Hoffman v. Kuhn

Chalmers, J.,

delivered the opinion of the court.

The complainant and the defendants were the owners of adjoining lots in the city of Vicksburg, upon each of which stood brick buildings connected by a party wall, one half of which rested on either lot. The buildings had been so constructed more than twenty years before, by one who then owned both lots; and in consequence of sales by him to different persons, they had become by subsequent conveyances the property in severalty of the parties to this suit. On March 17, 1879, the building of the complainant was totally, and that of the defendants partially, destroyed by fire. The party wall was somewhat injured, but to what extent is a matter of dispute. Both parties were insured by the same company, and upon an estimate of damages made by experts, received payment from the company upon the basis that the party wall had been rendered useless and would have to be rebuilt. The defendants insist that they received their money from the insurance company in bulk and without knowledge that in so doing they obtained payment in full for one half the value of the wall. Shortly afterwards they began to repair or rebuild their house, using the old party wall for this purpose, whereupon the complainant filed this bill, enjoining them from so doing, alleging that the wall was unsafe and dangerous, and praying that it should be torn down and rebuilt from the foundation, if thereafter to be used as a party-wall. The defendants having *750 answered, averring tbe entire safety g,nd trustworthiness of the wall, much testimony was taken on the subject, which seems to have satisfied the Chancellor that the wall was not materially injured and would subserve the purposes of new buildings similar to the old ones. He therefore dismissed the bill. We are not prepared to say that the Chancellor erred in his conclusion of fact, but we think that independently of the question of the condition of the wall, the complainant was entitled to the relief prayed, and it will not be denied him because he rested his claim to it upon improper grounds since it cannot be claimed, except as a matter of costs, that by so doing he has misled his adversary or occasioned any surprise to him. As he was, in our opinion, entitled, upon the destruction of his house, to put an end to the easement previously enjoyed by the defendants in so much of the wall as rested upon his lot, and to decline longer to treat the wall as a party-wall, his legal rights should not be prejudiced because he gave as a reason for desiring to do so the unsafe character of the structure.

The owners of adjoining buildings, connected by a party-wall resting partly upon the soil of each, are neither joint owners nor tenants in common of the wall. Each is possessed in severalty of his own soil up to the dividing line, and of that portion of the wall which rests upon it; but the soil of each, with the wall belonging to him, is burdened with an easement or servitude in favor of the other, to the end that it may afford a support to the wall and building of such other. Each, therefore, is bound to permit his portion of the wall to stand, and to do no act to impair or endanger the strength of his neighbor’s portion, so long as the object for which it was erected, to wit, the common support of the two buildings, can be sub-served ; and each will consequently be liable to the other for any damage sustained by a disregard of this obligation. But the obligation ceases with the purpose for which it was assumed, namely, the support of the houses of which the wall forms a part. If those houses, or either of them, are destroyed without fault upon the part of the owner, he is not bound to rebuild in exactly the same style and in exactly the same spot because his neighbor demands it. That this is true where the *751 wall itself is swept away with the bouse, is settled by authority. Partridge v. Gilbert, 15 N. Y. 601 ; Sherred v. Cisco, 4 Sandf. 480 . It must be equally so where the wall alone remains. A wall is but a portion of a house, and the one is valueless without the other. To hold that so long as the wall stands the owner whose house has been destroyed is compelled to lose the use of his lot or to replace the destroyed building with another of exactly the same pattern, is to sacrifice the greater to the less, and to impose in perpetuity a servitude which was assumed only for a specific purpose. Such a doctrine, if enforced in the growing towns and cities of America, where localities which are dedicated at one time to residences are swallowed up in a few years by the encroaching demands of trade, would be intolerable. If he who has, in conjunction with his neighbor, erected dwelling-houses with party-walls, is thereby obliged, as often as his residence is destroyed, to replace it with one of exactly similar pattern, it would seriously impair the value of property and impose fetters upon its ownership too rigorous to be endured. We think the obligation is only that so long as the houses stand, the owner of neither shall do anything to impair the property of the other, and either shall be at liberty to repair and keep in order the common wall; but when, without the fault of either, the houses are destroyed, the easement is at an end, and each becomes the owner in severalty of his own soil and of so much of the wall as stands upon it, with a perfect right to tear it down or dispose of it in any way he sees proper. The decree will be reversed and the cause remanded, with instructions to enter a decree for the complainant; but as the complainant, by tendering a false issue, is responsible for much of the costs incurred, the costs of the lower court will be divided, the appellees to pay costs of this court.

Decree accordingly.