
    ELLEN E. BARTLEY vs. HARVEY SPAULDING et al.
    Party Wall.
    One of the uses of a party -wall being to afford a complete division between adjoining houses, the opening of windows in such a wall by one owner to the discomfort and inconvenience of the adjoining owner, is an injury which equity will redress by injunction; following Corcoran vs. Nailor, 6 Mackey, 580.
    In Equity.
    No. 1171.
    Decided June 24, 1892.
    The Chief Justice and Justices James and Bradley sitting.
    Hearing on an appeal by the defendants from a decree of the special term granting an injunction.
    
      Affirmed.
    
    The facts are sufficiently stated in the opinion.
    Messrs, Harvey Spaulding and Westel Willoughby for defendants (appellants):
    The injury complained of is not the injury to the wall itself, but' that the privacy of complainant’s room is destroyed, this being the gravamen of her complaint.
    That such an injury is not actionable will appear from the following authorities: 7 Am. Dec., 46; 46 Am. Dec., 461, and note; 42 Am. Dec., 582, n.
    Mr. E. A. Newman, for complainant (appellee):
    It was clearly a trespass for the defendants to cut the windows, whether the wall was wholly upon the complainant’s lot, or the same was a party wall, and trespass will be enjoined in all cases where, from the nature of the trespass, or the circumstances of the parties, the remedy at law cannot be full and adequate. 3 Wait’s Actions and Defenses, 700, and authorities cited. Livingston vs. Livingston, 6 John. Ch., 497; Amelung vs. Seekamp, 9 Gill & J., 468; Sullivan vs. Hearden, 11 Ga., 294; Whitfield vs. Rogers, 26 Miss., 84; Corcoran vs. Nailor, 6 Mack., 580; Brooks vs. Diaz, 35 Ala., 599; Phillips vs. Boardman, 4 Allen, 147; Danenhower vs. Divine,. 51 Texas, 480; High on Injunctions, §§332, 792, 852.
    In Fowler vs. Saks, 18 Dist. of Col., 570, the subject of party wall is discussed, and the court use this language:
    “If tenants in common, each has the right to have his interest in common undisturbed; if they are tenants in severalty, each has the right to one-half of the wall in severalty, and to the 'support of the other half. On general principles it would seem neither one has the right to disturb the wall.”
    In Corcoran vs. Nailor, 6 Mack., p. 580 (a case in many resjaects similar to this), the court dealt elaborately with the question of the rights of adjoining proprietors in party walls, and clearly decided that no windows or other openings are to be made therein; that equity has jurisdiction, and a mandatory writ of injunction is the proper remedy. Many authorities are cited in the case in support of this opinion.
   Mr. Justice James

delivered the opinion of the Court:

This was a suit for an injunction requiring the defendant Spaulding to close certain windows in what is alleged to’ be a party wall, overlooking the premises of the complainant and interfering directly with her enjoyment and with the privacy of certain rooms in, her house. It appears that the complainant and the defendant are owners of two adjoining properties, originally belonging to Alexander R. Shepherd in his subdivision of square 164. The houses were sold at different periods by Shepherd as lots 12 and 13. The defendant claims "some peculiar right, on the ground that Shepherd’s conveyance of his title was prior to that of 'the complainant and that in that way it became necessary, in order to save any rights to the party wall so-called to the complainant, that there should have been a reservation out of the deed to Spaulding. His claim is that he bought the whole division wall as an appurtenance.

■Where a wall is built in a row of houses the whole of it is not an appurtenance to one of them. The purchaser of each house acquires half of the division wall as a party wall. One of the houses runs back further than the other, but stands partly on each lot. The defendant was limited, therefore, to his right in a party wall.

We have already considered this question in the case of Patrick Corcoran vs. Washington Nailor, in 6 Mackey, 580, and the court has no reason to doubt at all the law as there laid down. We there said: “The servitude imposed in invitzim is to be construed with the utmost strictness. It renders the occupation of another’s land lawful only when the wall with which it is occupied satisfies the reason and purpose for which the easement was imposed. The servient owner is compelled to submit to the burden only on the ground that the thing imposed is, in contemplation of law, a benefit equally to him and to the dominant owner; in other words, that it at once stands ready for his enjoyment for all the purposes which a party wall is intended to serve. These purposes include several uses. It is intended, in the first place, to serve for the support, at any point, of the beams which the servient owner may reasonably have occasion to insert in a supporting walk This forbids the construction of openings where beams cannot be inserted, and support cannot be afforded. In the next place, it is intended to serve the purpose of a complete division between adjoining houses. This forbids the construction of spaces in it which do not divide. It is no answer to say that the dominant owner stands ready to fill up the opening whenever the servient owner desires to use the wall as a' party wall. That very statement admits that it had not been meantime a party wall, and the Servitude only renders lawful occupation by an actual party wall. The occupation meantime by what is not a party wall is -not the enjoyment of an easement, but is simply a trespass.

“ If a wall with windows or openings is not a party wall within the intention of the rule, it imposes the servitude of such a wall and is therefore a trespass. We have to consider next that a trespass is accompanied in this case with constant circumstances, which caused discomfort and inconvenience to the injured party in the enjoyment of the rest of his land. Windows overlooking his domestic ground diminish the proper enjoyment of the premises and impair their value.”

The court then went on to say: “That not only must an opening be closed, but that it must be done in a particular manner, that is to say, the brick-work used in closing the opening should not be a mere patch, but should connect with the adjoining wall in the usual manner of a continuous wall.” That is to say, it is -qot to be patch-work, or a square patch of bricks filled in, because that does not give the support to the wall that it should have as a party wall.

We affirm the injunction granted below with this modification, that these window frames are to be removed, and the space is to be built up just as the rest of the wall was built. Not a square patch of work put in, but the bricks are to interlock and the wall is to be made as solid as a party wall should have been made.

With that addition the decree of the Equity Court is affirmed.  