
    MAINTENANCE OF AN OVERHANGING CORNICE ENJOINED.
    Court of Appeals for Shelby County.
    Henry F. Young et al v. Ignatius Henry Thedieck.
    Decided, February 13, 1918.
    
      Overhanging Cornice — Party Wall — Easement—Mandatory Injunction Against Maintenance of Cornice — Property Bights Above the Same as Those on the Surface.
    
    1. The construction and maintenance by one lot owner, of a cornice extending beyond the party wall over the lot of an adjoining proprietor without his acquiescence or consent is a violation of the latter’s property rights.
    2. The establishment of a party wall does not by implication give one proprietor the right to extend his structure over the adjoining lot.
    3. The fact that the overhanging cornice is constructed above the present building on the adjoining lot and does not affect the present use thereof is no defense.
    4. Mandatory injunction is an appropriate remedy to enforce the property rights so violated.
    
      D. F. Mills, for plaintiff.
    
      Hess & Hess, contra.
   Allread, J.

This action was brought to obtain a mandatory injunction to compel the removal of .an overhanging cornice.

' The pleadings and agreed statement of facts show that in the construction of a four-story building, the defendant extended the cornice some two or three feet over the premises of plaintiff. It appears that the cornice is above the plaintiff’s building and does not interfere with the present use of the plaintiff’s property.

There is a party wall between the buildings of the respective parties which has been extended upward to accommodate and form part of the defendant’s structure.

The question involved is as to the defendant’s right to maintain the overhanging cornice.

We are of opinion that the defendant’s easement in the party wall does not extend beyond the wall itself, and that the construction and maintenance of the cornice extending over plaintiff’s premises is a violation of his property rights. Harrington v. McCarthy, 169 Mass., 492; Nash v. Kemp, 49 Howard Pr., 523, 12 Hun., 592; Marion v. Johnson, 23 La. Ann., 593.

We have examined the cases cited by counsel-for defendant involving windows, chimneys and upward extensions of party walls. In none of those cases do we find any overhanging structures extending beyond the partition wall. We think all the cases may be distinguished upon that ground.

We are also of the opinion that the fact that the cornice does not now interfere with plaintiff’s use of their property does not affect the question. The plaintiff’s property right extends upward indefinitely and those rights may be enforced against invasion to the same extent as surface rights.

A mandatory injunction will, therefore, be issued requiring the defendant to remove the cornice and overhanging structure within six months .and defendant will be required to pay costs..

Decree accordingly.

Kunkle, J., and Ferneding, J., concur.  