
    Margaret Heartt, Resp’t, v. Adolph Kruger, App’lt.
    
      (Court of Appeals,
    
    
      Filed June 3, 1890.)
    
    Easements—Party wall—No right to rebuild where burned.
    The implied agreement that a party wall, existing at the time oi" conveyances of two lots by their common owner, should continue in its use and occupation as such, cannot be'extended so as to relate to a changed condition of things, caused by the casual destruction of the wall and buildings.
    Appeal from judgment of- the New York superior court, general term, affirming judgment in favor of plaintiff.
    
      John Hardy, for app’lt; James J. Thomson, for resp’t.
   Gray, J.

The plaintiff and defendant are owners of adjoining lots of land in the city of Hew York, and their litigation, in the shape of an action of ejectment, is over the question of whether or not their tenements are subject to a perpetual party wall easement ; dominant as to the defendant’s and servient as to the plaintiff’s properties.

This question, as it is presented by the case before us, does not seem to have arisen before in our courts, though there are several reported cases which, I think, suggest the principle of decision. Some are referred to in the well considered opinion of Judge In-graham, speaking for the general term below. I think, indeed, ■ we might leave the decision of this case with his opinion were it not ..or the importance which, perhaps, the question involved possesses for real estate owners .in cities. That consideration fairly warrants some expression of the views which lead us to uphold the judgments of the courts below.

In 1874 these lots were owned by one Burchell. He erected upon them two buildings, five stories in height, with a party wall dividing them of twelve inches in width. He conveyed both premises to one Falk, and took back from his grantee a mortgage on the lot now owned by this defendant, which described the westerly line of the lot as “ running southerly and parallel with Tenth avenue and partly through the centre of a party wall fifty feet and five inches to the northerly side of Fifty-fourth street” With this conveyance of both lots and the cotemporaneous mortga yng of one of them commenced the severance of the tenements, and whatever rights of easements have existed, with respect to the division wall, which partly supported both houses, they took their rise and form in those transactions.

Through the conveyance upon a foreclosure sale of the mortgagee! premises, and other mesne conveyances, the defendant acquired his title. In 1887 the buildings on both lots were wholly , urned down and only the foundation or cellar wall remained, pan which had been erected the party wall, and it was while the premises were in that condition that this defendant became their owner. He then built upon them, erecting upon the old foundatian wall a party wall two stories high and of the same thickness as the former one. This erection of the new wall partly upon the adjoining lot was without any other right in the defendant than was to be found in the conditions of his title. There is some pretence of an estoppel upon the plaintiff, by 'reason of interviews with her husband upon the subject of rebuilding; but there is no foundation for that defense, or for the defense of acquiescence, and we need not stop to consider that feature. The question thus arises as to whether, after the destruction of the buildings by fire, any right remained in the defendant, as appurtenant to his property, under which he could claim the continuance of an easement in the plaintiff's property, for the support of another party wall. Where will we find the legal foundation for such a. claim ? There had certainly been no agreement, and there was no express grant of any easement in the land by the common owner, Falk, and I do not see how any grant arose by implication from his mortgaging the lot now owned by the defendant. The only language in the mortgage capable of such an implication was in the description of the westerly boundary, which I have quoted above. That, however, was merely language of description, and while sufficient to create a servitude in the adjoining lot for the purposes of the existing party wall, was insufficient to predidate any grant of a perpetual easement upon. It was merély the statement of the fact that the dividing line of the two lots ran through the centre of what was a party wall, so that the claim of the defendant to a continued easement in the plaintiff’s land must depend wholly upon this reasoning, namely, that a party wall had formerly existed there, and that because the foundation wall remained, that fact sufficed to preserve unimpaired the right to a reconstruction of a party wall.

