Younker v. McCutchen
| Decision Date | 29 September 1916 |
| Docket Number | 29688 |
| Citation | 159 N.W. 441,177 Iowa 634 |
| Parties | FALK J. YOUNKER, Appellant, v. R. R. MCCUTCHEN et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--JAMES P. HEWITT, Judge.
ACTION at law brought by appellant to recover the value of one half of what plaintiff calls a wall in common, owned by and constructed at the cost of the appellant and used by appellee, and to recover for the value of nine inches of ground, being one half of the ground upon which said wall is located. Appellant alleged in his petition that, shortly after the plumbing company removed from defendants' premises, and when, as he says, it had no longer any right in or to the use of the premises nor the building situated thereon, the defendants used and are using the west wall of plaintiff's building up to the top of the second floor thereof, being a distance of 42 feet, as a wall in common, or party wall, and that it is the east wall of the building on their premises; that defendants have made openings in said wall, inserted joists and timbers for the building, and removed bricks therefrom; that they have failed and refused to pay plaintiff the value of so much of said wall as they are using as a wall in common, and for nine inches, or one half, of the ground upon which said wall is located; that the value of the wall as used by defendants is $ 750, and the value of the nine inches of ground, $ 1,125. Trial was had to the court without a jury. At the close of the evidence defendants moved that plaintiff's petition be dismissed and the motion was sustained. Judgment was rendered against plaintiff for costs, and he appeals.
Affirmed.
Strock & Wallace and Miller & Wallingford, for appellant.
Cummins Hume & Bradshaw, for appellees.
The case is somewhat complicated, but the facts are not in dispute. There was some evidence introduced, but the facts are shown largely by the pleadings and the admissions therein and the stipulations of counsel. That there may be a better understanding of the situation, we attach a plat of the properties in controversy.
[SEE PLAT IN ORIGINAL]
The plaintiff and defendants bought their properties at about the same time, in November, 1906. The defendants claim that the wall between the properties is a party wall, under Section 2999 of the Code, to be later referred to, and, as we understand it, appellant claims it to be a party wall, under Code Section 2994 and other sections of the statute; though in his reply argument he claims that the east wall was at no time a party wall, but that, if it was such, that characteristic of the wall was lost when the appellees and appellant entered into the contract fixing the dividing line and made the conveyances to each other which put almost all, if not all, of this wall on plaintiff's premises. No mention is made in that contract and the conveyances, of the wall in question. The contracts fixing the dividing line and the conveyances to each other were executed May 7, 1907. Plaintiff purchased his property of one Bertha Clapp Harbach. On said May 7, 1907, plaintiff was the owner, and, by and through his tenants, was in possession of his property, which is described:
"The east 1/3 of Lot 1 and of the North 1/3 of Lot 2 in Block 1 of the town of Fort Des Moines, now within the corporate limits of the city of Des Moines, Polk County, Iowa."
Plaintiff's property comprised two business lots fronting north on Locust Street, and the business lots were locally known as 712 and 714 Locust Street. There was a public alley east of it, and the property extended south from Locust Street 88 feet. The building on the property was 80 feet deep, leaving a private alley 8 feet wide in the rear. On the date last mentioned, defendants were owners in fee and by their tenants were in possession of their property described as follows:
"The middle 1/3 of Lot 1 and of the north 1/3 of Lot 2, in Block 1 of the town of Fort Des Moines, now within the corporate limits of the city of Des Moines, Polk County, Iowa."
This parcel of land also comprised two business lots, fronting north, adjoining on the west the plaintiff's property. Defendants' lots were locally known as 716 and 718 Locust Street, 716 being east of 718. There were buildings upon both plaintiff's and defendants' properties, partly two story and partly one story. After plaintiff purchased his property, it was learned that the frontage on Locust Street from the alley to Eighth Street was about 2 feet more than 132 feet, as then supposed; that there was some dispute as to the west boundary line of the property described in his contract of purchase; the frontage was divided equally by the three lot owners so that appellant owned 1/3, or 44.72 feet west of the alley and defendants owned 44.72 feet next west; and on May 7, 1907, a written contract, before referred to, was entered into, fixing the boundary line between appellant's and appellees' properties.
The contract of May 7th was signed by plaintiff and defendants and their wives, and by plaintiff's grantor, Bertha Clapp Harbach. The contract established a line 44 feet and 6 19/24 inches west of the east line of Lot 1, and north 1/3 of Lot 2, as the boundary line between the properties, and each party quitclaimed to the other the real estate lying on the other side so established. But no mention was made in this agreement or in any agreement entered into between the plaintiff and defendants of or concerning the party wall then and theretofore separating the buildings upon the adjoining lots.
As the east side of the east wall of the old building, No. 716 Locust Street (defendants' east lot), was .4 of a foot, or 4.8 inches, east of the newly established dividing line at the rear, and as it veered slightly to the east as it approached Locust Street, until, at the south line of Locust Street, its east side was .9 of a foot, or 10.8 inches east of said newly established dividing line, this newly established dividing line cut off most of the east wall, and, at the front, 2 or 3 inches of the building, No. 716. In other words, most of the old wall and 2 or 3 inches of the building itself, near Locust Street, were thus made to extend over and to rest upon the plaintiff's lot. For this reason, as defendants claim, and for the reason that the Des Moines Plumbing Company still held a lease of said building which did not expire until April 1, 1910, the following provisions were incorporated in the agreement, to wit:
At the time this contract was executed, defendants' property, No. 716 Locust Street, was occupied by the Des Moines Plumbing & Heating Company, a copartnership composed of W. M. Kubec and C. W. Rosene, under a 10-year written lease from the former owner of the property, one Sarah A. Clapp. The lease will be referred to later. Some 15 years before the date of the contract fixing the dividing line, or on October 1, 1892, Sarah A. Clapp, the then owner of the premises now owned by defendants, had made an 8-year lease of the premises No. 716 Locust Street to one C. W. Fowler, which lease expired April 1, 1900. The Fowler lease provided that the lessee "agrees not to sell, assign or transfer this lease, nor underlet said premises, or any portion thereof, without the written consent of the lessor." Another paragraph of the lease provides that the lessee "agrees to erect a building, to be used for plumbing and gas fitting purposes on said premises." Another paragraph of the lease provides that the lessee reserves the right "upon the termination of this lease, to remove the buildings from said premises provided he has complied with the covenants and agreements herein contained; otherwise the same shall remain as security for the performance and discharge thereof."
Fowler built the building No. 716 shortly after he leased the premises, and plaintiff in his petition alleges that he built it in compliance with said written lease. Defendants, in their answer, admit that Fowler built the building in the summer of 1892. Kubec, one of the occupants testified that he had been a member of the Des Moines Plumbing & Heating Company for 19 or 20 years and that Fowler built the building and that the plumbing company went into the property in the early 90's. The 10-year lease before referred to, from Sarah A. Clapp to the plumbing company for the property known as 716 Locust...
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