Field v. Leiter

Bailey, P. J. It appears, both from the pleadings and the proofs in this case, that the main controversy between the parties arises upon the proper construction to be given to the provisions of the contract of April 28, 188k In the absence of any right or license voluntarily granted to him by the complainant, it is manifest that the defendant would be Avholly without authority to extend any portion of his building, either of- the foundation or superstructure beyond the line of his own lot. As no such right or license is claimed except as given by said contract, we must look to the contract alone for his authority to extend any portion of the substructure or foundation of his building on to the complainant’s premises. Ho question is made as to the defendant’s right to extend the foundations of that portion of his wall running from the rear of the complainant’s building to the south line of his lot, on to the complainant’s lot, so far as may be reasonably necessary for the erection of the party wall contemplated by the contract, as such right seems to be expressly given by the terms of the contract. But is any right given to excavate beneath the complainant’s building, and strengthen the wall already existing, by making additions to the foundations, and supports of the wall on the west as well as upon the east side ? Such right, if it exists, is given by that part of the contract which, after a preamble reciting, among other things, that the defendant was about to erect on the east half of said lot three, a brick and - stone building of about ten stories in height, and was desirous of using a part of the wall of the complainant’s building in the construction of the defendant’s said building, proceeds as follows: “ How, therefore, in consideration of the premises, it is hereby covenanted and agreed between said parties, that the said party of the second part (the defendant), in constructing his said building upon the east half of said lot three, may use for that purpose as a party Avail (Avith the right to add to the height thereof), so much of the east wall of said Letter’s building as he may desire, said party of the second part hereby agreeing to strengthen said wall and the foundations thereof, by making such additions thereto upon the east side thereof as may be required, to prevent any and all injury or damage to said Letter’s building, by reason of the use of said Avail by said Field.” Here the defendant, in consideration of the privilege granted by the contract of using the wall of the complainant’s building as a part of the' wall of his proposed higher and more massive building, covenants to strengthen the wall and its foundations, so far as may be necessary to secure the complainant’s building from injury, by additions to be placed on the east side of the wall. How the right to invade the complainant’s premises and make additions to the wall or its foundations on the west side can be derived from such covenant we are at a loss to comprehend. It is the defendant’s own covenant, and by it he agrees to adequately strengthen the wall and foundations by structures on his own land. His right to use the wall at all is conditioned upon his ability to give it the requisite strength in this manner and in this manner only. The language of the instrument seems altogether too plain to admit of controversy. To reach a different result certain modes of interpretation are attempted, which seem to us to be forced and inadmissible. They are based upon the alleged impossibility of adequately and properly strengthening the foundations of the wall without making additions on both sides. Without following out the argument attempted in its ” details, it seems to us that the plain and unambiguous- language of the contract is inexorably against it. If the defendant has covenanted to do what is impossible, he can abandon the whole undertaking but he can not, by reason of such impossibility, substitute another and different undertaking. The doctrine of cyjp?’es, sometimes applied to devises for charitable uses, or other doctrine of like character, has no place in the law relating to the interpretation of contracts. The record, so far as we can see, fails to show any such acquiescence on the part of the complainant, either by himself or his agent, in the structures on his land commenced by the defendant, as should now estop him from seeking the relief sought by the bill. The decree seems to be the only one warranted by the pleadings and evidence, and the decree will therefore be affirmed. ' Decree affirmed.