
    John Webster v. Bryan K. Stevens and John A. Stevens.
    When the owners of adjoining lots, by agreement, construct a wall partly on each lot, for the common support of their buildings, the wall so constructed, if used as such for twenty years, is a party-wall, in the legal sense of the term, and the owner of each house has an easement, for its support, in that portion of the wall which stands on the adjoining lot.
    So, when the owner of two adjoining lots erects a building on each, with a wall partly on each lot, for their,common support, a conveyance, by him, of either lot, conveys, with the building, an easement for its support on that part of the wall which stands on the other lot.
    In all cases where such an easement exists, neither owner or occupant can interfere with the wall, to the detriment of the other, without his assent.
    But where such a common wall is erected by tenants for years, although it may be a party-wall, as between themselves, it creates no easement binding on the owner of the reversion in fee, that can prevent such owner, when the term expires, from dealing with his property, as if no such wall had been erected.
    The legal rights of a grantee of a reversioner are exactly the same.
    Judgment for defendants, with costs.
    (Before Hoffman, Slosson and Woodruff, J.J.)
    Heard, April;
    decided, May, 1856.
    This was an action to recover damages for the wrongful taking down, by the defendants, and their servants, of a party-wall, which was alleged to be the common support of a building occupied by the plaintiff, under a lease, and an adjoining building, owned by the defendants.
    The defendants, in their answer, claimed that they had a legal right to take down that part of the wall in question which was on their own lot; that it was this right only that they had exercised, and that, in its exercise, they had acted with all proper care and diligence, and after notice to the plaintiff of their intended proceeding.
    The cause was tried before the Chief Justice, and a jury, in November, 1855.
    When the evidence on both sides was closed, the Chief Justice instructed the jury that the defendants were, in law, entitled to their verdict, and directed them to find a verdict accordingly.
    To this instruction, and direction, the counsel for the plaintiff excepted.
    
      A verdict for the defendants was then entered, but liberty was given to the plaintiff to make a case, containing the proceedings and evidence on the trial, and the exceptions then taken were ordered to be heard, in the first instance, at General Term, and judgment, in the mean time, to be suspended.
    The following are the material facts which, it appears from the case made, were proved upon the trial:
    The plaintiff is lessee, under Daniel Stanton, of .No. 40 Warren street. His lease is dated 15th February, 1850, and is- for seven years from March, 1850, and consequently not yet expired.
    The 'defendants are owners of No. 42, adjoining on the westerly side.
    Both lots were originally owned by Trinity Church. No. 40 was leased by the Church, in May, 1810, to William Cutting, for forty-two years from the 25th March, 1811. The term expired on the 25th March, 1853.
    No. 42 was leased by the Church, in April, 1810; to John Juhel, for forty-two years from the 25th March, 1810. The term expired on the 25th March, 1852, one year before the lease of No. 40.
    In each lease was contained a covenant, by the lessee, that he would erect upon the lot demised to him a three story brick house, within three years from the date of his lease, under the penalty of a forfeiture of the lease; and the right was reserved to the lessee, and his assigns,. “ within ten days after the expiration of the term, but not at any time thereafter, to remove and carry off the materials and all or any buildings to be erected on the demised premises, the fences which should enclose the same only excepted.”
    The lessees each erected a building on his lot, in- pursuance of the conditions of his lease; but the wall between the two houses was constructed, one half on each lot, so as to constitute a party-wall, in the sense of a wall for the mutual support of each house.
    In 1812, Trinity Church conveyed the two lots in fee to St. George’s Church, subject to the two leases aforesaid.
    On the 3d June, 1850, St. George’s Church conveyed, in fee, No. 40 to Julia - Stanton, (the wife of Daniel Stanton, under whom plaintiff claims,) subject to the lease to Cutting, and reciting in the deed the clause of the lease which gave him the privilege of removing the buildings on the lot, within ten days after the expiration of the term.
    
      The lease to Cutting must have been vested in Daniel Stanton before the conveyance to his wife, as his lease to the plaintiff is dated 15th February, 1850; and as his lease to the plaintiff was for a term of seven years, it was, at the time it was made, a demise of a term extending some four years beyond the term of the Cutting lease.
    In February, 1852, St. George’s Church conveyed, in fee, No. 42 to the defendants in this action, subject to the lease to Juhel, with a covenant that the premises were free from all charges and incumbrances, &c., “ saving and excepting all claims lawfully to be made under or by virtue of said lease, and the provisions and stipulations thereof.’’
    The defendants became the holders of this lease, in their own right, by intermediate assignments from Juhel, and thus the term was merged in the larger estate.
    It will thus be seen, that the deed to the defendants of No. 42 was made a little over a year before the expiration of the Cutting lease of No. 40.
    Assuming that the rights, as to the removal of the buildings, reserved by the original leases, was not affected by the subsequent conveyances, the defendants would have a right, under the Juhel lease, to have removed their building within ten days after the 25th of March, 1852, and Stanton, under the Cutting lease, as respects the defendants, within ten days after the 25th of March, 1853.
    In November, 1855, some eight months after the period within which Stanton’s right of removal had expired, and eighteen months after their own right of removal had expired, the defendants took down their building, and in doing so undertook to remove that portion of the common wall which stood on their lot. But finding this impracticable, after progressing to some length, without endangering the plaintiff’s house, the whole wall was taken down by order of the public authorities.
    On the trial the question of negligence in the manner of removing the wall was, by plaintiff’s assent, withdrawn from the jury, and the case turned wholly on the question of law.
    
