Zaras v. City of Findlay

• Decision Date: 23 June 1960
• Citation: 112 Ohio App. 367,176 N.E.2d 451,16 O.O.2d 306
• Parties: , 16 O.O.2d 306 ZARAS, Appellee, v. CITY OF FINDLAY, Appellant.
• Court: Ohio Court of Appeals

Page 367

112 Ohio App. 367

176 N.E.2d 451, 16 O.O.2d 306

ZARAS, Appellee, v. CITY OF FINDLAY, Appellant.

Court of Appeals of Ohio, Third District, Hancock County.

June 23, 1960.

Syllabus by the Court

1. A municipal corporation, in constructing an off-street parking facility by torts in carrying out such work. engaging in a proprietary function and is responsible for its otherwise actionable tors in carrying out such work.

2. The damage recoverable for injury to a building by the destruction of an adjoining building is the reasonable cost of restoration or repair, which reasonable cost, and the damages thereby measured, may not exceed the difference in the market value of the property before and after the injury.

3. Where, in an action to recover for injury to a building by the destruction of an adjoining building having a common wall, the evidence shows that, in order to keep the remaining building tenantable, the wall forming such common wall would have to be restored by replacement or extensive repair, it is not prejudicial error for the court, in replying to the jury's question whether 'if * * * [plaintiff] builds a new wall will * * * [defendant] have to help or not,' to explain to the jury that, should it 'give plaintiff anything, the plaintiff cannot then come back upon * * * [defendant] for additional sums of money or expense to build this wall. Your finding should conclude the matter.'

4. An agreement was entered into between two adjoining-property owners whereby the south wall of a 4-story brick building was to constitute the north wall of an adjoining 2-story frame building, which agreement was 'to show that said party wall ['constructed, built and intended as a party wall and * * * used as such'] shall be and remain a party wall * * * and belong to said parties and to be used in common as such by said parties their heirs and assigns forever' but which did not contain either a granting clause or a habendum clause and made no provision for the repair and maintenance of such common wall by anyone. More than 59 years later and following its damage by explosion and a vacancy for 10 or 12 years, a successor-owner (a municipality) of the 4-story building tore such building down in order to construct a parking lot on the property. No portion of the common wall or foundation therefor was taken down but only that portion of the south wall of the 4-story building standing above the north wall of the 2-story building. Such remaining portion of the wall was not capped and no repair work was done thereon. The successor-owner of the 2-story building brought an action against the successor-owner municipality to recover for damage to the portion of the common wall remaining and to his building occasioned by the destruction of the adjoining 4-story building. Held:

I. (a) The agreement did not create a tenancy in common in such wall;

(b) The agreement referred to the immediate use of such wall, rather than to the future availability of the properties or when such use becomes unsuited to the increased value and capabilities of either of the properties;

c) The word, 'forever,' used in the phrase, 'heirs and assigns forever,' in such agreement, is construed to mean that such rights or benefits that either party has in the common wall will pass to such party's respective heirs and assigns so long as such rights and benefits last.

II. The owner of one of such buildings may, with suitable notice and using due and proper care to prevent injury to the other property, remove his portion of such wall in order to conform his improvements to the changes brought about by time in the value and availability of the property.

III. The successor-owner municipality was under no duty to provide any protection to that portion of the common wall left standing, except as required by any failure to use due care.

IV. A charge to the jury, in such action, that 'the [defendant] city * * * may not remove the building in such manner as to mar the appearance or diminish the strength of the party wall, but * * * has a right to remove the structure any time, as long as due care is taken not to weaken the party wall,' prescribes for the successor-owner municipality a greater duty than it was required to perform and permits the jury to find and determine damages for the breach thereof, and is prejudicial.

V. (a) Evidence as to repairs or restoration of the 2-story building should be admitted only as to the injuries which may have been incurred by the owner of such building to his portion of the common wall and the remainder of his building, and any evidence as to the difference in market value should properly be qualified by the consideration that, both before and after the 4-story building was taken down, its owner had the right, by using due care, to remove the portion of the common wall standing on its land;

(b) Evidence of a contractor as to the cost of restoration or repairs to such 2-story building, which is based on the replacement of the entire lower two stories of the common wall and not merely on the repair of the damage, if any, incurred by the owner thereof, is incompetent, and its admission is prejudicial error.

