
    MARGARET HEARTT, Plaintiff v. ADOLPH KRUGER, Defendant.
    
      Party wall, one mode of establishing easement of, terminated by destruction of buildings.
    
    Where the owner of two houses conveys one (retaining the other), making the boundary of the one conveyed the centre line of the wall between the two, that wall becomes a party wall.
    Where the buildings which have for their common support a party wall are entirely destroyed, the party wall itself being so far destroyed that there is nothing left of it but the foundation and two feet of wall on that foundation, the easement of the owners of the land on which the party wall stood in the lands of .each other for the purposes of a party wall is thereby terminated.
    Before Freedman and Ingraham, JJ.
    
      Decided January 7, 1889.
    Application by plaintiff for judgment on the verdict of the jury in favor of the plaintiff by direction of the court, subject to the opinion of the court at general term.
    One Burchell, being the owner of two adjoining lots 503 and 505 West Fifty-fourth street, 503 being the most easterly lot, built on them two houses each five stories high, having a party wall between them twelve inches thick. He sold both lots with the houses erected thereon to one Falk who, on April 20, 1875, gave back to Burchell a mortgage on 503. This mortgage was foreclosed and the defendant on July 2, 1887, derived title to this lot from the purchaser at the foreclosure sale by various mesne conveyances.
    Falk, also, on April 23, 1875, mortgaged lot 505 to Rachel Collins. This mortgage was also foreclosed, and the plaintiff on August 25, 1879, derived title to this lot by deed from the purchaser at the foreclosure sale. The mortgage on 503 was recorded before that on 505.
    The description in the mortgage on, and in the various deeds of, lot 503 gave the westerly boundary as running “ partly through the centre of a party wall.” The description in the mortgage on, and the deed of lot 505 contained no reference to a party wall; but the easterly boundary line as given would run partly through the centre of a party wall.
    In 1887, the buildings on both lots were destroyed by fire, as was also the party wall between them except that its foundation up to the curb and two feet of the wall on this foundation were left standing. After this defendant built on his lot a two-story building, rebuilding the party wall twelve inches thick to the height of his new building.
    This action is brought to recover the strip of land 50 feet 2| inches in length by 5 inches in width on the north and 51 inches on the south covered by the westerly portion of the new brick partition wall.
    
      James J. Thomson, attorney and of counsel for plaintiff, on the questions considered in the opinion, argued:—
    The only question is one of law.
    It is insisted by plaintiff that the party wall between the houses 503 and 505 had so far been destroyed as to cease to be a party wall. There is no doubt that the wall was down to the top of the foundation wall and that the five-story houses that it separated and supported were utterly destroyed. So far, then, the party wall had served the purposes for which it had been erected. The question then arises, does the law imply a right to re-erect a party wall after the destruction of the wall down to the foundation wall and the total destruction of the houses which it supported and separated ?
    This Court in Sherred v. Cisco, 4 Sand. (Super. Ct.) 480, decides “ that where two owners of adjoining city lots unite in building two stores with a party wall, we have no right to infer from that act an agreement binding upon them, their heirs and assigns to the end of time to erect another like party wall.” p. 488.—But says the learned counsel for this defendant, the wall has not been destroyed; there remain the yellow pine timber foundation and eight feet of foundation wall, that says he gives the defendant the right to erect a new wall to separate new structures of new height, 'etc., etc. This Court answers this claim in Sherred v. Cisco, p. 485. “ 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.....Neither was under any obligation to rebuild upon his lot or to suffer the other party to place part of a division wall upon it.”
    Speaking of the rights of parties in a party wall, the Court of Appeals, in Partridge v. Gilbert, 15 N. Y. 601, says of a similar right of support: “ This right existed as long as the wall continued to be sufficient for that purpose, and the respective buildings remained in a condition to need and to enjoy that support.”
    
      John Hardy, attorney and of counsel for defendant, on the questions considered in the opinion, argued :—
    I. The wall is a party wall. Webster v. Stevens, 5 Duer, 553; Eno v. Del Vecchio, 6 Ib. 17; Partridge v. Gilbert, 15 N. Y. 601; Brooks v. Curtis, 50 Ib. 639.
    II. It did not cease to be a party wall because it became dilapidated. Brondage v. Warner, 2 Hill, 145; Schile v. Brokhahus, 80 N. Y. 614. Campbell v. Mesier, 4 Johns. Ch. 334, and 6 Ib. 21. This is not a case where the old wall is destroyed, and in which the parties are remitted to their original condition, such as Judge Sanford supposed might sometimes occur. Sherred v. Cisco, 4 Sand. 488, and referred to in Partridge v. Gilbert, 15 N. Y. 601, for the proof, showed that it would have cost the plaintiff $200 to remit the lots to their original condition. The entire foundation wall in this cáse was intact, and so substantial that the Building Department approved of it, and allowed the wall to be continued up, Either owner had the right to increase the height of the wall. Brooks v. Curtis, 50 N. Y. 639. Rebuilding in case of necessity for so thorough a work is repairing, within the proper meaning of that term. Partridge v. Gilbert, 15 N. Y. 608.
   By the Court.—Ingraham, J.

