action of trespass will not be maintainable. Such an act is more properly the subject-matter of an action upon the case, because it is in the nature of a partial injury, and not of a total destruction of the subjectmatter of the tenancy in common. If tenant for life or tenant for years pull down any wall or other building, it is the subject of an action of waste at the suit of the reversioner. It is expressly laid down in Com. Dig. Estates (K), 8, if one tenant in common of wood, turbary, &c., does waste against the will of another, he shall have waste concerning it. Here the pulling down of the old wall without the consent of the plaintiff might be waste. An action of waste is the proper remedy for a reversioner or landlord against a tenant who pulls down a building; and such an action may be maintained by one tenant in common against another, who has improperly pulled down a wall, the common property of the two. Upon the whole, I am of opinion that trespass is not maintainable. The rule for a new trial must therefore be discharged Rule discharged.

WATSON v. GRAY.

CHANCERY DIVISION. 1880.

[Reported 14 Ch. D. 192.]

THIS action was brought to restrain the commission of certain alleged acts of trespass by the defendant, and for damages.

The plaintiff and the defendant were the owners in fee of adjoining houses, numbered respectively 9 and 7 in a row of houses called Queen's Terrace, in Middlesborough. Queen's Terrace faced to the east, and the defendant's house was situate to the north of the plaintiff's. At the rear of each of the houses was a yard, the yards being separated from each other by a wall four and a half inches thick.

The plaintiff's house and premises were by a deed dated the 15th of September, 1855, conveyed by Joseph Pease and others in fee to Jane Lyons, who was a predecessor in title of the plaintiff. The deed contained the following clause: "It is hereby agreed and declared by and between the said parties hereto that the north and south gables and walls of the said messuage or dwelling-house and hereditaments hereby conveyed shall be and remain party walls, and that the eastern and western walls and the pallisades in front of the said messuage or dwelling-house shall belong exclusively to the said Jane Lyons, her heirs and assigns."

The defendant's house and premises were conveyed to him in fee by the same persons by a deed dated the 27th of December, 1864, which contained a similar declaration as to the north and south walls thereof.

The principal act of trespass complained of by the plaintiff arose in

this way. The plaintiff had recently commenced erecting in his back yard a shed. This shed immediately adjoined the wall separating his yard from the defendant's yard, and the plaintiff had, without the defendant's permission, built on the top of that wall a new piece of wall of a triangular shape about 4 ft. 6 in. in length at the bottom, and about 3 ft. 4 in. in height. In thickness it corresponded with the thickness of the old wall. The new piece of wall was intended to support the roof of the shed. The defendant had knocked down the new piece of the wall. The plaintiff claimed damages for the removal of the new piece of wall, and an injunction to restrain the defendant from interfering with the rebuilding of it.

North, Q. C., and Everitt, for the plaintiff.

J. E. Palmer, for the defendant.

FRY, J., after stating the facts, and observing that the conveyance to the plaintiff would, no doubt, include the walls of the house, if it had not contained the proviso that the north and south walls should be party walls, stated that proviso, and continued:

What is the meaning of the term "party wall," as there used? The words appear to me to express a meaning rather popular than legal, and they may, I think, be used in four different senses.

They may mean, first, a wall of which the two adjoining owners are tenants in common, as in Wiltshire v. Sidford, 1 Man. & Ry. 404, and Cubitt v. Porter, 8 B. & C. 257, 265. I think that the judgments in those cases show that that is the most common and the primary meaning of the term. In the next place, the term may be used to signify a wall divided longitudinally into two strips, one belonging to each of the neighboring owners, as in Matts v. Hawkins, 5 Taunt. 20. Then, thirdly, the term may mean a wall which belongs entirely to one of the adjoin-frobal ing owners. but is subject to an easement or right in the other to have use it maintained as a dividing wall between the two tenements. The term out. is so used in some of the Building Acts. Lastly, the term may desig-' nate a wall divided longitudinally into two moieties, each moiety being subject to a cross easement in favor of the owner of the other moiety. In whichever of these senses the term is used, some difficulty arises. In the case of a longitudinal division between the two neighbors, each of them, as was said in Cubitt v. Porter, 8 B. & C. 257, 264, has a right to pare away one moiety of the wall; and if this was done, the moiety of the other owner might be of very little use to him. Again, if the wall belongs to the adjoining owners as tenants in common, it may become the subject of a partition, and then exactly the same difficulty would arise. To meet this difficulty the fourth meaning of the term "party wall" was suggested by the learned author of the note to Wiltshire v. Sidford, 1 Man. & Ry. 408.

