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and the ice formed from the waters falling from it, descend upon the roof of the plaintiff's adjoining building. As thus modified, judgment affirmed, without costs of this appeal to either party.”
James C. Cochrane, for the appellant.
RAPALLO, J. The deed from Everard Peck to the plaintiff states that the wall in controversy was, at the time of the conveyance, being erected by Peck as the west wall of a block of stores. The centre line of the wall is, by the deed, made the easterly boundary of the land conveyed, which includes the land on which the westerly half of the wall stands. It appears that Peck's stores were afterward completed, and the plaintiff erected a building upon his own lot, using the wall as a party wall, and inserting in it the joists of his building. Peck afterward conveyed to the defendant, who made the addition to the height of the wall.
We think that the language of the deed and the acts of the parties show that it was their intention that the wall should be a parts wall for the common use of both lots. The deed states that Peck was at the time erecting the wall, half of which was conveyed, and that it was to be the west wall of his block. This implies that the wall was not then completed, and that Peck was to have the right to complete it and use it as the west wall of his block. If the deed is to be treated as an absolute conveyance, free from any reservation, easement, or privilege in the co-owner of the wall, Peck would have bad no right to proceed to complete it, or, at least, that part which was beyond his line, after the conveyance. It cannot be supposed that such was the intention of the parties. Subsequently to this conveyance the wall has been used for more than twenty years as a party wall.
Although land covered by a party wall remains the several property of the owner of each half, yet the title of each owner is qualified by the easement to which the other is entitled ; and an important question in this case is whether such easement includes the right to increase the height of the wall, provided such increase can be made without detriment to the strength of the wall or to the property of the adjacent owner.
This question, in the absence of statutory regulations upon the subject, does not seem to have been distinctly settled by authority ; but the fact appears in several of the cases relating to party walls that the height had been increased, and there is no intimation that such increase was unlawful. Matts v. Hawkins, 5 Taunton, 20, was an action of trespass. The plaintiff had added to the height of a party wall, and the defendant tore down the addition, for which injury the plaintiff brought trespass. The only point decided was that the parties were not tenants in common of the land, and therefore the action of trespass could be maintained. In Campbell v. Mesier, 4 Jolins. Ch. 334, a party wall, standing equally on two lots, having become ruinous, the owner on one side, against the will and in spite of the prohibition of the adjacent owner, pulled down the wall and rebuilt it higher than it was originally. It was held that the adjacent owner was bound to contribute to the expense of the new wall, but not to the extra expense of making it higher than the old. There is no intimation in the case that the increase of height was wrongful. In Partridge v. Gilbert, 15 N. Y. 601, the new wall built by the defendant was not only higher, but its foundations were deeper than the old wall which it replaced. The right to make these additions was not, however, discussed in the case, and perhaps there was no occasion to discuss it; the action being brought by the tenant of the adjacent lot, whose goods were injured in making the repair, and not by the owner.
In Eno v. Del Vecchio, 4 Duer, 53, it was held that the owner on one side of a party wall might, for the purpose of improving his own premises, underpin the foundation of the wall and sink it deeper if he could do so without injury to the building on the adjoining lot; also, that he might increase, within the limits of his own lot, the thickness, length, or height of the wall, if he could do so without injury to the building on the adjoining lot. Whether he could raise the whole party wall higher, or whether any additional elevation must be wholly within the limits of his own lot, the court expressly declined to decide. .
