Traute v. White

• Decision Date: 03 February 1890
• Parties: TRAUTE et al. v. WHITE.
• Court: New Jersey Court of Chancery

19 A. 196

46 N.J.E. 437

TRAUTE et al.

v. WHITE.

Court of Chancery of New Jersey.

Feb. 3, 1890.

(Syllabus by the Court.)

Mr. Robbins, for complainants. John F. Earned, for defendant.

PITNEY, V. C. The parties are owners of adjoining lots in the city of Camden. Complainants were in advance of the defendant in improving their lot. They built a two-story dwelling on it, less in width than the lot, leaving an alley-way of about three feet next to defendant's lot. Some time afterwards the defendant proceeded to build a dwelling on his lot, and for that purpose took advantage of the ordinances of the city of Camden, authorizing and regulating party-walls, to place a wall eight inches thick only, on the line between the lots, four inches on each side of it, and extended it full two stories high, besides the peak of the gable, which faced the adjoining lots. In the peak of the gable, overlooking complainants' house, he placed a window. He also placed a cornice on it, overhanging complainants' alley-way. Complainants, by their bill, asked that the overhanging cornice be removed, and that the window be closed up. Defendant answered. Just before the hearing defendant removed the cornice, so that at the hearing the sole matter of contest was the overlooking window.

On the part of the defendant it was insisted that no case was made for the action of the court, for the reason that no damages were shown; and that by the well-settled rule in this state as laid down in Hayden v. Dutcher, 31 N. J. Eq. 217, an easement of light and air cannot be acquired by adverse user in this state. Complainants, in reply, insisted that if defendant's wall was a party-wall he had no right to leave any opening in it; and that, whether it was a party-wall or not, if he enjoyed it in its present position, with the opening, for 20 years, he would acquire a right so to continue to enjoy it, so far as it rested on complainants' land in that condition, as an easement in complainants' land. In support of his first point, he cited Vollmer's Appeal, 61 Pa. St. 118, in which Judge READ, after an elaborate review of the course of legislation and decision in that state on the subject, says, at page 128: "From this review of the doctrines applicable to party-walls, it is clear that it must be a solid wall (without openings) of brick or stone, or other incombustible material. This is required by the policy, as well as the letter, of the law."

Without stopping to examine the legislation of Pennsylvania on which this decision is founded, and quite independent of it, I am of the opinion that solidity and freedom from openings is of the very essence of the notion of a party-wall. Its object is to give each party the right and opportunity to use it as a wall, and, so far as there is an opening in it, it is not a wall, and the use of it as such by the adjoining owner is restricted by just so much. If the party building a party-wall may put in it one window, he may put in more, and make them of such size as to render the thing useless to his neighbor. This view is sustained by the case of Sullivan v. Graffort, 35 Iowa, 531. There the wall was built under circumstances precisely similar to those of the case in hand. It was built without openings. The statute of Iowa is silent as to openings in party-walls. Defendant threatened to make openings, and put in windows overlooking complainants' lot. The court enjoined them, on the ground that a party-wall must be solid. If, then, defendant desires at any time hereafter, for any purpose, to claim this wall to be a party-wall, he must make it a solid wall; and a decree must be made that, unless he do so within a day to be fixed, he and his heirs and assigns, owners and occupants of his lot, shall be forever debarred and enjoined from claiming it to be a party-wall for any purpose, at any time, as against complainants, their heirs and assigns, owners and occupants of their lot.

The clause in the charter of Camden, authorizing municipal legislation on this subject, provides that no party-wall shall be less than nine inches thick. The proof shows this wall to be only eight inches thick. It is not necessary now to decide whether defendant can, under any circumstances, claim the benefit of this wall, built of that thickness, as a party-wall. It is proper, however, to say that where the owner of lot A sees that his neighbor, owner of lot B, has made such permanent improvements, in the shape of buildings, on lot B, as shows a manifest intention on his part not to build up to the line between the two properties, and yet, without any agreement with him, proceeds to erect a wall with its center on the line between lots A and B, under the statute and ordinance authorizing him to make such use of lot B, it stands the owner of lot A in hand to be careful that he has complied in every particular with the letter and spirit of the law. I...