Barry v. Edlavitch

Page, J., delivered the opinion of the Court. Simon Edlavitch, the appellee, brought this action against John M. Barry, the appellant, to recover certain damages alleged to have been committed to the property of the former by the latter. The narr. alleges, that the defendant broke and entered the plaintiff’s premises, and “ tore down a portion of the front wall,” and “ a large portion of the southernmost wall of said improvement,” and other wrongs, etc. It appears that the parties are respectively the owners of adjacent houses on Centre Market Space, in Baltimore City. The entire wall, between the lots, has been used for the support of both houses, for fifty years. From Ceritre Market Space, eastwardly for thirty-six feet, it is built, one-half on each lot; but the remainder being nine inches in thickness, and extending eastwardly fifty-four feet to an alley in the rear stood entirely on the lot of the appellant. Barry, desiring to improve his lot, obtained from the appellee an agreement, to allow him “to remove party wall, providing he replaces same in twenty-one working days, weather permitting, the said wall being 36 ft., more or less, from the front building line, and extending back to the alley.” He then tore down — 110 — this part of the wall, and in its place built a new fourteen inch wall, wholly within the metes and bounds of his own deed, and raised it some fifteen or twenty feet higher than the height of the old wall. Four feet above the plaintiff’s roof he left openings in the new wall for windows, and inserted frames therein. The plaintiff offered evidence to show that in building this portion of the wall, the defendant had moved it from four to eight inches, over towards the plaintiff’s lot, and in order to so move it the ends of the beams and joists and steps of Edlavitch’s house were cut off. This the defendant denied, and offered evidence to prove, that the new wall was not moved, but was built on the line of the old wall; the additional.width being on his own premises; also, that the old wall leaned to the south, and that the cutting of the beams and steps in the plaintiff’s house, was necessitated by reason of the new wall being made straight. That these beams were inserted at the same height in the new wall, and gave the plaintiff’s house the same support, that it had in the old. Subsequently the plaintiff built his own house one story higher; and in so doing closed in the window-openings, and sought to use the new wall for his upper story, by inserting beams in that part of it, which was above the top of the old wall as it stood originally. Both parties offered evidence, the one to show the work was not carefully and properly done, and that the old wall was sufficient for the uses to which it had been applied; the other, that every possible care was observed in tearing down the old wall, and in erecting the new; and that the old was unsafe to build on it the structure he proposed to erect. The controversies now to be considered, relate to the respective rights of the parties, to the use and enjoyment of the easternmost portion of the wall. This, as has been stated, stands entirely upon the land of the defendant, and has been used for more than twenty years for the common support of the house of the plaintiff as well as that of the defendant. The plaintiff contends that under these circum — 111 — stances it became by prescription a “party wall in the fullest meaning to be attached to such words.” The term “ party wall,” is usually applied to such walls, as are built partly on the land of another, for the common benefit of both, in supporting timbers, used in the construction of contiguous buildings. And “a division wall may become a party wall by agreement, either actual or presumed, and although such wall may have been built exclusively upon the land of one, if it has been used and enjoyed in common by the owners of both houses for a period of twenty-years, the law will presume in the absence of evidence showing that such use and enjoyment was permissive, that the wall is a party wall. In such cases the law presumes an agreement between the adjacent owners, that the wall shall be held and enjoyed as the common property of both.” Brown v. Werner, 40 Md. 20. The case just cited was an action to recover damages for injuries occasioned by the careless manner in which the adjoining house was improved, and the decision must be regarded in the light of its particular facts. The scope of the Court’s rulings was that the user therein shown, was sufficient to enable the jury to find the wall to be a party wall, and that neither party had authority to interfere with it, without the consent of the other, unless he could do so without injury to that other’s possession. But it in no wise impeaches the general doctrine, that in cases of prescription, the terms of the presumed grant are fixed and determined by the user in which it originated. Possession per se, can never afford the presumption of a grant, so as