Summary
Appeal from the Court of Common Pleas No. , of Philadelphia county: In equity : Of July Term 1882, No. 166.
This wits an appeal by the Western National Bank from a decree of said court, dismissing a bill in equity, filed by the bank against George Wood, trustee, praying for an injunction to restrain the defendant from using as a “party-wall” the eastern wall of the bank building, and other relief.
An answer was filed, and the cause was referred to an Examiner and Master (Wm. Wyune Wister, Jr. Esq.), from whose report the facts appeared to. be as follows :—
The defendant, in 1881, pulled down a building owned by him (as trustee) situate at the southwest corner of Chestnut and Fourth streets, in Philadelphia, the lot on which said building was erected containing in front on Chestnut street 64 feet, and bounded on the west by premises owned by the complainant, on which was erected its bank building. The defendant then proceeded to erect on his lot a large building, and in so doing began and threatened to use and encroach upon, and partly in front of the eastern wall of the complainant’s bank building.
On August 23rd 1881, soon after defendant. had begun to erect a western wall for his new building, of only 13 inches in thickness, abutting upon complainant’s eastern wall, complainant notified him that the eastern wall of the bank building was not a party-wall, but was erected wholly on the bank’s lot. The defendant however continued to erect his western wall, 13 inches in thickness, and on October 1st 1881, began to overlap the front of the bank building, above the first story, to the extent of 6£ inches. Complainant then filed this bill, October 17th 1881, averring that defendant had no right to use said wall as a party-wall, or to enter on complainant’s lot to construct a party-wall, or to overlap complainant’s building. The answer asserted the defendant’s right to use the wall as a party-wall.
The facts relating to the original construction of said wall, and the devolution of title to complainant and defendant of their respective lots, were as follows: — -In 1837 the Philadelphia, bank owned the lot of ground situate at the southwest corner of Chestnut and Fourth streets, having a front on Chestnut street of 64 feet; and the bank of the United States owned the adjoining lot on the west, having a front on Chestnut street of 46 feet 6 inches. In that year these two corporations joined in the , erection on these lots of two several banking houses occupying the full front of both lots, and presenting in front the appearance of one building, though distinct in the interiors. The division wall between the buildings was a solid wall 18 inches thick, the whole of which (except a small part of the foundation, as hereinafter mentioned) was within the line of the United States bank property. Above the first story the front wall of both buildings receded 28 inches from the build ing line of Chestnut street. The base or lower portion of the front wall of the two buildings consisted of a series of arches, which supported that wall above the first story. One of these arches was sprung over the division line between the lots, one abutment thereof resting on the Philadelphia bank lot, the other on the United States bank lot, so that this arch supported at once the western portion of the front of one bank building, and the eastern portion of the front of the other bank building. The interior construction of the lowest story of these buildings consisted also of a system, of arches, mutually supported, latterly, by the division wall; these arches supported the main floor. The joists of the Philadelphia bank building were let into and supported by said division wall; this wall also suppported the roof of both buildings. There was no evidence of any agreement between the Philadelphia bank and the United States bank as to the character of the division wall.
Such being the condition of the buildings, the Philadelphia bank, on May 25th 1847, purchased from the United States bank its lot and building. The deed was made to Eichard D, Wood, then a director of the Philadelphia bank, who took and held the legal title in trust for the Philadelphia bank, which thus became the owner of both said lots and buildings. The description in this deed was, inter alfa, as follows : “ All that certain lot . . . with the marble edifice thereon erected, situate on the south side of Chestnut street . . . beginning at a point at the distance of 64 feet westward from the southwest corner of Chestnut and Fourth streets, and extending thence southward, partly by ground of the Philadelphia bank,. . . on a line parallel with said Fourth street, 104 ft. 10 in. to a point, thence westward .... thence northward ... to the south line of Chestnut street . . . thence eastward along the south line of Chestnut street, 46 feet 6 inches to the place of beginning.”
