relies upon and concedes to be valid. While no right may be based upon an unconstitutional act, part of its provision may be considered in construing other provisions confessedly good in arriving at the correct interpretation of the latter. Appellee contends, however, that the agreement, if good, cannot be enforced, because this is a suit in equity, and that remedy upon the contract must be by action at law. The ready answer to this contention is the statute (Code, § 2514), which provides, in effect that an error as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings, and a transfer to the proper docket. See Mills v. Hamilton, 49 Iowa, 105;Conyngham v. Smith, 16 Iowa, 471;Lewis v. Soule, 52 Iowa, 11, 2 N. W. 400; and many other cases noted in McClain's Code & Supp., at section 3719. It is argued, however, that this action is founded upon the party-wall statute...