Schwartz v. Atlantic Building Co.

Mr. Justice Van Orsdel delivered the opinion of the Court: It is contended that, inasmuch as the wall had been constructed more than twenty years prior to plaintiff’s acquiring the property, it will be presumed, in the absence of evidence to the contrary, that an easement hy prescription was acquired with the knowledge of the then owner, plaintiff’s grantor, which would he binding upon plaintiff as his successor in interest. Plaintiff testified that ho had no knowledge of the encroachments until he dug down and found them. A concealed easement of this character upon land, in the absence of any record or other means of putting the purchaser upon notice, will not pass with a conveyance of the land. Defendant, therefore, had no easement to the extent of these encroachments which he could enforce against the plaintiff. This was a party wall, and plaintiff had the option of either using it as such hy paying defendant whatever was found to be due, or of constructing an independent wall entirely upon his own land. He elected finally to use it as a party wall, and defendant is not here complaining of its use as such. Plaintiff had two courses of action open to him when he discovered the encroachment, one of which he was required to choose. He could have compelled defendant to remove the obstructions to enable him to construct his wall, and recover damages caused hy delay in proceeding with his work: or he could adopt the wall as he found it. He elected to do the latter. The foundation with the obstructions was part of the wall, so much so that it is conceded it could not he removed without affecting the integrity of the wall, except by considerable reconstruction work being done. Let ns assume, for illustration, that the entire wall, instead of being only about 2 inches on plaintiff’s land, had been all but 2 inches on his land. Defendant bad only a right to extend one half or less of the wall onto plaintiff’s land. Plaintiff in that case could have compelled defendant to reconstruct the wall either entirely upon his own land, or one half upon his own land at the option of defendant. But if plaintiff, instead of taking this course, .should elect to use the wall [112] as a party wall, and should erect his building, he would be es-topped to compel the removal of a portion of the wall or claim damages for the trespass. Neither would it avail plaintiff to notify defendant to remove the excess wall, and at the same time be appropriating it as a party wall. When plaintiff notified defendant to remove the obstructions, he was proceeding to use the wall, and defendant had the right to rely upon plaintiff’s election. Indeed, plaintiff had another course open to him. It appears that, at the time the obstructions were discovered,. and plaintiff was informed that he would not be permitted to construct his wall upon them, they could have been removed without affecting the wall for a cost of $365. Plaintiff could have had the obstructions removed, and have used the wall as a party wall and deducted the cost of removal from the $409.72 which he owed defendant. Ignoring these conditions, he accepted the wall with its foundations for the purpose of constructing his building, and how comes into a court of equity to recover damages and compel defendant, in addition, to expend $1,500 in placing the wall in a condition where it could have been placed by plaintiff himself at an expenditure of $365. Plaintiff, in his notice, did not even tender defendant the privilege of removing the obstructions through his property, where it could have been accomplished at much less expense than from defendant’s side of the wall. Equity deals with the substance, and will not indulge in technicalities. We think plaintiff is not in position to complain of the' decree below. It appears that the obstructions can now be removed by operating from plaintiff’s property, at a cost of $700. By the decree, plaintiff was awarded $409.72 and the sum due defendant for the use of the wall, and both parties were perpetually enjoined from removing the foundation encroaching upon plaintiff’s land while the wall stands. Defendant has not appealed from the award to plaintiff, which must stand; but we think the decree should be so amended as to permit plaintiff, at his own cost, without impairment of the wall, to remove the obstructions, if he so desires. The court below is directed to so [113] amend the decree. With this amendment, the decree is affirmed, with the further order that the costs of this appeal be divided equally between the parties plaintiff and defendant. Decree modified and affirmed.