On June Sth of the same year (1847) by deed'of that date, executed by said Eichard D. Wood, the Western Bank purchased from the Philadelphia Bank the said property lately owned by the United States Bank, the description in the deed being identical with that, in the deed to the said Eichard D. Woo'd, above recited. The title of the Western Bank became vested in the Western National Bank of Philadelphia.
In 1872, the Western National Bank altered the interior arrangement of its building, and built an additional brick wall inside and adjoining the division wall, 13 inches thick with iron beams built into it and bolted to the old wall; this new wall rose from foundation to roof. As to the reason for building this wall, the Master reported : “ The floors and arches being taken away, the division wall was not strong enough, as originally constructed, to sustain the thrust of the arches in the adjoining building.” .This double wall was 31 inches thick and, by reason of the iron beams built in, was much stronger than a single ordinary brick or stone wall of the same thickness would have been.
In 1881, the defendant contracted for the erection of a new building to cover his entire lot, six stories, or about 90 feet in height, in place of his own building which was only 44 feet high. The old building was torn down, and about the same time the Western National Bank made certain changes in front of their building, made necessary by removal of the front of defendant’s old building. The defendant’s contractor underpinned the eastern wall of the Western Bank to the extent of three feet; then built a solid brick wall on his own lot, adjoining the old division wall, 13 inches in thickness, from the foundation up, until it reached the roof af the Western Bank, then carried it over the top of the division wall six and a half additional inches, and ran it up of the thickness of nineteen and a half inches for a short distance, then narrowed it to seventeen and a half inches, and finally, before reaching the roof, to thirteen inches. This front end of this wall started on the building line of Chestnut street, and after reaching the height of the first story of the Western Bank (where the front wall of the latter receded from tne building line), it was carried over the party line six and a half inches, and run up in front of that much of the face of the bank’s building until it reached the roof, and there joined the wall above.
The Master found as a fact, that: “ The division wall between the original buildings was a solid wall of eighteen inches in thickness, the foundations of which rested seven and three fourths inches at the north and two and three-fourths inches at the south end, on the land of the Philadelphia Bank ; above, it was within the line of the United States Bank’s property.” This finding was based on testimony of the district surveyor, and others, that after the erection by defendant of his new western wall, two holes were cut into it, one at the north end, the other at the south end, for the purpose of examining the foundation of the old wall, when the latter was found, at those points, to rest on defendant’s lot, to the extent reported by the Master.
The Master found, as matter of fact, that: “ The western wall of the Wood building, with the additional support it gains from the division wall, is amply sufficient both in strength and thickness for such a structure as the defendants have erected. The division wall between the two buildings, as now constructed, is not subject to any different or greater burden than it previously supported. It required the entire wall, together with the addition built by the Western Bank when its internal arrangements were, altered, to bear the strain imposed by the old building, of the Philadelphia Bank.. The western wall of the Wood building, if newly constructed of its present thickness, and ten additional inches in the foundation, and six and a half above, would be of sufficient strength and up to the requirements of the law ; but it would be inadequate if the existing division wall was pared down to ten inches in the foundation and six and a half above.”
The Master’s report, as to the law, was as follows :—
The next question to. determine is, whether the dividing wall is or is not a party-wall, and this is really the point in controversy. The wall was built by the adjoining owners of two distinct properties, and between separate buildings; for the circumstance that the front for architectural purposes presented' the appearance of but one, is unimportant. It was erected partly on the land of each, the testimony showing that it rested on a foundation which, to the extent of at least seven inches in front and three in the rear, was on the property of the defendants. It also supported the joists of the defendants’ building, which were let into it some seven inches, and sustained the roof of bo.th, besides affording a mutual abutment for the arches hat formed the interior arrangement of the two.
That it thus presented all the characteristics of a party-wall, and was so used for a long series of years, cannot be disputed. Every circumstance strengthens the conviction that it was built and intended as such.
