Andrae v. Haseltine

Lyon, J. It seems to be the settled law that the owners of a party wall standing in part upon the lot of each are not tenants in common of the wall, but that each owns in sev-eralty so much thereof as stands upon his lot, subject to the easement of the other owner for its support, and the equal use thereof as an exterior wall of his building. Such being the tenure by which the wall is held and owned, it seems logically to follow that either owner may, at least upon his own land, do anything with the wall, or [398] make any use of it, which does not interfere with or impair the enjoyment of such easement by the other owner. In Eno v. Del Vecchio, 4 Duer, 53, it was held that the owner on one side.of a party wall might, within the limits of his own lot, increase the thickness, length, or height of the wall, if he could do so without injury to the building on the adjoining lot. Brooks v. Curtis, 50 N. Y., 639, goes even further. It is there held, subject to the same limitation that no injury be done to the adjoining building, that one owner may build the whole wall to a greater height. The present case, however, is not like Brooks v. Curtis, because the defendants confined their wall to Chufeós lot, and built no part of it on the lot of plaintiff. In that respect it is like Eno v. Del Vecchio, supra. The doctrine of that case seems to be abundantly supported by adjudged cases, many of which are cited in the briefs of the respective counsel. These citations will be preserved in the report of the case. Such being the rule of law, it necessarily results that if the plaintiff’s building is not injured by the increased height of the wall, as the same has been constructed, he is not entitled to relief. The court found substantially that his building was not thereby injured or endangered. To this finding no exception was taken, and it is abundantly supported by the evidence. This is conclusive against the plaintiff’s right to the relief demanded. The judgment of the circuit court must, therefore, be affirmed. « By the Court.— Judgment affirmed.