Dowling v. Hennings

Cochran, J., delivered the opinion of this Court: This suit was brought by the appellee; to recover damages caused by the appellant’s removal of a partition wall between the house occupied by the appellee as tenant, and one owned bjr the appellant Dowling. The record contains evidence showing that the houses in question were built on adjoining lots in 1802, with a three feet alley for mutual use, running between them from front to rear; that the walls' of the alley, closing in an arch at the top, were built one on each lot, and by lintels placed upon them supported the partition wall between, and into which the houses above the alley were built; that Dowling, with the other appellants, after notice to the appellee that he designed to improve his lot by erecting a warehouse that would require a part of the arch over the alley to be taken down, removed the house and alley wall that stood upon it, by which they deprived the partition wall of a necessary support and caused it to fall. It was also shown that alterations had been made some years before in the house of the appellee, and that he inserted props therein after Dowling’s house had been taken down but before the alley wall was broken, to prevent the partition wall from falling; but it does not appear that the latter wall was weakened by either the alteration or props, or that the appellee consented to the breaking of the arch or removal of the alley wall. The instruction given upon the finding of these facts, to which the exception was taken, was, that the appellee had a right to the use of the alley and to the alley wall which stood on Dowling’s lot, as a support for the partition wall, and that he was entitled to recover the damages [183] sustained, unless it should bo further found, that the damages were caused in whole or in part by the alterations or props made and placed in the house occupied by him. The chief objection presented by the appellants to this instruction was, that In conceding the right of the appellee to the use of that portion of the alley and alloy wall which were on Dowling’s lot, it denied to the latter the right to remove them and Improve his lot to the line of the lot adjoining, although due care might bo observed in removing the wall and making the improvement. In determining the force of this objection, it is necessary to ascertain whether the appellee had acquired such a right to the use of the partition and alley walls, as imposed any limitation on Dowling’s right to demolish and remove so much of them as stood on his ground. It appears that the houses were built at the same time, with the partition and alloy walls in question, more than fifty years ago, and that the latter walls were necessary to support the partition wall built above but on a line midway between them. It was also shown that the partition was constructed for the mutual support of the two houses, and that the alley was for their common use and benefit. This manner of constructing the houses, clearly implies an agreement or contract between the builders, that each should have a right of support or easement in the ground of the other, so far as necessary to maintain the alley for mutual use, and the • partition wall for the common support of the two houses. As a matter of mere fact, no other inference -would seem possible, although the right claimed by the appellee could not he sustained by the simple implication of such an agreement. The right of support or easement in the ground of the appellant Dowling, set up by the appellee, is of such a character that it must have originated in a grant either actual ■ or presumed as matter of law from the facts shown by the evidence in the case. Wyatt vs. Harrison, 23 Eng. C. L. Rep., 205; Partridge vs. Scott, 3 M. &. W., 220, 24 Eng. C. L. Rep., 406, But the proof [184] that the mutual use had continued for a period of more than fifty years, presents the question whether grants for such use are to be presumed. It was argued with much force, that the presumption of a grant could arise only in cases where the user by one is adverse to the interest of the other, and as the user in this case, from its mutuality, interferred with no interest or right, assertable by way of protection against such use, that it was not adverse, and, consequently, could not work the loss of any right. Generally, this enunciation of the principle, upon which presumptions arise from adverse possession or use, may bo correct. But we conceive the proposition to be erroneous in assuming that the user in this case was not adverso, because it was common and based on a mutual interest. That the walls and alley in question, were constructed for mutual accommodation, and that they were intended to afford mutual convenience and benefit, is true, but it is none the less true, that the mutual use was adverse to such separate rights as were inconsistent with that use, and especial ly to that of removal claimed by the appellants. íáo far a's this question is concerned, we can see no reason for distinguishing between interest and right, and if the right to remove as now asserted, ever had an existence, it must have been from the time the houses were built, and consequently opposed by the subsequent mutual user. From our examination of the authorities bearing upon the question under consideration, we have concluded that the uninterruped enjoyment and use of the alley and alley walls for the period shown by the evidence, raises the presumption of mutual grants for such enjoyment for the time the two houses should be capable of safe and beneficial occupation, and that the appellants had no authority or right to interfere witli the alley or walls, without the consent of the appellee, unless he could do so without injury to his possession. Brown vs. Windsor, 1 Cromp. & Jer., 20. Bradbee vs. Christ’s Hospital, 43 Eng. C. L. Rep., 868. Partridge vs. Gilbert, 15 N. Y., 601. Eno vs. [185] Del Vecchio, 6 Duer, 17. It was conceded on the part of the appellee that the grant presumed would ho qualified, and only for such time as the houses could he safely and profitably occupied, and that it would bo terminated by their becoming decayed and ruinous, or by their accidental destruction; but there was no pretence on the other side, that either of the houses had became unsafe, or gone to decay, or that any condition, which would qualify or terminate the grant, had occurred. Wo are of opinion that the appellee was entitled to the use of the alley and- walls in question, and that there was no error in so directing the jury- Objection was also made to the instruction, because the finding of the appellee's consent to the removal of the alley walls and arch was taken from the jury. As we have before stated, no evidence appears from which that consent could be found. Neither the proposal nor effort of the appellee to support the partition wall by props inserted On his own premises, upon the notice from Dowling that he intended to remove the alley wall and portion of the arch standing- on Ms ground, shows, either directly or inferentially, that the appellee consented to the removal. It is difficult to perceive upon what ground the expression of the purpose, or the attempt to guard against the effect of an impending mischief, could be considered evidence of a consent that the mischief should be clone. The qualification of the instruction, relating to the alterations and props, which was objected to on the ground that it prescribed no rule for an apportionment of the damages, was, “that if the damage which the plaintiff sustained, was caused in the whole or in pari by the alterations and props, or any of them, then the plaintiff is not entitled to recover for' the damage, (if any,) which the jury may find toas caused thereby.” As we construe it this clause does not sustain the objection urged. Taken in connection with the affirmative part of the instruction, it was evidently intended to be a denial of the [186] appellee’s right to recover, if the jury should find that the alterations, or props, cither contributed to or caused the damage complained of. That it might have been stated with less ambiguity we do not doubt, but still, in construing it so as to give the result obviously designed by the whole instruction, we think it was in effect, not only a denial of tbe right to recover the damage specifically attributable to the alterations or props, but of the right to recover any of tbe damage sustained if it was caused by them either in whole or in part. In taking this view of the instruction, it follows that no caso was presented in which an apportionment of damages was necessary to ascertain the amount recoverable by the appellee. We think there was no material error in the direction given to the jury, and therefore affirm the judgment. (Decided Oct. 23rd, 1863.) Judgment affirmed.