Dorsey v. Habersack

Boyd, J.,

delivered the opinion of the parties.

The appellee was the owner of a house and lot in the city of Baltimore which adjoined a vacant lot owned by the appellant which he was about to improve. Some negotiations for the use of the wall of the appellee’s house resulted in the execution of an agreement under seal between them, which was acknowledged and recorded in the Land Records of Baltimore City. After reciting the ownership of the respective properties, Mr. Dorsey’s desire to build a three-story brick building and that he “ has agreed to purchase the right to use the westernmost wall of said Habersack’s house as a party or division wall, and the right to build *125 into and-against the same,” Mr. and Mrs. Habersack, in consideration of thirty-five dollars, granted to him “ the full right, privilege and license to place joists to the depth of four inches and to otherwise build into and against the westernmost wall of said Engelina Habersack’s house above mentioned, and to otherwise use the same as a party or division wall; also to extend said division wall southerly for a distance of about twelve feet further upon said Haber-sack’s ground; provided, however, the said William C. Dorsey will promptly repair, or cause to be repaired, all damages done to the said Engelina Habersack’s house by reason of the exercise of the rights and privileges hereby granted him,” etc.

The appellee, who was plaintiff below, sued the appellant for damages. The declaration, which is peculiarly drawn, contains three counts, and the defendant plead the general issue as to certain allegations and license under the above agreement or deed, as it is called in the plea, as to the others. The plaintiff claimed that the agreement had been altered after its execution, and a great deal of the evidence was on that question, which, however, is not before us. The first exception was taken to the ruling of the Court in admitting some photographs offered by the plaintiff The objection to them is upon the ground that there was no evidence to show that they were correct and accurate ; but that on the contrary the testimony of the photographer was to the effect that he had altered the negatives. But there is nothing substantial in this objection, as there is sufficient evidence of the experience, etc., of the photographer to justify the Court in admitting them, and as both sides had photographs in evidence the jury could judge of their accuracy from the testimony of the witnesses.

The important question in the case is whether the Court below erred in granting the plaintiff’s fifth prayer, which instructed the jury that if they found “ that the defendant built on top of the west wall of the plaintiff’s house a wall two or three feet in height and extended the materials of *126 said wall so built by him over the whole thickness of the plaintiff’s said west wall for its whole length, and built upon the plaintiff’s chimneys several courses of brick, increasing thereby the height thereof, then the defendant is not entitled to rely on said deed as a defence against his so building his said wall on the whole thickness of the plaintiff’s said west wall or against his so building on the plaintiff’s chimneys.” The effect of granting that was to instruct the jury that the defendant had no right under the agreement to build on the wall of the plaintiff, or raise it higher than it was. In thus construing the agreement we think the Court erred. The plaintiff was not only authorized to place joists to the depth of four inches and to otherwise build into «and against the wall, but to “otherwise use the same as a party or division wall.”

It is no longer an open question as to whether one having the use of a party wall can build on it. In the recent case of Poultney v. Depkin, decided at the October term, 1894, of this Court, and referred to in 80 Md., xviii , in the list of cases designated “Not to be Reported,” which can be found in 30 Altantic Reporter, 705, the Court said in reference to an agreement that the defendant might have the right to use the wall of the plaintiff’s warehouse as a party wall: “ Under this agreement the defendant had the right, upon the payment or tender of the sum agreed upon, to use the wall for the purposes to which a party wall can be subjected i. e., to build upon it or to insert his joist in it or even to tear it down and build a new wall; provided, the plaintiff’s rights were properly protected, or he was paid all damages to which he might be thereby subjected.”

It makes no difference whether the wall be partially on the land of each contiguous owner, or only on the land of one, for although the term “party wall,” may ordinarily refer to the prior case, “A division wall may become a party wall by agreement, either actual or presumed, and although such wall might have been built exclusively upon the land of one.” Brown v. Werner, 40 Md. 20 . In this case the use *127 of the wall was purchased as a party or division wall, and the consideration agreed upon by the parties paid. The special mention of the right to place joists to the depth of four inches and to otherwise build into and against the wall cannot exclude or limit the other and important provision. In contracting for the use of the wall as a party wall it wras perfectly competent for them to determine the depth to which the joists should be inserted, and although unnecessary to state it, as it would have been covered by the agreement for the use of the party wall, the provision to otherwise build into and against the wall does not exclude the general provision. Ascertaining the intention of the parties from the written instrument, as we must do, it is perfectly manifest the plaintiff intended to sell and the defendant intended to purchase the right to use the westernmost wall of Mrs. Habersack’s house as a party wall. If there could be any doubt about it, the recital in the agreement would seem to settle it, as it says, “ Whereas the said William C. Dorsey being the owner of a vacant lot of ground immediaaely adjoining the lot above described on the west, and anxious to erect thereon a three-story brick building, has agreed to purchase the right to use the westernmost wall of the said Haber sack's house as a party or division tv all and the right to build into and against the same." There is nothing from which we can infer that it was intended to prohibit Mr. Dorsey from building his house higher than the appellee’s. The only possible limitation as to the height that can be inferred is from the recital that it was to be a three-story house, which it is. The agreement protected the appellee by requiring Dorsey to promptly repair all damages done to her house by reason of the exercise of the rights and privileges, etc., granted to him.

The theory of the plaintiff’s seventh prayer is 'for the most part correct. In view of what we have said about the 5th, the reference to raising the wall might be misleading, and it might be more distinctly brought to the attention of the jury that the alleged loss for the “ non-occupation of *128 her house by tenants ” must be occasioned by the damaged condition of the house owing to the acts of the defendant. The defendant’s fourth prayer was properly rejected. It was the duty of the appellant, under the very terms of the contract,-to repair all damages done to the house, and such an instruction would have been misleading. ■ It is not necessary to discuss the defendant’s fifth prayer or the second interrogatory, and we do not understand that the exception to the rejection of the third interrogatory is pressed in this Court.

(Decided June 18th, 1896.)

It is sufficient to say that it would be taking.a very broad view of chapter 185, of the laws of 1894, to suppose that it required or authorized, the Court to have the jury determine the amount of injury occasioned by some of a number of acts done by the defendant. In many cases it might be impossible for them to determine definitely what proportion of an alleged injury was sustained by one of several acts. In this case the alleged damage done might have been the result of building on, into and agaiitst the wall and cutting holes in the same for joists, and not alone from any one cause.

As the amount involved in this appeal is very small, we regret the necessity of disturbing, the verdict, but as there was error-in granting the plaintiff’s fifth prayer, which may have materially affected the result, we must reverse the judgment.

Judgment reversed and new trial awarded with costs to the appellant.