Swift v. Calnan
| Decision Date | 15 May 1897 |
| Citation | 71 N.W. 233,102 Iowa 206 |
| Parties | GUSTAVUS F. SWIFT AND EDWIN C. SWIFT, Appellants, v. J. P. CALNAN |
| Court | Iowa Supreme Court |
Appeal from Clinton District Court.--HON. 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 upon the same street. In November 1892, they, with the knowledge and consent of the defendant built a stone and brick wall thirteen 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 one thousand and eighty-nine dollars, 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.
Statutes for walls in common, like our own, have existed in several of the states for years. This statute, which was in existence when our present constitution was adopted, has been repeatedly recognized by this court, and other courts of the states, and it has become a part and parcel of our system.
Zugenbuhler v. Gilliam, 3 Iowa 391; Wickersham v. Orr, 9 Iowa 253, 74 Am. Dec. 348; Thomson v. Curtis, 28 Iowa 229; Bertram v. Curtis, 31 Iowa 46; Sullivan v. Graffort, 35 Iowa 531; Molony v. Dixon, 65 Iowa 136 (54 Am. Rep. 1); Crapo v. Cameron, 61 Iowa 447; Cornell v. Bickley, 85 Iowa 219; Sheldon Bank v. Royce, 84 Iowa 288; Freeman v. Herwig, 84 Iowa 435; Price v. Lien, 84 Iowa 590; Deere v. Weir-Shugart Co., 91 Iowa 422.
This of itself is enough to debar the courts from disturbing it, even if theoretically they might, as a new question, doubt its constitutionality. This idea is sustained by the highest authority and the weight of reason.
Cooley, Const. Lim. (1st Ed.), 534; Hoagland v. Wurts, 41 J. J. L. 175; Coster v. Tide Water Co., 18 N.J.Eq. 68; Wurts v. Hoagland, 105 U.S. 701, 26 L.Ed. 1109; Barbier v. Connolly, 113 U.S. 27, 28 L.Ed. 923; State, Brittin v. Blake, 36 N.J.L. 442.
It is quite possible that, in any state in which this question would be entirely a new one, and where it would not be embarrassed by long acquiescence, or by either judicial or legislative precedents it might be held that these laws are not sound in principle, and that they cannot be sustained by the maxims on which is based the right of eminent domain.
Cooley, Const. Lim. (1st Ed.), 536.
The provision of the statute requiring agreements relating to party-walls to be in writing relates to special agreements outside of the statutory provision and not in line with it.
Wickersham v. Orr, 9 Iowa 253, 74 Am. Dec. 348; Price v. Lien, 84 Iowa 590.
Where one party so builds a wall on a division line and the other owner appropriates and uses it as a joint wall in common, he is liable for its value, and this on ordinary and well-recognized principles of the law.
Zugenbuhler v. Gilliam, 3 Iowa 391; Rindge v. Baker, 57 N.Y. 209 (15 Am. Rep. 479); Bank of Escondido v. Thomas (Cal.) 41 P. 462; Guttenberger v. Woods, 51 Cal. 523; Zeininger v. Schnitzler, 48 Kan. 63; Thornton v. Royce, 56 Mo.App. 179; Walker v. Stetson, 162 Mass. 86; Day v. Caton, 119 Mass. 513 (20 Am. Rep. 347); Rice v. Roberts, 24 Wis. 461 (1 Am. Rep. 195); Deere v. Weir-Shugart Co., 91 Iowa 422; 18 Am. & Eng. Enc. Law, page 3.
Walsh Brothers and McCoy Brothers for appellee.
The statute authorizing party-walls does not provide or contemplate the giving of a mechanic's lien therefor, and chapter 10 of McClain's Code of 1888, which contains all of the provisions relating to party-walls, nowhere makes any suggestion authorizing a mechanic's lien.
Section 3734, McClain's Code of 1888, and these sections construed together, have been held to mean that the two years' limitation commences to run from the expiration of the period of thirty or ninety days, as the case may be, whether the statement for the lien is filed within that time or not.
Squier v. Parks, 56 Iowa 407; Dimmick v. Hinkley, 57 Iowa 757.
Hence, no suit for the foreclosure of a mechanic's lien would be good at this late day, and said plaintiff would be entitled to no relief whatever in equity on account thereof.
Peters v. Phillips, 63 Iowa 553; Welsh v. Bayaud, 21 N.J.Eq. 186.
An agreement that adjoining lot owners shall erect a party-wall on the line at their joint expense is a special agreement and must be in writing.
Price v. Lien, 84 Iowa 590; Crapo v. Cameron, 61 Iowa 447.
There can be no recovery unless there is a valid agreement between the parties.
Wilkins v. Jewett, 139 Mass. 29; Allen v. Evans, 161 Mass. 485; Joy v. Boston Penny Savings Bank, 115 Mass. 60; Brooks v. Curtis, 50 N.Y. 639 (10 Am. Rep. 545).
Speaking upon the question of unconstitutionality of party-wall statutes, Vice Chancellor Pitney says: "And I think it proper to say further, that, but for the express dictum of Chancellor Green in Hunt v. Ambruster, 17 N.J.Eq. 208, I should have thought an act or ordinance authorizing a party to build a wall on his neighbor's land to be, simply, not legislation, but ursurpation."
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 the 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 upon 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, 85 Iowa 164 (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, section 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 refuses 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...
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