Simonds v. Shields

Hall, J. The purpose of this action was to test the alleged right of the defendants to insert into the plaintiff’s brick wall, the north face of which marks the divisional line between said parties, timbers for the support of a building erected upon the defendants’ land in the city of Norwich. As the facts alleged in the complaint were not disputed, a general denial was improperly pleaded. By the answer and reply the parties evidently intended to raise the question whether the acts of the defendants were within the rights granted by the deed of Dr. Hooker to the Hempsteads. Defendants’ counsel, by their claims to the trial court and their requests to charge, seem to have regarded that question as raised by the pleadings. The court properly treated it as within the issues framed: Formerly the land of the plaintiff was owned by Dr. Hooker, and that of the defendants on the north by the Hempstead sisters. In 1839 each of said parties quitclaimed to the other triangular strips lying between the old divisional line and a new one created by said deeds, the apparent object of said mutual conveyances being to fix the divisional line between them at a light angle to the street on th.e west. The basis of the defendants’ claimed right to use, for the support of the timbers of the addition to their building, the north wall of the plaintiff’s building erected since the date of said deeds, is a provision in one of said deeds — that of Hooker to the Hempsteads, to the latter of whose rights the defendants have succeeded — in which this language is used: “and I hereby agree that they may use my wall to build against or upon if they wish to build.” *145 These words the defendants contend grant them the right to build upon the wall, and, as incident thereto, the right to remove brides therefrom in order to insert timbers into, and rest them upon, the wall. This construction would give to the defendants’ north wall the characteristics of a party wall. It would practically become a divisional wall between contiguous buildings, to be used in common by the owners of the adjoining lands for the purpose of supporting the timbers of such buildings, and as an exterior wall of their respective buildings. At common law a party wall becomes such only by agreement, or by prescription, which supposes an agreement. Whiting v. Gaylord, 66 Conn. 887, 344. The term is usually applied to a wall resting on both sides of the divisional line between the parties, but a wall built wholly upon the land of one of the two adjoining owners may, by force of the terms of the grant, possess the features of a party wall. Washburn on Easements (3d ed.), 566; 16 Amer. Law Reg. 10. The wall of a building wholly upon the land of one of such owners does not, from the fact that it is built up to the divisional line, become a party wall to the extent that the other may build his timbers into it or rest them upon it. To sustain the defendants’ contention it must be held that Dr. Hooker, by the deed laid in evidence, expressly granted to the defendants, as an easement, the right to use this wall as a party wall in the manner claimed, and imposed this servitude upon his land. That it was the intention of the grantor to create such an easement in favor of the Hempsteads and attach it to the dominant estate and render his own estate forever servient thereto, should be made to appear from the plain and direct language of the grantors. Goodwin v. Hamersley, 69 Conn. 115, 121. “In case of an express grant, the fact of the creation of the easement, as well as its nature and extent, is to be determined by the language of the deed, taken in connection with the circumstances existing at the time of making it.” 2 Washburn on Real Property (4th ed.), 301. The language referred to as creating the easement in favor of the Hempsteads immediately follows that by which the *146 grantor reserves the right to project his cornice 18 inches over the defendants’ land, where it is to remain unless the grantees wish to build higher, when they may remove it. It is in that connection that the grantor agrees that they may use his wall to build against or upon. It was clearly contemplated that the grantor should erect his building first, and yet we find no provision for a removal by the grantees of any part of the wall or building when completed, excepting the cornice. To say that after the grantor’s north wall was completed the grantees might use it to build against or upon, and might remove the cornice, if necessary, was not to plainly say that after the completion of the wall they might make openings in its face and insert the timbers of their building and have them supported by such wall. It was the duty of the court to construe the language of this provision. 1 Greenl. on Evidence (18th ed.), § 277, note 2: Auffmordt v. Stevens, 46 Conn. 411. And in so doing it might be read in connection with the language of the other deed from the Hemps teads to Dr. Hooker, as the latter was between the same parties, apparently executed at the same time, and related to the same subject-matter as the deed under consideration. The two deeds are to be treated as parts of one agreement. 1 Greenl. on Evidence, § 283; Isham v. Morgan, 9 Conn. 374, 378. In the latter deed the Hempsteads grant to Dr. Hooker the right to extend his eaves 18 inches over the divisional line .and reserve to themselves, not the right to use the grantee’s wall for the support of the .timbers of their building, but “ the right to build on the foundation wall ” which the grantee may build to set his house upon, and to remove the grantee’s cornice in ease they should build higher than the grantee’s building. Reading these deeds together it seems very clear that no suela, easement was created as gave the defendants and their successors in title the right, for the purposes of such support, to insert the timbers of their building into the wall of the ifeu'ilding erected by Hooker. The prevision relative to building “against or upon” the wall, -or .upon. “ the foundation wall ” to be built by Dr. *147 Hooker, may have been inserted in these deeds because the parties thought it necessary or proper to provide that the right granted to and reserved by Dr. Hooker, to extend the eaves of his building beyond the divisional line, should not prevent the owners of the land on the north from building under such projecting eaves against or up to the north face of the wall of the Hooker building. The plaintiff was entitled to prove that luis foundation wall projected beyond the north face of his brick wall. It was proof of an act of Dr. Hooker consistent with the language of the deed of the Hempsteads to him, and, in connection therewith, tended to sustain the plaintiff’s interpretation of the words in the other deed: “ they may use my wall to build against or upon. ” The deed from Hooker to the Hempsteads having been offered by the defense, the other deed, and in connection with it evidence of the projection of the foundation wall, was admissible in rebuttal. There was nothing erroneous in the action of the court with reference to receiving the verdict. The proper form of procedure upon the return of a verdict is discussed in the recent case of Magoohan v. Curan, 71 Conn. 551. There is no error. In this opinion the other judges -concurred.