      John Graham, for the plaintiff,
    contended that the Chief Justice had erred in directing the jury to find a verdict for the defendants, and that, npon the pleadings and evidence, the plaintiff was entitled to a verdict, and that the case ought to have been submitted to the jury to assess the damages which he had sustained. He insisted that as the buildings were not removed at the expiration of the leases, they came into the possession of the reversioners and their grantees, subject to the same rights and easements as when held by the tenants before the expiration of their leases. He cited Eno v. Del Vecchio, (4 Duer, 53; United States v. Appleton, 1 Turner, 500.)
    
      D. Lord, for the defendants,
    insisted that they were clearly entitled to retain the verdict that had been given. Keither of the tenants, he argued, could, by any act or agreement, encumber the reversion of the lot demised to him, or to an adjoining tenant, by creating an easement or otherwise. The easement created by the tenants could last no longer than during the continuance of the term common to both. When that term expired there was an end of the easement as to the reversioner, who was under no obligation to continue the old wall and not to improve his property by new buildings.
   By the Court. Slosson, J.

It is undoubtedly true that where the owners of adjoining lots construct, by mutual consent, a wall, partly on the lot of each, for the common support of the buildings erected by them on their respective lots, and the same is used as a wall for common support for twenty years, such wall is strictly a party-wall, within the legal meaning of that term, and the owner of each house has an easement in the portion of the wall standing on his neighbor’s land for its support.

So also where the owner of two lots erects a building on each, with a common wall for the support of the two, standing partly on each lot, a conveyance of either lot by the original lines of the lot, conveys with the building itself an easement for its support in the portion of the wall standing on the other lot; and it is equally true, that where such easement of support exists, neither owner or occupant of one freehold can interfere with the wall to the detriment of the other, without his assent. (Eno v. Del Vecchio, Superior Court, October term, 1854; 4 Duer, 53.)

In the one case the owners of the lot have, by common consent, at the time of the erection of the wall, and by its subsequent uses, appropriated the same as a párty-wall and have thus estopped themselves as against each other, and consequently as against the grantees of either from denying the easement; and, in the other case, the common owner of both lots having expressly appropriated the wall as a party-wall, is equally estopped, as against his own grantee of one lot, unless, indeed, by the terms of his grant, the covenant is expressly or impliedly taken away.

So, as between the lessees of Trinity Church, in the present case, Cutting and Juhel, neither could, during the term common to both, claim a right to interfere with the easement of the other in the wall, which they had, by common consent, erected, as a party-wall, between them. The only query is, whether this right of easement continued beyond this common term.

It certainly could not, by reason of any assent of the lessees, at the time of its erection, for they had no more right to encumber the reversion than to convey it; and it is equally certain, that there is nothing in the case to warrant the presumption of a grant of such an easement, on the part of the defendants, since the expiration of the term. They remained passive, it is true, eighteen months after the expiration of their lease, but no adjudicated case would justify the holding of such a period sufficient to raise the presumption of a grant.

The period during which this wall was used as a parly-wall, anterior to the expiration of the Church leases, has nothing to do with the question, as against the reversioners.

The case is not to be treated as though St. George’s Church had conveyed the fee, after the expiration of these leases, and of the ten days allowed for the removal of the building. I do not intend to say that, even then, a conveyance, by that Church, of either lot, “ with the appurtenances,” would necessarily have conveyed the easement in question. I incline to the contrary opinion.

It is enough, to say that the conveyances were, in fact, made before the expiration of these leases, and, therefore, before the Church had ever succeeded to the possession, of the reversion of either lot. The question, therefore, of the effect of the union of the two reversions, in possession, in one owner, as affecting the rights of his grantees, does not arise. Each grantee, under the deeds of St. George’s Church, took the reversionary right, as Trinity Church, if she had never parted with her title, would have taken it, clear of every incumbrance created by the lessees.

It must be borne in 'mind, that there is" nothing, in the terms of the original leases, which authorized, or contemplated, the erection of a party-wall; each lessee was bound to build on his own lot, but no right was given to encroach on his neighbor’s lot. The scheme of a party-wall was one of their own contrivance, and for their mutual convenience only.

There is but one aspect of the case which‘seems plausible, and that is, that, as-"the lessees could not remove their buildings after ten days from the expiration of their leases, the buildings, after that period,- if not-removed, became a part of the freehold,- and that the grants-of the Church must be construed as having passed this chance, or possibility, of the non-removal of the buildings, and, with it, -the easement in question, as a necessary “ appurtenant,” in case -the buildings should not be removed. In other words, that the grants, though made anterior to the expiration of the leases, are to be- construed as though made after the ten days had expired, and as- having passed the title to the respective houses, as they then stood, with the mutual easement of support, as one of the appurtenances.

■ The answer to this is, what has been already suggested: the deeds conveyed only the reversionary right, and if that right was not itself-subject to the easement, the mere conveyance of the right, “ with the appurtenances,” would not create the easement.

The plaintiff made a point, that the wall was not removable, by either lessee, as against the reversioners, inasmuch as it was the lateral fence of the respective lots, each half of the wall being the fence of the lot on which it stood.

■- The leases, certainly, in the privilege of removal, excepted the fences enclosing the lots; but to say that either wall of the building was to be left standing, as a fence, while the building itself was to be removed, would be giving, to the clause in question, a latitude of construction quite too broad to be seriously entertained. And, moreover, it is difficult to see what right the plaintiff had to complain-of -the defendants’ breach of their covenant, in this respect. If there is no right of party-wall, the wall, in plaintiff’s theory, constitutes, as respects -the reversioners, two independent fences, and if either reversioner removes his fence, the rights of the other are in no wise affected, and neither has a remedy for it.

The defendants must have judgment, upon the verdict, with costs.  