McCormick v. Bishop

Dillon, Oh. J.

i homestisad • common. This case arises out of that of Rhodes, Pegram & Co. v. McCormick, 4 Iowa, 368 . The Present opinion presupposes an acquaintance with the facts of that case. Plaintiff’s counsel disclaim in theif written argument any attempt to deny that that decision, so far as it goes, governs and fixes the rights of the parties, whatever may be their opinion of its correctness. On the faith of that judgment, the defendant may be presumed to have acquired his ownership of the property he claims, and that decision, as between these parties, must be taken and accepted as the basis of their respective rights.

*238 Under it the title to the soil of the whole lot is in McCormick, the present plaintiff. The first floor and the cellar were held to be liable to sale on execution, and of these the present defendant is the owner. The other portion of the building belongs to the plaintiff.

Concerning the respective rights, duties and obligations of the parties, the decision in i Iowa, supra,, uses this language:

“ The second objection is one arising from a supposed inconvenience or difficulty in settling the rights of the respective owners. But why any more inconvenience than if the parties had voluntarily, or by agreement, thus settled their respective interests ? It is not very unusual, certainly, for one person to own the soil and the first floor of a building, and another the second, and perhaps the third, story of the same building. So one may own the soil, and other parties each own the different floors; and instances have doubtless occurred, where the owner of the soil has leased or conveyed to another the right to build the first story and occupy the same; and by agreement acquired the right to build on the same walls other stories, to be owned and occupied by himself. The respective rights of the pan-ties under such circumstances, when not controlled by contract, are easily settled by legal rules. And the same rules which obtain when the parties become voluntarily thus related, must govern when the relation is an involuntary one. We need not refer in detail to their respective rights and obligations, nor do more than to say, generally, that each is to use his own so as to do as little injury to the froperty of the other as possible. The title to the soil remains, in the case before us, in the defendant or owner of the homestead. The purchaser under the execution acquires the right to the possession of the first floor and cellar, amd every part of each ; which right is to continue *239 so long as the same is iena/ntahle. He may rent it, and in every respect use and enjoy it, as his own property, having regal’d to the rights of the persons owning and occupying the remaining portion of the building. He has a right to protect his walls; to make all necessary repairs; and to all needful means of access to his said premises. The owner or occupant of the upper stories is to be in no manner disturbed in the possession of said premises; has a right to pass and repass by the ordinary and constructed passage or stairway, so as to enjoy and use his homestead ; but must do nothing to endanger the property of the purchaser under execution, nor to unnecessarily impair his rights. This is all we deem it necessary to say, at present, in reference to the legal rights and obligations resulting from this somewhat unusual division of this property. Guided by these suggestions or rules, there need be no reasonable ground for future trouble or difficulty.”

This, it is obvious, regards the parties, not as owners in common, but as having separate interests, as being in fact adjoining tenants, and not tenants in common. The interests of the parties is several, and is already divided.

So far, then, as the petition asks that the property may be partitioned, or sold and the proceeds divided, it is plain that there is no ground on which the court can order this to be done.

a. supreme practice, There is some embarrassment to the court in the disposition of this case, arising out of uncertainty of purpose, for which many allegations, relating to want of repairs, obstructions in the use and enjoyment of the plaintiff’s property, etc., are made. If these are made for the purpose of showing that the plaintiff does not find his homestead to be comfortable and convenient, and to base thereon a claim to have all sold, it is *240 our opinion that these cannot form the foundation of any such right.

If these and similar allegations' are made for the purpose, as stated in argument, “ of having the law of the case more fully declared and the plaintiff’s rights defined,” this cannot be done in advance and generally, but only upon a case made, presenting specific grounds of action or specific questions for judicial settlement. So far as this record presents such questions, we can decide them, but no further. As to taxes, there need be no practical difficulty. In contemplation of law, each party has a title to his portion of the property, and each must pay taxes on his own. So as to repairs.

As each owns his part separately, so each must make thereon, at his own expense, at least all ordinary and usual repairs. The rules of law as to the rights and duties of adjoining tenants, in this respect, will apply to the peculiar relation of the parties with respect to this property. See Washburne on Easements, and cases and authorities cited in chap. 4, sec. 5, p. 480, et seq. As to extraordinary repairs, and liability to contribute to the repairs of other portions, such as flues, supports, etc., such questions .must be settled when the nature of and the necessity for the repairs are precisely ascertained, and no rule can be definitely stated beforehand.

It is averred in the petition that the plaintiff is obstructed in the use and enjoyment of the ground in the rear of the store, and that the defendant claims the right of passage in and out of the back door, over the plaintiffs lot; and that he throws offal, etc., upon it. By the original decision the adjoining property belongs to the plaintiff; and any unwarrantable use of it by the defendant will give the plaintiff the ground for an action for damages, or perhaps for other relief on a petition properly framed for that purpose.

*241 It is said in the former opinion that the defendant herein would be entitled “ to all needful means of access to his said premises.” Assuming that •this would give him the right of way over the plaintiff’s adjoining ground for access to rear door of store, a petition would lie, in case of disagreement, to have the right of way located; on the other hand, if no such right of way exists, plaintiff could sue for trespasses upon the adjoining lot, and in a proper case might have preventive relief. So if the defendant by allowing his portion to remain out of repair, was endangering the safety of the plaintiff’s premises above, a court of equity would, in a proper case, compel the defendant to make the repairs, or to allow the plaintiff to do so at the defendant’s expense, wholly or in part, as might be determined to be right and just. This observation is made upon the assumption that the defendant does not propose to abandqn his portion of the premises to the plaintiff. Putting upon the petition its most natural construction, it is the opinion of the court that the demurrer was rightly sustained, and its judgement is affirmed.

In view, however, of the nature of the case, and the somewhat uncertain purpose with which several material allegations are made, it is deemed proper to remand the cause, with leave to the plaintiff to amend if he shall be so advised.

Affirmed and remanded.