Lyons v. Rossmeissl

Siebecker, J. The defendants contend that the trial court erred in restraining them from removing a part of the party wall in the third story of the plaintiff’s building. The court held in effect that defendants relinquished their rights to the common use of a part of the three-foot strip by the party-wall agreement and the erection by plaintiff of her building pursuant thereto. It is without dispute that at the time this party-wall contract was made the parties had an undivided interest in the common use of the three-foot strip. The contract recognizes it. It appears that plaintiff at the time the contract was made proposed erecting a three-story building on her lot. In executing this purpose she desired to use and occupy, to the extent of her interest, the three-foot strip in connection therewith. The parties undertook to arrange for such use by the party-wall agreement. Under these circumstances the effect of the contract and the construction of the party wall and building by the plaintiff constitute the basis upon which the rights of the parties in this three-foot strip are to be determined. The plaintiff contends that the provisions of this agreement fix and establish the beneficial use of this strip during the life of her three-story building and the one which the defendants contemplated building when the contract was made. The contract grants to the plaintiff the right to erect the party wall on the designated dividing line between said properties and partly on the premises of the defendants; that it was to be constructed according to the plans, drawings, and specifications there exhibited to the parties; that two iron columns were to be placed on the abutments between front and rear stairway, as located in the architect’s plans, for the support of the I-beams above, “and on the third story there shall be a row of I-beams and columns for the support of the roof and third-story ceiling— these columns and I-beams to be built in with masonry so as to form the outside west wall.” Another provision is: '“said [204] foundations, abutments, walls, etc., shall be of sufficient strength to be used for and constitute the west wall of first party’s brick building she is to erect and also the east wall of any brick building of a like number of stories or less which second parties or their heirs and assigns may hereafter build upon their lot.” These provisions clearly indicate that the parties intended this wall as the division line of the buildings on their respective lots and necessarily granted to plaintiff the right to inclose the parts of the area, occupied'by her building, of the three-foot strip, subject to such right of its use in common as the contract specified. The acts of the parties pursuant to this agreement show that it was understood that their common uses of the strip were fixed and established in connection with their contemplated buildings. They so carried out the contract, and pursuant thereto have occupied the strip on the first and second story of plaintiffs building without controversy. The finding of the trial court that the building was erected pursuant to the plans approved in the contract cannot be disturbed under the facts and circumstances of the case. It must also be considered that the west wall of plaintiffs building is the partition wall between, the plaintiff’s and defendants’ buildings as agreed upon in the contract. The main contention of the defendants rests upon the claim that its right to one half or to the whole of the three-foot strip on the third floor of plaintiffs building is appurtenant to their interest in the fee of such strip, and that they have not relinquished any of their original interest in or right to any beneficial use of the strip. This claim conflicts with the rights granted the, plaintiff by the party-wall agreement, which authorized the plaintiff to inclose the portions of this strip lying on the east of the wall, as shown by the architect’s plan of her proposed building. The execution of this plan under the q>arty-wall agreement operated to establish the plaintiff’s and defendants’ rights respectively to the beneficial use of their common interest in this strip. We find no basis for defendants’ claim that no such results were [205] contemplated and intended by tbe parties when they entered into this contract. Applying the context of the parts of the contract stated above to the subject matter, there is evinced a purpose and intent by the parties to apportion their rights and beneficial uses in this strip, and that such apportionment thereof was in fact established by erecting the party wall as agreed and in using the area of such strip as divided by the party wall. In legal effect these acts constitute a mutual relinquishment thereof to such parts as were not to be used in common under the arrangements embodied in the contract and in the plans and specifications of plaintiff’s building, as approved thereby. The result of these transactions is that plaintiff and defendants occupied a part of this strip in common with stair- and passage-ways, and the parts not so occupied by common stair- and passage-ways were apportioned between the parties in accordance with the location of the party wall and the approved plans of plaintiff’s building. The evidence sustains the conclusion that the parties gave this party-wall contract a practical construction in harmony with this interpretation of it. Upon these considerations it must follow as a legal conclusion that the contract defined the rights of the parties as to the three-foot strip and fixed the extent of their beneficial use thereof during the existence of plaintiff’s proposed building and the contemplated building of the defendants in connection with the proposed party wall. The execution of the agreement, as shown by the evidence, conferred upon the plaintiff the right to use the areas on the respective floors inclosed by the party wall on her side thereof, except the portions which were assigned and occupied by them in common for purposes of stair- and passage-ways and the part defendants occupy on the second floor as toilets, off from the common passageway. Wallis v. First Nat. Bank, 155 Wis. 306, 143 N. W. 670. The defendants therefore had no right to take down the partition wall on the third floor for the purpose of entering the area of the three-foot, strip allotted to plaintiff under the contract. The judgment. [206] of the trial court properly restrained defendants from making tbe threatened entry into plaintiff’s building on tbe third floor through the party wall. By the Gourt. — -The judgment appealed from is affirmed.