Mayer's Appeal

The opinion of the court was delivered, February 13th 1873, by Read, C. J. Robert F. Simpson owns a lot of ground at the north-west corner of Arch and Ninth streets, extending in front on Arch street forty-eight feet, and in length or depth on Ninth street one hundred and twenty-six feet, and John Mayer owns a lot adjoining it on the north, eighteen feet on Ninth street by forty-eight feet in depth. The defendant erected in 1870 a building, [168] intended for a museum and theatre, covering the whole of his lot, the north wall of which was an eighteen-inch brick party-wall, which by law should be six and a half inches on the plaintiff’s lot. Mr. Shedaker gave to the defendant, or his agent, the true line between the two properties, in his capacity as Surveyor and Regulator of the Third District, and the stone foundation of the party-wall was correctly laid. The brick wall was carried up, beginning at stone foundation, as would appear by Mr. Shedaker’s measurement of the 30th and 31st of August, 1870, three-eighths of an inch over on the plaintiff’s lot beyond the limit allowed by law. In extending the wall back on the stone cellar wall, in different parts it overlapped three-quarters of an inch and seven-eighths of an inch, and in the middle of building the wall overhung the lot No. 110 top of first story 2f- inches, at top of second story 3J inches, and four feet above the floor on the third floor 4J inches. A subsequent measurement by John E. Wolf, Surveyor and Regulator of the Fifth District, was more unfavorable to the defendant. Jacob Rush entered into a contract with the plaintiff to erect on his lot, No. 110, a three-story building with a mansard roof, eighteen feet front by forty-six feet deep. It was for a certain price; Rush contracting to pay for all party-walls. Defendant’s cellar wall was up before the contract was signed, and the excavation for the building on No. 110 was commenced on the 23d of June 1870. Defendant’s wall was carried up ahead of the plaintiff, and Mr. Rush saw the wall was coming over, and notified Mr. John Bingham, who had charge of the work at the time, that the wall was coming over, and that he had better shore it. He did so, but put the shore in the wrong place. Mr. Rush put in the joists in the party-wall, and paid for the party-wall, according to his contract. The plaintiff having heard of its overhanging, employed Mr. Shedaker to make the measurement already stated, and immediately took measures to have this error corrected, which ended in filing this bill in equity on September 22d 1870. The wall is up and both buildings are under roof. The usual five days’ injunction was issued and dissolved on the 29th of September. The case was then heard on bill, answer and proofs, and the bill dismissed with costs. From this decree this appeal is taken. The occupation unlawfully of a portion of the plaintiff’s lot does not convey any title to it to the defendant; nor does it affect the plaintiff’s title or his right to recover damages for the trespass, but as an injunction is a matter of discretion with a court of equity, we do not feel bound-to grant a mandatory injunction to tear down this wall, which is the practical meaning of the second prayer of the bill. This case shows the necessity of great care and attention on the part of owners and contractors in the erection of party-walls from the time they are commenced until they are finished. The [169] party erecting, as in this case, will take care it is plumb as it is smooth on his side, and it is his interest to get the full use of his lot, but as was the fact here, more careless as to the encroachment on his neighbor’s property. The Building Inspectors should be particularly careful in inspecting party-walls, for their powers are large in correcting all errors in such walls not built in accordance with law. A full history and discussion of this subject is to be found in Vollmer’s Appeal, 11 P. F. Smith 118. We affirm the degree of the court below with a modification. This bill is dismissed with costs without predjudice.