We think that the right of either of the adjacent owners to increase the height of a party wall, when it can be done without injury to the adjoining building, and the wall is clearls of sufficient strength to safely bear the addition, is necessarily included in the easement. No adjudication adverse to that right has been referred to by counsel or found by us. The party making the addition does it at his peril ; and if injury results, he is liable for all damages. He must insure the safety of the operation. But when safe, it should be allowed. The wall is devoted to the purpose of being used for the common benefit of both tenements. In Hendricks v. Stark, 37 N. Y. 106, it is held that an party wall is in no sense a legal encumbrance upon either property ; that the mutual easements of adjoining proprietors in such walls are a mutual benefit to each, and not a burden, but a valuable appurtenant which passes with the title to the property. This is undoubtedly correct, provided each party is allowed to derive from the wall all the benefit which it is capable of affording without detriment to the other. But if, though of sufficient strength, it cannot be used by either party) in increasing the height of his building, it may prove a serious injury to the property of one desiring to make that improvement, — an improvement which is very usual and often very necessary in crowded cities. The fairer view, and the one generally adopted in legislative provisions on the subject in this and other countries, is to treat a party wall as a structure for the common benefit and convenience of both of the tenen ments which it separates, and to permit either party to make any use of it which he may require, either by deepening the foundation or increasing the height, so far as it can be done without injury to the other. The party making the change, when not required for purposes of repair,
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is absolutely responsible for any damage which it occasions (Eno v. Del Vecchio, 6 Duer, 17); but in so far as he can use the wall in the improvement of his own property, without injury to the wall or the adjoining projerty, there is no good reason why he should not be permitted to do so.
The judge has found that the wall was sufficiently strong to be of the increased height without any injury thereto. He has further found that the carrying up of the wall, under claim of right, was with the knowledge of and without objection from the plaintiff; and that the anchors were inserted with his verbal assent. We think the judge was right in his conclusion of law, that the plaintiff was not entitled to relief, so far as the carrying up of the wall and insertion of the anchors were concerned.
The court at General Term, however, modified the judgment in respect to the roof, so as to restrain the defendants from maintaining it of such construction as to cause water, snow, and ice to fall upon the roof of plaintiff's building. This modification is not appealed from. lin making it, the General Term necessarily held that the Special Term should not have dismissed the complaint, but should have granted that part of the relief prayed for which is embraced in the modification, and should have denied the residue; and it is claimed that the judgment of the General Term is erroneous in affirming the dismissal of the complaint with the modification referred to. The appellant is technically correct in this claim. The more proper form would have been simply to modify the judgment, and render such judgment as the Special Term should have rendered. But the objection is one of form merely, except so far as the question of the costs awarded at Special Term is concerned. This being an equitable action, costs were in the discretion of the court below; and it had power, either at Special or General Term, to decree costs in favor of the defendants, although some part of the relief prayed for was granted. We will not, therefore, disturb the judgment on that ground.
The judgment should be affirmed, with costs.
C. Artificial Watercourses and Drains.
WOOD v. SAUNDERS.
[Reported L. R. 10 Ch. 582.) By an indenture of lease dated the 9th of June, 1870, L. B. Knight Bruce and H. Saunders and his trustees demised to William Wood the mansion and grounds near Roehampton, called the Prtory, with the out-offices, gardens, and pleasure-grounds thereto belonging, containing 9a. 2r. 8p. or thereabouts; together with the free passage and running of water and soil in and to the existing cesspool, and in and through all the drains, sewers, and watercourses then constructed or thereafter to be constructed through the adjoining property of the said L. B. Knight Bruce, for the term of two years; and by the same indenture the lessee had the option of purchasing the premises for £10,000. The lessee exercised that option, and by an indenture dated the 21st of May, 1872, L. B. Knight Bruce and the trustee of a term granted and released unto William Wood, his heirs and assigns, all that messuage or mansion-house situate near Roehampton, in the parish of Putney, in the county of Surrey, called the Priory, being the hereditaments comprised in the thereinbefore stated lease of the 9th of June, 1870, with the out-offices, stables, buildings, gardens, and pleasure-grounds thereto belonging, . . . together with the free running of water and soil in and to the existing cesspool, and in and through all the drains, sewers, and watercourses constructed or thereafter to be constructed through the adjoining property of the said L. B. Knight Bruce, bis heirs or assigns; and together with all buildings, ditches, ways, sewers, drains, watercourses, liberties, privileges, easements, and appurtenances whatsoever to the said messuage and premises belonging, or in any wise appertaining, to have and to hold the hereditaments and premises thereby assured unto and to the use of W. Wood, his heirs and assigns forever.
