Western Nat. Bank's Appeal

• Decision Date: 16 April 1883
• Citation: 102 Pa. 171
• Parties: Appeal of the Western National Bank.
• Court: Pennsylvania Supreme Court

Page 171

102 Pa. 171

Appeal of the Western National Bank.

Supreme Court of Pennsylvania.

January 19 and 22, 1883.

April 16, 1883.

January 19th and 22nd 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

Appeal from the Court of Common Pleas No. , of Philadelphia county: In equity: Of July Term 1882, No. 166.

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C. Stuart Patterson, for appellant.—The wall in controversy is altogether within appellant's property line, except the footing of the foundation, which projects at the front at the distance of twelve feet two inches below the footway seven and three-fourth inches over the line, and at the rear at the distance of eight feet seven inches below the footway where it projects two and three-fourth inches over the line. If the appellees have any right to that wall, or to its use, that right must be established either under party-wall legislation or as an easement by prescription, for it is not pretended that any such right has ever been expressly granted to the appellees. There is at common law no right to build a party wall over a neighbor's land: Barlow v. Norman, 2 W. Bl. 959. The right to build a party wall is either statutory or acquired as an easement, and is subjected to an easement adverse to its exercise: Wells v. Ody, 1 M. & W. 452; Titterton v. Conyers, 5 Taunton 465; Crofts v. Haldane, L. R., 2 Q. B. 194; Weston v. Arnold, 8 L. R. Ch. App. 1084.

The object of party-wall legislation is "the regulation of party-walls so as to secure the largest inner front to dwellings." Equality and mutuality of burdens and benefits is, therefore, the essential principle of the system. The Act of 1721 authorizes the regulation of party-walls whose "foundation shall be laid equally upon the lands of persons between whom such party-wall is to be made." The Act of 1782 directs the regulators to make a record. As ALLISON, P. J., said in Beaver v. Nutter, 10 Phila. 346, a wall made wholly upon the land of one party "could in no proper sense be regarded as a party-wall." This wall must therefore have been placed by agreement where it stands. As HARE, P. J., said in Doyle v. Ritter, 6 Phila. 577, "There is no room for the operation of statutes which were only meant to apply where . . . it would be a trespass to erect a party-wall without an authority in law." There is no proof that the regulators ever did regulate the party-wall and it is not to be assumed: 1st. That there was a record; 2d. That there was extrinsic notice to the appellant; and 3d. That the regulators disobeyed the statute and did not place the wall equally upon the lands of the two parties. In Godshall v. Mariam, 1 Binn. 342, it was proven that a regulation had been in fact made. Milne's Appeal, 2 W. N. C. 513 is not in point, for Milne had entered upon his neighbor's land and appropriated part of it as a foundation for his party-wall and the wall complained of was built upon that foundation, and was in continuation of that which was admitted a party-wall. Even if the wall had been originally a party-wall the appellant's deed from the appellee's predecessor in their title which conveyed the wall to appellant prevents appellee from claiming the wall: United States v. Appleton, 1 Sumner 500; Clark v. Cogge, Cro. Jac. 170; Pinnington v. Galland, 9 Exch. 1. The cases of Pyer v. Carter, 1 H. & N. 916; Richards v. Rose, 9 Exch. 218 are overruled by Suffield v. Brown, 10 Jur. N. S. 111, and by Crossley v. Lightowler, L. R. 2 Ch. App. 478, and are inconsistent with White v. Bass, 7 H. & N. 722; Kieffer v. Imhoff, 2 Casey 438; Maynard v. Esher, 5 Har. 222; Oat v. Middleton, 2 Miles 248; Norris v. Adams, 2 Miles 337; Doyle v. Ritter, 6 Phila. 577, and Butterworth v. Crawford, 46 New York, 349. As HARE, P. J., said in Doyle v. Ritter, the grantee takes title to the wall, but grantor has by implied reservation an easement, that is, "a right to require that the wall shall not be removed to the injury of the building." The appellee's user must be the measure of their right: Martin v. Goble, 1 Camp. 320; Goddard on Easements, p. 188; Crossley v. Lightowler, supra; Lanfranchi v. Mackenzie, L. R. 4 Eq. 421; Murchie v. Black, 19 C. B. N. S. 190; Price v. McConnell, 27 Ill. 255; Partridge v. Gilbert, 15 N. Y. 601; Sherred v. Cisco, 4 Sandf. 480; Eno v. Del Vecchio, 4 Duer, 53; 6 Id. 17; Turnpike Co. v. Piper, 1 W. N. C. 237; L. & C. Turnpike Co.'s Appeal, 30 P. F. S. 427.