to conclude the real owner. The possession must be open, known to the other party, and adverse to some right in the owner. It is only from the fact that such possession, amounting as it does to a continuous claim of title, has been acquiesced in for twenty years, that the presumption of a grant is afforded. So that, from the very statement of the nature of title by prescription it is obvious that the presumed grant can never extend farther than the — 112 — user, in which the other party has acquiesced. These principles are so well established as to require no citation to support them. They are applicable co the acquisition of easements. Washburne on Easements, 74 Marg. (3rd ed.); Parker v. Foote, 19 Wendel, 313. And we think are fully sustained by the decisions of this Court. In Dowling v. Hennings, 20 Md. 183, the Court said, the manner of the construction of the buildings implied an agreement between the buildersj 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 ; and while no other inference would seem possible, yet, “the right claimed by the appellee could not be sustained by the simple implication of such agreement. The right of support or easement, etc., 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.” The'Court then, after having shown that the mutual use of the alley and wall was adverse to and inconsistent with the separate rights of the parties, proceeded to state that the use of the alley and walls raises the presumption of “ mutual grants for such enjoyment, for the time the two houses should be capable of safe and beneficial occupation.” So also in Putzel v. Drover's Bank, 78 Md. 360, this Court uses language entirely in accordance with the view above expressed ; they say: “ Under these circumstances the law considers that he had a prescriptive title to the. use of it (the division wall), in the manner in which he had . enjoyed it. * * To the extent of such use his title is clearly established. * * * The bank retained all its rights in the division wall which are not inconsistent with the enjoyment of the easement. It was bound to permit it to be used as a support for Putzel’s house in the accustomed manner; but this is the limit of its obligations.” The cases cited by the appellee in no wise are in conflict with these views. In Graves v. Smith, 87 Ala. 451, there — 113 — was an agreement, which in terms created a party wall, with the right to the appellant to use the same, “ in the erection of any building which he may wish to build on his own lot.” The Court held under these circumstances that the cross-easement of appellee was “violated by the attempt of the defendant to create openings for the windows.” So in Brooks v. Curtis, 50 N. Y. 642, the language of the deeds and the acts of the parties show that it was their intention that the wall, which stood one-half on each lot, should be a party wall for the common use of both lots, and that such an easement included the right to increase the height of the wall, provided it be done without detriment to the strength of the wall or to the property of the adjacent owner. And in Field v. Leiter, 118 Illinois, 23, the character and scope of the cross-easement was made to depend upon the construction of the agreement between the parties. On the other hand, in McLaughlin v. Cecconi, 141 Mass. 254, where the party claimed by adverse user, the Court held that the defendant could continue to burden the wall to the extent of her use ; “ but she cannot enlarge or add to the rights acquired by adverse occupation, except by some other title.” Matthews v. Dixey, 149 Mass. 597; Everett v. Edwards, 149 Mass. 591. Now in this case, the wall in question stands wholly on the land of Barry, and there is nothing in the case, beyond this fact, to explain the use of the wall by Edlavitch. Such use, it is not perceived could be of benefit to Barry. It was a mere burden upon his property, open, adverse and acquiesced in by him. No other inference whatever can be drawn from its existence, except that which the law implies, viz., a grant - to do the things that had been done for so long a time. There is nothing in the case from which it can be presumed that either party intended that the wall should be a party wall, except to the extent and for the purpose of supporting the appellee’s building, as it had been supported for so many years. That was, therefore, the extent of the appellee’s right, namely, to enjoy the use of the wall for — 114 — the support of his house as it then existed. The wall being the property of the appellant and on his own lot, there can be no reason assigned’ why he could not strengthen it and add to its height if he chose to do sb ; provided it was done without detriment to the other party’s right. And it follows also, necessarily, that the appellee has no rights in or to that part of the new wall which is above the height of the old, and which is not required for the support of the timbers of his house as it formerly stood ; and if this be so, there was no invasion