The defendant insists that the wall did not cease to be a party wall after the fire, and he cites in support of his position Brondage v. Warner, 2 Hill, 145. His argument amounts to this, in effect, that if any fragment of the wall was left, or if only the foundation or cellar wall, upon which it stood, remained, in the legal vision the party wall still stood with its accompanying burden or benefit to the adjoining properties. But that I consider a doctrine untenable and clashing with the doctrine of property rights in land. Brondage v. Warner, supra, affords no support for it, for there the defendant’s right to use and occupy the wall in question lay in grant The deed, under which the defendant in ejectment claimed the right to continue to use the wall, granted the right to build upon and occupy it. That had been done. The fire, which had destroyed the plaintiff’s store, left the wall standing, which was occupied by the defendant. It still answered the purpose for which its use had been deeded, and, therefore, the court held that the right to continue to use it had not been affected. The facts of this case are quite other. When the title to these two lots was severed by their conveyance to separate persons, the purchaser of each lot is presumed to have contracted in reference to the condition of the property at the time, and the openly existing arrangement of a party wall could not be changed, so long as it stood and answered its purpose. It was made a party wall upon the severance of the title by the description of the boundary line; but the whole extent of the qualification, which resulted as to each lot owner’s title, was the easement which the other acquired in the wall dividing and supporting their respective buildings. Each was bound to preserve the existing order of things, in that respect, and neither had any right to change the relative condition of his building to the injury of the adjoining one. The party wall of the two buildings was an open and visible condition of the ownership of the property, and, in legal contemplation, its use as such, while the buildings stood, was an element which entered into the contract of the purchaser and which charged the land with a servitude. This principle of obligation is asserted in several cases; of which I only cite Lampman v. Milks, 21 N. Y., 507; Curtiss v. Ayrault, 47 id., 79, and Rogers v. Sinsheimer, 50 id., 646.

But, upon the destruction of the buildings, the tenements reverted to their original, or primary, conditions of ownership. Their tenure was no longer qualified by the relative rights and obligations which previously existed. In the early case of Sherred v. Cisco, 4 Sandf., 485, the facts were quite similar to those in this record. Adjoining buildings were destroyed by fire and nothing was left of a party wall but the stone foundation. The plaintiff rebuilt on his lot, and when the defendant also rebuilt, he made use of the wall for his buildings which plaintiff had erected on the old foundation. Thereupon, plaintiff sued to recover of defendant his contribution towards the expense of the erection, and failed in his suit. In his opinion, Judge Sanford held that the agreement, under which the party wall had been built, related to that wall only; and he said, “that when the owners of. adjoining-city lots unite in building two stores with a party wall, we have aro 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 principle of that decision I think was a correct one, and it may be well applied here. The implied agreement that the party wall, existing at the time of the conveyance of the two lots by their common owner, should continue in its use and occupation as such, cannot be extended so as to relate to a changed condition of things, caused by the casual destruction of the wall and buildings. In Partridge v. Gilbert, 15 N. Y., 601, Judge Denio, in his opinion upon the case, approves of Judge Sanford’s opinion in the case cited. He held that upon the occurrence of a state of affaii-s rendering the party wall useless in its then condition, “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.” The facts of that case were not, of course, similar; for the action related to the right of the tenant of a building to recover damages for injuries to goods, etc., occasioned during the rebuilding by the defendant of a division wall. The case turned upon the necessity for the removal of the old and the rebuilding of a new wall. But the opinions are instrucr tive upon the subject before us; however unnecessary, in that respect, to the decision of that particular case. Yery appropriately to this case, Judge Denio remarked, also, in his opinion, that “ 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 of 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 the other; and the division wall which would suit one of them would be inapplicable to the objects of the other.”

The rules which, with the cessation of the necessity for the existence of a right, abrogates the right itself, is supported by the reason of the thing, as well as by legal principles. The mutual easements existed by force of the situation at the time of the severance of the ownership of the two lots, and, with the change in that situation, produced by the casual destruction of the buildings, the reason for their existence ceased. Thenceforth, they were inapplicable, and the lands were free for the lawful uses of their owners. The easement was measured, in its extent and duration, by the existence of the necessity for it. When the necessity ceased, as it did by the destruction of the buildings and wall, the rights resulting from it ceased also. Ogden v. Jennings, 62 N. Y., 531.

In Holmes v. Goring, 2 Bing. Rep., 76, that principle was laid down in the case of a right of way.

Without further discussion of principle or authorities, I think the judgment appealed from was clearly right, and, therefore, should be affirmed, with costs.

All concur, except Ruger, Oh. J., and O’Brien, J., not voting, 
      
      
         Affirming 25 N. Y. State Rep., 686.
     