Cornell v. Bickley

Rothrock, J. It appears from the evidence that the plaintiff is the owner of a subdivision of a lot in the city of Waterloo. The defendants are the owners of another subdivision of said lot adjoining that part owned by the plaintiff. The plaintiff erected a building on his part of the lot some nineteen years since. The building is two stories high, with a stairway on the outside extending from the rear of the building upward to the second story. The whole of the building, including the stairway, is on the land of the plaintiff. The defendant’s part of thé lot adjoins that of the plaintiff [220] on the side where the stairway is located. In the year 1889,* the defendants excavated a cellar on their lot up to and over the line between the land of the parties, and proposed to carry the wall up two stories as a party wall, partly on the land of the plaintiff, which, if completed, would have ' destroyed the stairway, and prevented the plaintiff from ingress and egress to his building by any stairway at the side of the building. The proposed wall would also have required the cutting away of part of an outbuilding in the rear of the plaintiff’s two-story structure. This action was brought to enjoin the defendants from using any part of the plaintiff’s land on which to erect the wall, and to protect his stairway from being destroyed and his outbuilding from being injured. It is claimed by the defendants that they have the right to erect a party wall between the lots, using the line between the land as the center line of the wall. I. The right to erect party walls is found in section 2019 of the Code, and is as follows: “In cities, towns and other places surveyed into building lots, the plats whereof are recorded, he who is about to build contiguous to the land of his neighbor may, if there be no wall on the line between them, build a brick or stone wall at least as high as the first story, if the whole thickness of such wall above, the cellar wall does not exceed eighteen inches, exclusive of the plastering, and rest the one-half of the same on his neighbor’s land; but the latter shall not be compelled to contribute to the expense of said wall.” It is urged in argument that the only limitation of the right to build a party wall is that “there be no wall on the line between them.” In our opinion, this is rather too restricted a construction of the statute. If we should adopt that literal construction, then a party would have the right to interfere with the wall of his neighbor if it were an inch or more from the line, so that it was in the way of such a [221] party wall as lie desires to build. The statute must receive a reasonable construction. It evidently was intended to apply to the party who desires to erect a building on a lot adjoining a lot which is vacant, so that when a building shall be erected on the vacant lot the wall may be used in common; and it is not reasonable to hold that the word “wall77 on the line shall be construed to mean a solid brick, stone or wooden wall. The word “wall77 has reference to the part of the building on the line, and includes any permanent-part of the structure or building. II. It is further claimed that the defendants acquired the right to build a party wall by an agreement in parol with the plaintiff. It is true that an agreement was made that the defendants might erect the cellar wall of their building so that the center line of the wall would be on the line between the land of the parties. The conflict in the evidence arises upon the question whether the agreement contemplated that the wall of the building above ground should be carried up so as to destroy the plaintiff’s stairway. As we read the evidence, this arrangement was at no time assented to by the plaintiff. The minds of the parties did not meet on the proposition that the plaintiff’s stairway should be destroyed by a wall erected by the defendants. He made timely objection thereto, and we think he shows good grounds for his objection, in that he did not agree to it at any time. "We need not set out the evidence on this question. This disposition of the,case renders it unnecessary to determine the questions as to whether the statute providing for party walls applies to parts of lots not separately surveyed and platted, and also whether a parol contract in regard to party walls can be enforced. The decree of the district court will be afeirmed.