It seems, therefore, to clearly fall within the principle of the decision in Gordon «. .Milne, 2 W. N.' 0. 513, and to be governed thereby. In Gordon v. Milne, the wall only rested three and a half inches on the land of one of the parties, but the court say: “ The character of the wall must be determined in part from its foundation. If the builder starts the latter over the line, and thus takes the land of the adjoining owner, he must carry it up strictly as a party-wall, or at least in such a manner as to give the adjoining owner all the benefit of such a wall. Otherwise the land of the latter would be taken without any corresponding benefit.”
In the present case the wall extends over the defendants’ land more than seven inches, and it may well be doubted, in view of the above decision, even if the builder had never designed this as a party-wall, whether it would have availed to-prevent it. An adjoining owner is not to be debarred of his privilege of a party wall by the mere fact that the builder chooses to recede at any distance above the foundation within his own line. The principle of party-wall legislation is repugnant to any such doctrine. Every one in the city of Philadelphia takes his land subject to the servitude of a party-wall, and to hold that the first builder, even when he builds strictly on the party line, can deprive the adjoining owner of his right to build against it, and to carry his wall over the top to the extent allowed by law, seems to the master subversive of the object of the statute. But the evidence in this case completely negatives the idea of there being any intention on the part of the builders .to consider this other than a party-wall. It is far stronger than the case of Gordon v. Milne, 2 W. N. C. 513, as there was no attempt in that case to use it as such, and the argument relied on against it rested on the fact of there being no ground for presuming that the wall had been constructed for the common benefit of both parties. Here, on the contrary, not only was there ground for such presumption, but it was clearly demonstrated that it was so constructed and so used. Roth parties treated it as a party wall from its first erection to the present time, and the two buildings being once owned by the same person cannot vary the status of the present owners.
And, in the opinion of the Master, the principle invoked by complainants, that the lot and wall having been first conveyed to the Western National Bank by the defendants’ predecessors in title, without reserving an easement therein, they and their grantees are estopped from asserting any right in derogation of the grant, does not apply.
The right to the use of a party-wall is a right reserved by statute, of which all persons are presumed to haye knowledge, and which nothing less than an express relinquishment could bar; it is therefore essentially different from the ease of a grantor asserting a right incompatible with the absolute enjoyment of his grant.
Moreover, where there is an existing user, the purchaser of the servient tenement takes with notice, and is bound thereby, although his grantor is the owner of the dominant tenement; this is the very principle decided in Kieffer v. Imhoff, 2 Casey 445. The exact point, however, seems to have been determined adversely to the complainants in Beaver v. Nutter, 10 Phila. 345; McGittigan v. Evans, 8 Phila. 264.
This might be thought conclusive of the question, but it was strenuously contended by the able and ingenious counsel of the complainants: That the Acts of 1721 and 1782, which . were in force at the time the wall was built, only authorized the construction of a new wall upon vacant ground, in which case the foundations must be laid equally upon the land of the persons between whom such party-wall is to be made; that this was compulsory, and the present foundations not being equally on the ground of both, it was not a party-wall. And that the Acts of 1855 and 1857, by virtue of which the defendants have used the six and a half inches within the complainants’ line are inapplicable, because the latter’s title to maintain the wall up to the line had vested prior to those enactments, and any attempt on the part of the legislature to give another the right to build six and one-half inches thereon would be unconstitutional.
And further, that under the Act of'1857, where a party proposed to erect a new building, . and there was a good and sufficient wall already existing on the line of the adjoining premises, his only course was to take it down and build a party* wall at liis own expense. This is not the Master’s interpretation either of the scope or intention of party-wall legislation.
It is a wise and judicious regulation of what would otherwise be the cause of endless disputes, and in all thickly-built cities seems an absolute necessity. If, being in derogation of the common law, such legislation is not to be improperly extended, it certainly is not to be emasculated by undue strictness.
Because the Act of 1771 provides that the foundations shall be laid equally on the land of both parties, to hold there cannot be a party wall when this is not the case, seems literally to stick in the bark. . -
The provision clearly intended to fix the maximum of encroachment, and not to eompel the wall to rest half on each owner’s lot. It must be perfectly immaterial whether the inequality arose from a mistake of the surveyors, as in Godshall v. Mariam, 1 Binn. 352, or by the consent of the parties for reasons of their own ; the fact is patent, that the wall was regarded as a party wall, and rested on the land of both. And it can be no greater infringement of the complainants’ constitutional right, that the adjoining owner should have the power to encroach a certain distance on his wall than that he' should to the like extent on his land.