of his rights by the placing of openings for windows in such part of the wall. Weston v. Arnold, 43 L. J. Ch. N. S. 123. The right of the appellee was to maintain the support of his house as it had been for twenty years or longer, and therefore, if in the rebuilding of the new wall his house was, without his consent, detrimentally affected by injuries occasioned either by careless construction; or by cutting his joists and steps, so that now they are no longer as they were ; or the rooms were narrowed, the appellant would be responsible although such cutting was rendered necessary by the straightening of the new wall. In a word, the appellee had a full right to maintain his easement to the extent of the ancient user; and any encroachment thereon by the appellant was an invasion of his rights. The record shows, that by the description contained in his deeds, the appellee’s lot does not include a strip of land between four and eight inches wide to the north of the wall; and if this be so, it is contended the appellee is not entitled to tack his possession to that of his predecessors, and his case must fail for want of title to that portion of the building and lot which .lies between his south line and the wall in question. But we do not think this case raises such a question. It is conceded that John Brannt, under whom the appellant claims, occupied the lot for more than twenty years, and during the whole of his possession used the wall for the support of his house in the same manner and to the — 115 — same extent as did those (including the appellee) who after-wards owned and occupied it. Such possession, therefore,, undoubtedly was sufficient to and did confer upon him a title to the easement, whatever its nature was. Now, what was the full extent of his easement ? He not only acquired a right to the use of the wall to support his house, but also to do that which was obviously necessary to the enjoyment of that right; that is, to occupy the space intervening between the wall and his own line. The easement which the adverse possession conferred upon him, included an easement to use the soil that intervened between his property and the wall. The grant of an easement carries with it all that is absolutely necessary to the enjoyment of it. i Wm. Saunders 323, note 6; Washburne on Easements 25 (star paging). He acquired no title to the soil. His right was merely an easement over it; to use it, as appendent to the principal easement of a right of support, in the wall of the adjoining proprietor, and necessary to its enjoyment. Leonard v. White, 7 Mass. 6; Nicodemus v. Nicodemus, 41 Md. 536. In Dowling v. Hennings, 20 Md. 182, the party wall was constructed on an arch supported by walls built on each lot. Dowling proposed to take down such parts of the arch as were on his own lot, and improve to the line of the adjoining lot. It was held that the parties had the use of the alley and alley’s walls, for the time the two houses should be capable of safe and beneficial occupation. It was not contended that title to the soil of the alley was affected by the adverse user, and the Court did not so decide. What it did hold, was, that each party had an easement in the walls and over the alley, so long as the two houses should be capable of beneficial occupation. Such was the nature of the easement Brannt acquired by his possession. It became consummate in his lifetime, and thereby also became appurtenant to his estate. It therefore passed by the several conveyances, to the successive owners, and is now in the appellee. Each deed in the chain of title conveys the building, rights and appurtenances — 116 — thereto belonging; and even if this were 'not so, the easement being in fact appurtenant, would.pass without the word appurtenant being used in the deed. Ritgar v. Parker, 8 Cush. 145; Barnes v. Lloyd, 112 Mass. 224; Coolidge v. Hager, 43 Vt. 9; Whetherill v. Brobst, 23 Iowa, 591. (Decided June 18th, 1896). It- only remains to apply these principles to the instructions asked for by the parties and allowed or rejected by the Court. The first and second prayer' of the plaintiff denies the right of the appellant to the exclusive use of that part of the new wall -which is above-the height of the old, and for' that reason should not have been granted. The same objection lies to the second. The converse of this proposition is stated in the appellant’s twelfth prayer, which should have-been granted. ' The appellee’s fourth and sixth prayers were not objected to at the argument—nor was the rejection of the first,- second and eleventh instructions asked for by the appellants. The appellants’ eighth, thirteenth, fourteenth, fifteenth and sixteenth prayers- we think were properly rejected. The eighth and thirteenth ignore all the rights of the appellee, and are defective for that reason. For error in granting the- plaintiff’s first and second prayers, and in-rejecting the defendant’s twelfth, the judgment must be reversed. - Judgment reversed and new trial awarded.