This is an action of ejectment to recover possession of a strip of land covered by a portion of a wall erected by the defendant. In 1874 one Burchell was the owner of both plaintiff’s and defendant’s lots. He erected a building on each lot with a party wall between them twelve inches in width. Subsequently he sold both buildings to one Falk, and took back a mortgage on the house and lot now owned by defendant to secure the sum of $7,000, which mortgage describes the westerly boundary of the premises as “ running southerly and paralleled with Tenth avenue and partly through the centre of a party wall fifty feet and five inches to the northerly side of 54th street.”

The defendant claimed title to the property through a Referee’s deed on the foreclosure of this mortgage. The buildings on both lots were destroyed by fire on the 27th or 28th of May, 1887. The party wall was destroyed, except that the foundation up to the level of the curb and about two feet of the wall on this foundation left, was left standing. The other walls of both buildings were all destroyed down to the foundation walls.

This conveyance of one of the houses by the owner of both, had the effect of making this wall between the two buildings a party wall. See Brooks v. Curtis, 50 N. Y. 642, where it was held, that where the centre line of the wall between two houses is by the deed of one made the boundary line of the lot conveyed, the wall becomes a party wall; and that although the land covered by the party wall remains the several property of the owners of each half, yet the title of each owner is qualified by the easement to which the other is entitled.

The controlling question in this case is the extent and duration of this easement. The precise question presented does not appear to have been determined in this state; but a review of the cases in which the easement granted by such a conveyance has been considered will be useful in determining the question here presented.

The first case which it is important to notice is the case of Campbell v. Mesier, 4 Johns. Ch. 334. It does not appear in the report of that case whether the easement there considered had been created by express grant, or by implication, or whether the wall and the land on which it was built was owned by the parties as tenants in common, or in severalty, subject to an easement. Chancellor Kent held, that where one of the buildings had become old and ruinous, the party wall in a state of ruin and decay, and dangerous and utterly incapable of being repaired, and that it was impossible for the owner to rebuild on his lot without taking down the whole party wall to its foundation, the owner had the right to rebuild the party wall, and that the owner of the other house was liable to contribute to the expense of rebuilding the party wall, and that the Court of Chancery would enforce this contribution.”

The next case to which attention is called, is Sherred v. Cisco, 4 Sand. 485. In that case the plaintiff and defendant owned adjoining buildings supported by a party wall resting on a stone foundation, one half of which was on the land of the plaintiff and the other on the land of the defendant. Both of the buildings were destroyed by fire and nothing left of the party wall except the stone foundation. Immediately after the fire plaintiff proceeded to rebuild on his lot. The wall on the side of the defendant’s lot was built on the foundations of the former wall. Subsequently defendant built on his lot using the wall built by the plaintiff as one of the walls of his building.

Plaintiff brought that action to compel defendant to contribute towards the expense of the new wall, and it was held that plaintiff could not recover. Sakdfórd, J., in delivering the opinion of the court says. The parties being confessedly restrained from destroying the wall without mutual consent, how is it where the wall has been destroyed by the elements ? the lands on either side are vacant. The agreement upon which the party wall was built related to that wall only. There was no agreement to build a second wall, or to build houses a second time in the event that the original wall and the houses which it supported, should be destroyed. Neither party perhaps thought of such an event. If they had it by no means follows that they would at that time stipulate for a second joint wall.....But without pursuing the views which parties may well be supposed to entertain on their attention being called to a total destruction of the building they are about to erect on a party wall, it sufficies to say that, when two owners of adjoining city lots unite m building two stores with a party wall, we have no right to infer from that act an agreement binding upon them and their heirs and assigns to the end of time to erect another like party wall at their mutual expense when that one is casually destroyed, and so on, as often as the new one shares the same fate.”

The next case is Partridge v. Gilbert, 15 N. Y. 601. The tenant of the building sued to recover damages for taking down a party wall and exposing one side of the buildings. A new wall was built in exactly the same place that was occupied by the old wall. The jury found that the condition of the old party wall was so dangerous that a just regard to the safety of life and property, rendered the removal necessary.

The action was not for rebuilding the new wall, but for damages sustained by the tenant in taking down the old wall and injuring the plaintiff’s goods in the building. The court held that on the finding of the jury the defendant was entitled to judgment.