In the present case I have come to the conclusion that the wall must be considered as belonging to the plaintiff and the defendant as tenants in common, first, because the cases show that this is the most ordinary meaning of the words, and, secondly, because in the conveyance of the

in the lave In their count

15th of September, 1855, a party wall is contrasted with a wall belonging exclusively to one owner.

Then the question arises whether what the plaintiff has done is a violation of the defendant's rights. This, it must be remembered, is not the same question as whether an action of trespass could be maintained by the defendant against the plaintiff. I have come to the conclusion that the plaintiff was not justified in doing what he did. In Cubitt v. Porter, 8 B. & C. 265, Bailey, J., said: 66 One tenant in common has upon that which is the subject-matter of the tenaney in common laid bricks and heightened the wall. If that be done further than it ought to have been done, what is the remedy of the other party? He may remove it. That is the only remedy he can have." That is the precise remedy to which the defendant has had recourse in the present case. The case of Stedman v. Smith, 8 E. & B. 1, is also material on this part of the present case. There, as the head-note states, the plaintiff and the defendant occupied adjacent plots of ground divided by a wall of which they were tenants in common. There was a shed on the defendant's ground contiguous to the wall, the roof of which rested on the top of the wall across its whole width. The defendant took the coping-stones off the top of the wall, heightened the wall, replaced the coping-stones on the top, and built a wash-house contiguous to the wall, where the shed bad stood, the roof of the wash-house occupying the whole width of the top of the wall, and he set a stone into the wall, with an inscription on it stating that the wall and the land on which it stood belonged to him." On these facts it was held that a jury might find an actual ouster by the defendant of the plaintiff from the possession of the wall which would constitute an actionable trespass. In the course of the argument, Crompton, J., said: "You certainly had no longer the use of the same wall; you could not put flower-pots on it, for instance. Suppose he had covered it with broken glass, so as to prevent your passing along it, as you were entitled to do." And in his judgment he said: "The plaintiff is excluded from the top of the wall; he might have wished to train fruit-trees there, or to amuse himself by running along the top of the wall." Just so in the present case, the plaintiff has excluded the defendant from the use of the top of the wall. I hold, therefore, the plaintiff is not entitled to any damages in respect of the throwing down of the wall, and that the injunction asked for cannot be granted.

SHERRED v. CISCO.

SUPERIOR COURT OF NEW YORK. 1851.

[Reported 4 Sandf. S. C. 480.]

THIS was a bill in equity, filed in the Supreme Court, from whence the cause was transferred to this court. An answer was put in, a replica

tion filed, and evidence was introduced at the hearing of the cause. The facts disclosed by the pleadings and proofs were as follows.

For several years prior to 1845, the complainant, Sarah Sherred, was seised in fee of a lot known as number thirty-one, on the easterly side of Broad Street, in the city of New York; and Richard Duryee in his lifetime, and after his death his heirs, were scised in fee of the adjoining lot on the north side, known as number twenty-nine. Each lot was covered by a store or warehouse. The buildings were separated by a ingle brick wall, resting on a stone foundation, one half of which was upon the land of Sherred, and the other half on the land of Duryee. The beams of the two stores rested upon this common or party wall. Duryee had executed several mortgages on lot number twenty-nine, which were duly recorded. Prior to July 19th, 1845, Duryee died, and the mortgagees to whom three of the mortgages were executed, commenced proceedings for their foreclosure against Duryee's heirs and the subsequent mortgagees. While the foreclosure was pending, on the 19th of July, 1845, both of the stores, 29 and 31 Broad Street, were destroyed by fire, and nothing was left of the party wall except the stone foundation.