The extent of the easement and the servitude to which it has subjected appellant's property now prevents appellees from asserting a right to enforce party-wall legislation as against the appellant, but under that legislation the appellees cannot appropriate an existing wall, for the Act of 20th May 1857 authorizes the use of a wall as it stands but not an addition to it, because it provides that where a party-wall is insufficient and unfit for the purpose of a new building, that wall must be removed and taken down by the last builder at his own expense in order to make way for the erection of a new party-wall, which shall impose an equal burden on the two properties. The appellees' easement in the old wall will not justify their building on top of it, nor their overlapping its front: Duncan v. Hanbest, 2 Brewster 362; Ogden v. Jones, 2 Bosworth 685; Maxwell v. East River Bank, 3 Id. 124; Church v. Keech, 5 Id. 691; Nash v. Kemp, 12 Hun 592.

The appellees are now using the appellant's wall to an amount largely in excess of the statutory limit of ten inches in the foundation and six and a half inches above. Bailey's Appeal, 1 W. N. C. 350, does not decide that such use can lawfully be made, but does decide that if the owner of the wall permits the use he can compel the using party to pay for such increased use. The appellant is entitled to compensation for the appellees' use of the wall, and on that ground alone the appellant is entitled to a decree, for the Act of 1721 requires compensation to be made before "the next builder shall any ways use or break into the said wall:" and this right will be enforced by injunction: Cox v. Willetts, 2 Am. L. J. 327; Sutcliff v. Isaacs, 1 Pars. 494.

A. Sydney Biddle, for the appellees.—The eighteen-inch dividing wall was a party-wall when it was built in 1837, under the then existing legislation, to wit, the Act of February 24th 1721, which in the third section defines a party-wall to be a "wall to be built between party and party." The succeeding provision in the Act that the "foundation shall be equally laid upon the lands of the persons between whom such party-wall is to be made" is directory merely, and it has been decided that a mistake in the equal laying of the foundation does not change the character of the wall as a party-wall: Godshall v. Mariam, 1 Binney 356; Milne's Appeal, 2 W. N. C. 513. The Act of 1721 is silent as to the position of any portion of the wall except the foundation. The position of the foundation therefore determines the character of the entire wall. The thickness of the wall is wholly immaterial. There is no new statutory definition of a party-wall since the Act of 1721. The Act of 1782, 2 Sm. L. 48, was passed to render effectual the prior Act of 1721. The Act of 1855 did not change the character of party-walls. Nor did the conveyance by the Philadelphia Bank to the Western Bank change its character: Kiefer v. Imhoff, 2 Casey 442; Act of April 10th 1849, § 4, P. L. 600; McGittigan v. Evans, 28 Leg. Intell. 196. Even if the wall were not built as a party-wall, yet being built up to the line, we are entitled to encroach above or in front of it or to use it to the extent of six and a half inches, every such wall being built by the owner subject to the future servitude of being turned into a party-wall to the extent allowed by the Act of 1855.

If not a party-wall, there is a prescriptive easement of support. This easement was recognized by the Western Bank in 1872, when they took down their arches and built an additional thirteen-inch wall, to resist the lateral and downward pressure of the old Wood building. The lateral thrust of the new building is less than that caused by the arches of the old Wood building. The perpendicular easement of the old Wood building was the support of a roof; the perpendicular easement of the new Wood building is merely the support for a small distance of a wall six and a half inches thick. The use of the wall as a support for the new Wood building is therefore less than it was for the old Wood building, and as no support has been withdrawn from the Western Bank...