Zeininger v. Schnitzler

• Decision Date: 01 January 1892
• Citation: 48 Kan. 63,28 P. 1007
• Parties: CHARLES ZEININGER v. FRITZ SCHNITZLER
• Court: Kansas Supreme Court

28 P. 1007

48 Kan. 63

CHARLES ZEININGER v. FRITZ SCHNITZLER

Supreme Court of Kansas

January 1, 1892

Error from Sedgwick Court of Common Pleas.

THIS action was brought by Fritz Schnitzler against Charles Zeininger, to recover $ 517.45 and interest, upon a petition alleging that the plaintiff "was the owner of a certain stone foundation and brick wall on the division line between lots Nos. 16 and 18, on Market street, in the city of Wichita, being the south wall of the brick building located on lot No. 18;" and that "the defendant erected a certain brick building on lot No. 16, and in the construction of the building used the south half of the stone foundation and brick wall built by plaintiff as the north wall of the brick building erected on lot No. 16; that the defendant then and there permanently appropriated the south half of the wall to his own exclusive use as a part of his building." The court gave the jury, among others, the following instructions:

"1. If you find that the wall in controversy was erected by plaintiff on the line between his lot and that of defendant with the knowledge and acquiescence of defendant, and the defendant afterward erected his building upon his own lot and used the wall so erected in the construction of his building and appropriated the wall to his own use and uses, and is benefited by the wall equally with the plaintiff, then you should find for the plaintiff, and assess the amount of his recovery at the value of one-half the wall, as it was at the time of such appropriation, with interest on such sum from the date of such appropriation to this time, at the rate of 7 per cent. per annum.

"2. If you find from the evidence that, prior to the erection of the wall in controversy, the exact location of the division line between the lots of the parties was a matter of uncertainty, and a survey was made and a line run as such division line, and both parties at the time acquiesced in the line so run as being the division line between their lots and further find that the plaintiff, acting upon the faith that such was the true line, and with the knowledge and acquiescence of the defendant, proceeded to erect his wall upon such line, one-half upon his own side and one-half upon the defendant's side of said. line, and that afterward defendant built up to and incorporated such wall into his own building as the division wall between his own and plaintiff's building, then you should find that the defendant cannot deprive the plaintiff of his property in the wall so erected, even though it should appear from the evidence that the line so run and located was not in fact the true line between said lots, and that the wall was built wholly on defendant's lot."

The jury returned a verdict for the plaintiff below against the defendant below for the sum of $657.88. The jury also made the following special findings:

"Ques. 1. Upon whose land is the party wall in controversy built? If wholly on land of one party, or partly on land of each, so state. Ans. Evidence don't show.

"Q 2. Was there any agreement between the plaintiff that the party wall should be built on its present location? A. Yes.

"Q 3. Was the plaintiff induced by any act, conduct or speech of the defendant to build a party wall on its present location? A. Yes.

"Q 4. Did the defendant, at or prior to the time when the plaintiff was building the party wall, know or pretend to know where the true division line between lots 16 and 18 on Market street was? A. No.

"Q 5. Did the defendant...