Immediately after the fire, Sherred proceeded to rebuild the store on lot No. 31, extending it a little further in depth than the former building. In rebuilding, her contractors commenced on the stone foundation of the former wall between the stores on 29 and 31, and after raising it with stone about a foot higher than the stone wall was before, built upon it with brick, the side wall of her store, four stories high. The new wall, built at the sole expense of Sherred, thus stood one half on her lot, and the other half on the Duryee lot. Her store was finished in the fall of 1845.

The bill charged that she built this wall after applying to Duryee's heirs to unite with her in so doing, with their assent and approval, and on their agreeing to pay half the expense, if they could obtain the money to rebuild their store. These statements were put in issue, and were not proved.

The foreclosure of Duryee's mortgages resulted in a decree for a sale, under which the defendant Cisco became the purchaser of lot 29, for $15,600, at a sale made by a master in chancery on the 27th of January, 1847. The master conveyed the lot to him on the 15th of February, 1847. The defendant, soon after his purchase, built a warehouse or store on lot 29, and used the wall so built by Sherred for one of the side walls of his store, inserting therein his timbers and beams. The first story of his store extended to the same depth as Sherred's new store, but the upper stories did not extend as far back from the street, by about fourteen feet, as Sherred's store extended. As to those stories, the portion of the party wall not used by the defendant was shown to be a detriment to him, rather than a benefit.

Sherred applied to the defendant to pay half the value of the wall as used by both parties, which he declined to do, on the ground that he

purchased and paid for the half of it standing on his lot, at the master's sale. There was no proof that the defendant had any notice, till after he commenced building, that Sherred had built the party wall at her sole expense, or that she had not been paid for half of it, or that she claimed payment therefor. It was proved that the value of the half of that part of the party wall which the defendant made use of in constructing his store, was $459.14. The value of the entire wall built by Sherred between upon the two lots, was $1146.

J. T. Brady, for the complainant.

W. C. Wetmore and M. S. Bidwell, for the defendant.

BY THE COURT. SANDFORD, J. The plaintiff relies entirely on the case of Campbell v. Mesier, 4 John. Ch. R. 334, and 6 Ibid. 21, to sustain this suit. It was there decided, that where there was an old party wall standing between two houses, which had become ruinous, and the owner of one of the houses being desirous to rebuild his house, after notice to the owner of the other, and a request to him to unite in the work, took down the old wall and rebuilt it on the same site, with and for his new house, the owner of the adjoining house was bound to contribute ratably to the expense of the new wall; but not beyond the extent of the height and quality of the old wall. It was in effect held also, when the case was before the chancellor on the equity reserved in 6 J. C. R. 21, that a purchaser of the house from the owner thus liable, took it subject to the charge upon it for contribution. But we suppose this was on the ground that the purchaser was aware of the claim of his neighbor for contribution when he purchased, as was apparent from his taking a covenant of indemnity in respect of the use of the party wall, in his deed of the house.

We think this case differs from Campbell v. Mesier, so far that the decision of the latter is not controlling. In the first place, the defendant bought his lot with the new wall upon it, without notice of the plaintiff's claim. Next, when the wall in question was built by the plaintiff, there was no party wall in existence. There had been a wall, which served as a partition between the two stores (whether properly called a party wall or not, in the sense used by the chancellor in the case cited, we will not here inquire), but it was destroyed with those stores. The stone foundation that remained does not alter the matter. Either party could remove so much of it as rested on his ground, with the rubbish on his lot, on preparing to rebuild. Then the plaintiff on one side, and the mortgagees on the other, Duryee's heirs really having no interest in the subject, owned two adjoining vacant lots in severalty, where there had once been a partition wall forming the mutual support of two adjoining buildings. The plaintiff, without notice to the mortgagees, and without their assent or knowledge, rebuilt her store, and placed the partition wall on the site of the former one. There was no "equality of right and interest" in an existing wall, which it was necessary, for the two houses then supported by it, should be rebuilt, and in which wall the parties "had an equal inter