The only cesspool then existing on the adjoining property of L. B. Knight Bruce was an open ditch or moat, at a distance of 150 yards from the Priory House; and the only drains, sewers, or watercourses then constructed were drains which conveyed the water or soil from the Priory House to the above-mentioned ditch or moat.
At the dates of the lease and of the conveyance the Priory House was adapted for about twenty-five inmates, and a part only of the drainage from the house ran into the ditch or moat. In 1873 W. Wood altered the drains and made them all discharge into the ditch or moat. He also enlarged the house and turned it into a lunatic asylum, in which nearly 150 persons were resident. The consequence was a large increase in the volume of night-soil and drainage, creating, as the defendant Saunders alleged, an intolerable nuisance.
The defendant Saunders appeared to be in possession of the cesspool in question and of the other lands of L. B. Knight Bruce under an agreement made with L. B. Knight Bruce for granting building leases, and had taken proceedings against the plaintiff Wood in respect of the drains as for nuisance, and had, as the plaintiff alleged, threatened to stop up the drains from the Priory.
The plaintiff thereupon filed the bill in this suit to restrain the stors ping up of the drains.
An injunction was granted 'on motion on the usual undertaking for damages.
SIR CHARLES HALL, V.C., expressed his opinion that the plaintiff and the defendant were each partly right and partly wrong. The question was as to the right conferred by the grant, and His Honor agreed with
the defendant that the right of the plaintiff was not enlarged by the grant, but stood as it was at the date of the lease.
The question, therefore, to be determined was, what was the construction of the lease as granting a right during the continuance of that tenancy. It was argued on behalf of the defendant that it was not to be construed, as an ordinary grant, most strongly as against the grantor, but that the onus lay upon the owner of the dominant tenement to show that he had the right irrespective of any such rule of construction. But there was no authority cited in favor of that proposition as applicable to an easement created by grant. The cases referred to were cases of easements originating by user. No doubt that was ordinarily supposed to be under a grant; but there were not in those cases the terms of the grant to be construed, which, according to the ordinary rule, as between grantor and grantee were to be construed most strongly against the grantor.
There were, however, authorities which were clearly the other way. In Williams v. James, Law Rep. 2 C. P. 577, 582, Mr. Justice Willes expressly laid down the law to be so in the case of an easement, and the Vice-Chancellor Malins, in United Land Company v. Great Eastern Railway Company, Law Rep. 17 Eq. 158, 162, referring to the case of South Metropolitan Cemetery Company v. Eden, 16 C. B. 42, laid down the same rule for construing grants of easements.
In this deed, however, there was quite enough to enable the court to put a construction upon it without resorting to any such rule. His Honor then stated and commented on the words of the deeds, observing that in the conveyance there were the usual general words, which were almost always unmeaning, and sometimes contained a reference to easements which had been extinguished.
The defendant had denied that this ditch was the cesspool in question, but in that on the evidence he had failed. He had also failed to prove the representations which he alleged had been made to him by the plaintiff as to the use to be made of the Priory. There had been a stipulation in the lease that the buildings were not to be altered without the lessor's consent, which was never asked for. The right to the passage of soil was not an unrestricted right, but was at that time to some extent limited, as the mansion-house could not be enlarged without the consent of the lessor; and it must be held that the grant was on the same terms as the lease. The words as to the passage of soil could not be held to apply to any additions to the buildings. The plaintiff, therefore, had not made out a right to the passage of soil and water from the building in its enlarged state. It had been said that the right must be construed with regard to the size of the pipe or ditch ; but there was no authority for that proposition. In ascertaining the extent of the right of user of a road when the condition of the adjoining property has been altered, the fact that there was plenty of room in the road had never been taken into consideration. The right must be measured according to the principle laid down by Mr. Justice Willes in Williams v. James,