Shankland, J., says, that the case of Campbell v. Mesier, 4 Johns. Gh. 334, went further than this case requires: that that case assumed the taking down of the old wall to have been justified, which is as far as it was necessary to go in this case, and then intimated a concurrence in the views of Chancellor Kent. Denio, Ch. J., also delivered an opinion in which he said: “ What then is the law in such a case ? Must a party who is ready to rebuild await the actual falling down of his store if the adjoining owner is unwilling, or from having parted with the possession of his property for $ term is unable', to join in rebuilding the wall ? Thi& position would be highly unreasonable and is not sustained by any authority ; ” and in commenting on the opinion of Chancellor Kent in Campbell v. Mesier and the case of Sherred v. Cisco, says, “I do not perceive any solid distinction between a total destruction of the wall and buildings, and a state of things which should require the whole to be rebuilt from the foundation. In either case there is great force in saying that the mutual easements have become inapplicable, and that each proprietor may build as he pleases upon his own land without any obligation to accommodate the other. Circumstances may have materially changed since the adjoining proprietors were content with such walls as would have supported two adjoining dwellings. If the right of mutual support continues, by means of the original arrangements, or by prescription, it is for just such an easement as was originally conceded, or which has been established by long enjoyment. But in the changing condition of our cities and villages, it must often happen, as it did actually happen in this case, that edifices of different dimensions and an entirely different character would be required. And it might happen, too, that the views of one of the proprietors, as to the value and extent of the new buildings, would essentially differ from those of the other; and the division wall, which would suit one of them, would be inapplicable to the objects of the other. If.it were necessary to determine this point in this case, I should be strongly inclined to adopt the views of the late Judge Sakdford in delivering the opinion of the Superior Court in the case just cited.”

The report then says all the judges concurring the judgment was affirmed.

It will be seen that the question of the right to rebuild the party wall after it has been destroyed, was not determined but was considered open.

Brooks v. Curtis, 50 N. Y. 642, was an action to compel defendant to remove the addition to a party wall which he has carried up two stories, and Rapallo, J., in delivering the opinion of the court says: “We think 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 adjacent building, and the wall is clearly of sufficient strength to bear the addition, is necessarily included in the easement.”

In Schile v. Brokhahus, 80 N. Y. 614, the recovery was sustained on the ground that the jury found that the defendant had tom down the wall, claiming that it was wholly on his own land, and Church, Ch, J., says: “ But the questions presented do not require a determination of the precise right of the defendant to interfere with the wall in question.”

From this examination of the cases, it will appear that the question of the right of the owners of a party wall to rebuild after both of the buildings have been destroyed, has never been determined in this state.

The facts in the case of Sherred v. Cisco, (supra), are very like the case at bar, as the two feet of the old wall remaining on top of the foundation is not material. The two buildings were destroyed. There was nothing in existence that required the support of the party wall, and the decision in that case is authority for the position that the easement implied by the grant was' limited to the period that the buildings upon the property at the time the grant was made, and which required the support of the party wall, existed and that the destruction of the buildings and the wall would terminate the right of either party to an easement in the land of the other. The easement is implied because by the grant of adjoining buildings to different persons, it was necessary for the proper and beneficial use of each building that the wall between them should continue. It is therefore presumed to be the intention of the parties that the wall should be a party wall.

See Brooks v. Curtis (supra), where the existence of such easement is based on the presumed intentions of the parties. Can it, however, be said that because the parties intended that the buildings on the property at the time the grant or conveyance was made should have the support of the division wall between the houses, that it was also intended to grant a perpetual easement for a common or party wall, so that after the buildings on the property were destroyed the strip of land on which the party wall had been built should be subject to an easement for the support of a wall for other or different buildings entirely disconnected with the buildings to supply which the easement was granted. It would appear that this was extending an implied grant much further than it is extended in other cases. Thus when a right of way by necessity is granted, such a right is only commensurate with the existence of the necessity upon which the implied grant is founded, and when such necessity ceases the right of way also terminates. N. Y. L. I. Co. v. Milnor, 1 Barb.Ch. 362.

This case is a good illustration of the injustice that would follow from the continuance of such an easement after the buildings had been destroyed. The buildings that had existed upon the property prior to the fire were five-story tenement houses. The law now in force requires for a five-story building where the wall shall be more than fifty feet in height, that the party wall should be sixteen inches thick. The defendant has seen fit to rebuild the party wall twelve inches thick and to build a two story building. The plaintiff is thus compelled in order to use this party wall that he should build a house on his property less than fifty feet high or to surrender to the defendant six inches of his land.

It is clear that it was never intended by the parties when the party wall was established, that the rights thus granted should produce that result. The requirements of a large and constantly changing city are such that restrictions in the use of property should be limited, rather than extended by implication, and full effect can be given to the implied covenant creating the easement by restricting it to the buildings on the property at the time the easement was created.

I am of the opinion, therefore, that plaintiff is entitled to judgment on the verdict with costs.

Freedman, J., concurred.  