Walker v. Stetson

• Decision Date: 05 September 1894
• Parties: WALKER et al. v. STETSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 86

38 N.E. 18

WALKER et al. v. STETSON.

Supreme Judicial Court of Massachusetts, Suffolk.

September 5, 1894

COUNSEL

Jos. Walker and R.W. Boyden, for plaintiffs.

B.L.M Tower and P.F. Hall, for defendant.

OPINION

MORTON J.

The plaintiffs and defendant, respectively, derive title, through mesne conveyances, from the city of Boston. The deeds from the city of Boston to their predecessors in title provide that the owner of the premises conveyed may build one-half of the division wall on the adjoining lots "which half of the wall, when used by the owners of the adjoining lots for building purposes, is to be paid for by them, to the extent so used." In all the mesne conveyances this provision as to party walls was either set out in terms, or incorporated by reference. Under it a party wall had been built along the entire line between their estates by predecessors in title of the plaintiffs and defendant. On the front portion, i.e. towards Boylston street, it was 12 inches thick, and formed a party wall for two brick buildings, three stories high. The respective owners for the time being paid each one-half of the cost of this wall. The rest of the wall was built by the defendant's predecessors in title, and no part of the cost has been paid either by the plaintiffs or their predecessors in title. The plaintiffs acquired title in March, 1890, and proceeded to erect a six-story building, 80 feet in height, and covering their entire lot. They carried up the party wall to the same height. In doing so it became necessary to thicken and strengthen it, and also to strengthen the foundation. This was all done on the premises of the plaintiffs, by them, at their own expense, and without any request, consent, or permission on the part of the defendant, unless it can be implied in law or from the facts. The defendant acquired title in May, 1891, after the plaintiffs had completed the erection of their building, and also erected a six-story building, 80 feet in height, and covering his entire lot. In erecting his building the defendant inserted the timbers into the wall between his premises and those of the plaintiffs four inches, and no more. The timbers do not extend beyond his own land, and are wholly within the one-half part of the old wall, and the additions in height made thereto which stand on his land. He added nothing to the height, thickness, or foundation of the wall. The old party wall, as carried up, with the additions made to it by the plaintiffs, constitutes one solid wall. The plaintiffs introduced testimony tending to show that in respect to height, thickness, foundations, and general character, it was such a wall as good construction required between such buildings, and that the old wall, if carried up of the same thickness, would not have been sufficient. There was also testimony that the old wall would not have conformed, if carried up as it was, to the building law in force in the city of Boston. St. 185, c. 374, § 52. The defendant has offered to pay to the extent to which he has used the old party wall, as carried up by the plaintiffs. But the plaintiffs contend that the defendant is in effect using the whole wall, as thickened and strengthened by them, and that they are entitled, in addition, to compensation for the use of the additions which they have made to the wall, in thickening and strengthening it, and for the use of the land taken for those purposes, or, if they are not, that the defendant should be enjoined from making any use of the wall, as thickened and strengthened, to support the building which he has erected.

The majority of the court does not see how either contention can be supported. We assume that either party had a right to carry up the party wall to any reasonable height, provided they did not thereby impair the wall as it stood, or injure the other party (Everett v. Edwards, 149 Mass. 188 22 N.E. 52; Matthews v. Dixey, 149 Mass. 595, 22 N.E. 61), and that the other party was bound to pay, when he used it, to the extent to which he used it, and that this obligation to pay attached to successive additions in height, as they were made by one party or the other. But we do not see on what ground the defendant can be compelled to do anything more than he has offered to do. The deeds certainly contain no agreement compelling him, and we do not see how one can be implied. Allen v. Evans (Mass.) 37 N.E. 571. The additions made to the wall by the plaintiffs for the purpose of thickening and...