
    
      [Special Term,
    April, 1870.]
    Richardson v. Frank.
    Where a preliminary injunction bad been allowed to prevent tbe removal of a party wall for tbe purpose of rebuilding, and it appearing that tbe wall was decayed and needed rebuilding, the injunction was dissolved, but the petition retained, in order that any damages caused by negligence in the removing and rebuilding might be recovered. A party wall which needs removal and rebuilding, on account of decay, may be removed and rebuilt by either party, whether the other party consent or not.
    
      Caldwell § Coppock, for plaintiff.
    
      Stallo ‡ Kittredge, contra.
   Storer, J.

The plaintiff, claiming to be the owner, in common with. defendant, of a party wall, which, it is alleged, had existed more than twenty years, and was the division between the buildings on their property, ask the intervention of the court, by injunction, to prevent the defendant from removing the wall, on the ground that it would injuriously affect his property and imperil the safety of the whole building. A restraining order has been allowed. It is now sought to vacate the injunction, and it is proved the wall, whether a party wall or not, is in a very decayed condition, requires to be removed, and a new one established.

Whatever may have been the former opinion, it is now held in Ohio that a party wall is not necessarily a permanent structure, but may be removed by either owner whenever it is necessary for the purpose of repair or to improve the property. •

. The'injunction should, therefore,'be so modified as to permit the plaintiff to remove the wall, first notifying the defendant of the time the work is to commence, and so proceed with the work itself that it will not necessarily injure the plaintiff’s building.

The petition, however, on which the injunction was granted, should remain to enable, the plaintiff, if it should so happen that he sustains unnecessary damage by the act of the defendant, to recover therefor after the work is completed. Hieatt v. Morris, 10 Ohio St. 523.  