5. In an action founded in tort, where a jury may have found no liability had it been properly instructed on the questions of liability and damages, a remittitur can not cure an erroneous charge on such questions.

Durbin, Navarre, Rizor & DaPore, Lima, for appellee.

Russell E. Rakestraw, City Sol., and John C. Firmin, Findlay, for appellant.

GUERNSEY, Judge.

This is an appeal on questions of law. Among other things, it appears undisputed in evidence that the plaintiff and the defendant city are the owners of adjoining tracts of land on the east side of South Main Street in Findlay, Ohio; that prior to 1958 there stood on defendant's land a four-story brick building and on plaintiff's land a two-story frame building; that the brick south wall of the brick building constituted the north wall of the frame building and was by agreement of the predecessors in title of the respective parties a party wall; that in 1958 the defendant caused the four-story brick building to be completely torn down, with the exception of the first two-story portion of the common wall and the foundation thereunder; and that neither the defendant nor the plaintiff have capped that portion of the party wall which remained standing, nor have they performed any repair work thereon. Plaintiff alleges in his petition that 'the defendant in tearing down its building caused damage to the above mentioned party wall and that the defendant failed to give plaintiffs notice of the defendant's action.' Plaintiff further alleges that 'the defendant has failed to restore the party wall to its former condition and that as a result of defendant's said action, said wall has cracked causing damages to the front of plaintiff's building and the roof of their building; that during the destruction of defendant's building falling bricks cracked the plaintiff's chimney and roof; that one of plaintiff's tenants was forced to move'; and 'that as a direct and proximate result of defendant's acts' plaintiff has been damaged in the amount of $25,000.

It is further undisputed in evidence that the four-story brick building of defendant had suffered explosion damage to its interior some ten or twelve years before it was purchased by defendant; that it remained unoccupied thereafter; that defendant purchased same in order to make the land thereunder available for off-street parking; that the plaintiff knew that the city had acquired this real estate and knew that it was contemplated that it would be used for parking; that the roof and exterior walls of the building were torn down by a contractor under contract with the city; that the city had an employee on the premises during the destruction of the building, who acted in a supervisory capacity; that under his supervision other city employees had laid planks on top of the roof of plaintiff's building to protect it from falling brick; that notwithstanding such protection some damage did occur to the roof of plaintiff's building, which the city employees attempted to repair with roofing cement; that the removal of the four-story building exposed the uncapped top of the wall and the north side thereof to the weather and exposed holes in the wall where joists and other lateral partitions or walls of the building had connected thereto, and created an uneven front end to the wall thus causing some opening into the northwest corner of plaintiff's building; and that at the time of trial it appeared that the mortar in the wall was in poor condition, that some mortar had disappeared from between the bricks, and that the standing wall was in an unsafe condition. There was some testimony that the wall had, in its present condition, been condemned as unsafe by the State Fire Marshal.

Mr. Shafer, a contractor witness for plaintiff, was permitted to testify that the wall could be removed and replaced by a cement block wall and that other repairs specified by plaintiff could be accomplished at an estimated cost of $19,200. Mr. Schaaf, a real estate man and witness for plaintiff, testified that the difference in value of plaintiff's real estate before and after defendant's building was torn down amounted to $15,000. Mr. Ede, a witness for defendant and a real estate man, testified that the plaintiff's real estate had appreciated in value by the amount of $500 by reason of the presence of a parking lot. In fact, the parking lot has never been completed.

The plaintiff having elected to proceed in tort, the case was tried as if the plaintiff had pleaded injuries proximately resulting from the negligence of defendant. The jury returned a verdict in favor of plaintiff in the amount of $19,000 upon which judgment was entered. A motion for new trial having been filed by defendant, the court found 'that there was misconduct of the...