Nor does it seem probable that the statute intended to prohibit the builder of a new structure from using a good and substantial wall already existing, but actually compels him to take it down regardless of its capability, and build anew. This would be imposing an unnecessary burden for no reason, and might seriously affect the enjoyment of the adjoining owner.
The statute indeed negatives by its very terms any such inference, for it provides “ that it shall be the duty of the inspectors, upon the application of any one about to erect a new building, to examine the party or division walls on the adjoining lot, which shall have been erected prior thereto, and if deemed and adjudged by them to be insufficient and unfit for the purpose of the new building, then to have them removed or taken down,”, thereby indicating in the plainest and most significant way, that it is only when the wall is insufficient ,nd unfit that it is to be taken down, and if not taken down, the light to build on and against it seems indisputable.
Thus far the question considered has been solely in reference to the right to build on the division or party-wall above, but it is manifest that the right to overlap in front rests on precisely similar grounds, and therefore must be equally lawful.
If the views of the Master in regard to defendants’ right are correct in the one case, they are unquestionably so in the other. The same principles are involved in both, and the conelusion must 'be the same. The defendants had an undoubted right to build up to the line of the street, and since the law nowhere defines the extent of a party-wall, but authorizes an adjoining owner .to erect one on any part or throughout the wíiole line of his property, if the defendants would be justified in removing the wall already existing to the height of the first story, and erecting a new one, resting to the legal extent on the bank’s lot in front, it follows from the opinion already expressed that they had a right to build in the manner they have. This may appear to be in conflict with the decision in Duncan v. Hanbest, 2 Brewster 862; but a careful consideration of that case has led the Master to the conclusion that unless there was some evidence of an understanding or agreement between the adjoining owners at the time the party-wall was first built, that it should always thereafter remain the same, the decision is opposed to the intent as well as the letter of the law.
If the mere fact that the first builder chooses to recede from the street line deprives the adjoining owner of the right to build on the unoccupied space in front, it is a qualification of the right secured to him by law for which the Act furnishes no authority, and it is easy to conceive of a case in which he might virtually be deprived of all benefit thereunder. There is, moreover, a distinction between the cases, for in Duncan v. Hanbest, both buildings receded from the street, with no wall in front, while in this, there was an existing party-wall to the height of the balcony, up to, and in advance of, the street line.
On the whole, while the Master may have some doubt as to the ground of the decision, he does not think that Duncan v. Hanbest is conclusive of the present case, but holds to the opinion that the defendants were guilty of no trespass in placing their wall the six and a half inches on the bank’s property. ■■
This renders it unnecessary to discuss the question of easement, which forms the third ground of defence, and it only remains to consider whether the complaints are entitled to relief under their alternative prayer for compensation. At the time the wall was erected, the right of the builder to compensation was a chose in action, a personal right which belonged- to him in his individual capacity, and which did not pass by conveyance to his grantee. Even admitting, then, that the wall was not paid for when built, which there seems but little reason' to doubt, considering the circumstances, it is perfectly clear that the complainants are not entitled to compensation now; any such claim, if it ever existed, has long since been barred by lapse of time, and if still valid, would belong to the first builder; and as it was clearly proved by the testimony of Mr. Crump that the defendants are not at present making any other or greater use of the wall than heretofore, it follows that no compensation is due to complainants.
The master recommended a decree dismissing the bill.
Exceptions filed by the complainants to the Master’s findings of fact and rulings of law were dismissed by the court (no opinion filed) and the Master’s report was confirmed and a decree entered dismissing the bill at the cost of the complainant. The complainant thereupon took this appeal, and assigned for error the dismissal of its exceptions, and the decree dismissing the bill.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
