George v. . Smathers

OlarksoN, J. At the close of plaintiff’s evidence and at the close of all the evidence defendant moved for judgment as in case of nonsuit. C. S., 567. The court below overruled the motions and in this we can find no error. George v. Smathers, 196 N. C., 514. The court below charged the jury as follows: “The law in this State is that where one adjoining owner constructs a party wall, one-half on his own land and one-half on the land of the adjoining owner, and the *213 adjoining owner fails to contribute to tbe expense or tbe cost of tbe wall, after tbe wall bas been built by tbe party in question and tbe adjoining property owner joins bis building to tbe wall and uses it — makes use of it without paying tbe man wbo built tbe wall bis balf of tbe costs of tbe wall — tbe man wbo builds tbe wall can bring bis action against tbe man wbo owns tbe adjoining land, and tbe man wbo is using tbe wall without paying for bis balf, and recover for balf tbe costs of tbe wall. Therefore, in this case, if you are satisfied, from this evidence, and by its greater weight, that tbe plaintiff, C. A. George, constructed a party wall on tbe line between himself and Dr. Smathers; and if you should find that after tbe wall was completed, or before tbe wall was begun, or during tbe period of its construction, tbe'plaintiff, C. A. George, asked tbe defendant, J. H. Smathers, to contribute bis balf of tbe costs of tbe wall, and if you should further find from tbe evidence, after tbe wall was built and paid for by tbe plaintiff, George, that Dr. Smathers erected a building on bis lot, adjoining tbe lot owned by tbe plaintiff, George, and attached bis building to tbe wall built by tbe plaintiff and used tbe wall built by George, then George would be entitled to recover from Dr. Smathers for one-balf of tbe costs of that wall.” Tbe defendant excepted and assigned error to tbe foregoing charge. Tbe assignment of error cannot be sustained. We think tbe case, of Reid v. King, 158 N. C., 85, is practically on all-fours with tbe case at bar, and fully sustains tbe charge of tbe court below. “Contracts implied in law, or more properly quasi or constructive contracts, are a class of obligations which are imposed or created by law without regard to tbe assent of tbe party bound, on tbe ground that they are dictated by reason and justice, and which are allowed to be enforced by an action ex contractu. They rest solely on a legal fiction, and are not contract obligations at all in tbe true sense, for there is no agreement; but they are clothed with tbe semblance of contract for the purpose of tbe remedy, and tbe obligation arises not from consent, as in case of true contracts, but from tbe law or natural equity. So, when tbe party to be bound is under a legal obligation to perform tbe duty from which bis promise is inferred, tbe law may infer a promise even as ■against bis intention.” 13 C. J., at p. 244. See Cole v. Wagner, 197 N. C., 692. We do not think tbe court below erred in sustaining tbe plaintiff’s motion for judgment as in ease of nonsuit on tbe counterclaim. Tbe controversy arose over tbe accidental destruction of tbe original building by fire. When buildings are destroyed, with party walls, ordinarily this puts an end to any easement. The parties by operation of law are put in status ante. *214 In 20 R. C. L., sec. 9, at p. 1088, it is said: “Where a wall is erected half upon each side of the line dividing two properties, and used as a party wall, the easement of support existing in favor of the respective owners in the half of the wall on the other’s land ceases at the moment of their accidental destruction, because of the termination of the necessity which gave rise to the easement. If houses having a party wall are accidentally destroyed by fire, leaving the wall standing, the easement in the wall ceases and either owner may dispose as he pleases of the part on his ground.” In 30 Cyc., p. 779, we find: “The easement of support by means of the common party wall, which belongs to adjoining buildings, ceases with the state of things which created it, when the wall is accidentally destroyed, or is so much decayed as to require rebuilding from the foundation.” In the case of Heartt v. Kruger, 9 L. R. A., p. 135 (2d headnote) it is held: “The accidental destruction of a party wall, as to the maintenance of which there has been no grant of a perpetual right, will destroy all right in either party to claim an easement in the property of the other for the further support of a party wall notwithstanding some portion of the foundation of the old wall remains standing.” We think the facts in reference to the counterclaim come within the above principles of law. Looking through the entire evidence and the law of this and other jurisdictions, we see in the judgment No error.