Badger State Investment Co. v. Miller

Rosenberry, J. The party-wall agreement recites the ownership of the respective premises, describes in general terms the character of the party wall to be constructed, and contains the following covenants: “Said first party further covenants to construct said party wall of good merchantable material and of sufficient firmness and stability to properly support the walls and timbers of the building of said second party when she [plaintiff’s predecessor in title] shall erect the same. [585] “Said party of the first part [defendant's predecessor in title"] also covenants and contracts that when second party shall build upon that portion of her said lot which is contiguous to said first party’s lot and shall need said party wall, said party wall may be used by her for so much of the depth and height thereof as she may require for the building which she shall construct at any future time. “Said second party hereby covenants and contracts that in case of the use of said party wall by her as herein provided shall pay for the same to the said first party, which shall be such sum as at the time when she shall build will be required to construct one half of said wall for the distance in depth and height which was used by her in such construction.” There were other clauses in the contract providing for appraisement and making it an obligation upon the part of the successors in title of the respective parties thereto. The sole question to be determined is, Did the plaintiff make such use of the party wall as made it liable for the cost of one half thereof under the terms of the party-wall agreement? It is admitted that the party wall was erected in accordance with the contract and that if the plaintiff has used it within the meaning of the contract it cannot recover the deposit in question. It further appears that the plaintiff in constructing the Merrill theater was permitted to use six-inch fire brick for the south wall, which is a wall of less thickness than it would be permitted to use under the fire ordinances of the city of Milwaukee if the party wall were not there. But it also appears that it used fire brick of the same thickness on the north side of the building, there being an adjacent building, although it had no interest in the wall on the adjoining premises. No joists or timbers were inserted in the party wall by the plaintiff. We have been referred to and have examined a large number of cases relating to the use of party walls. While these are helpful they are not controlling, because each case depends upon its own peculiar facts or upon the language of [586] the contract or statute which governs. The contract here provides that when plaintiff builds upon that portion of lot 8 which is contiguous to defendant’s lot, “and shall need said party wall, said party wall may be used by her [plaintiff] for so much of the depth and height thereof as she [plaintiff] may require for the building which she [plaintiff] shall construct at any future time,” and she (plaintiff) is to pay for that part of the wall used by her in the construction of her building. The use which is to make the second party (plaintiff) liable for one half the cost of the wall is thus defined by the contract itself. It is clear that the party wall, instead of being useful to the plaintiff in the construction of its building, was a hindrance and obstruction. By reason of its structural character the party wall was incapable of being useful to- the plaintiff in the construction of its building. It did not use it. The party wall does not support plaintiff’s building or any part of it, walls or foundation. It does not appear that the plan adopted by the plaintiff for the construction of its building was a mere device to escape liability under the party-wall agreement. On the contrary, it appears that in order to construct its building it was required at an extra expense to remove parts of the party wall before it could proceed with its building. While there may be contact points between the buildings of the plaintiff and the defendant, and while the flashing described in the findings of the court rests partly upon the building of the-plaintiff and the party wall, this was not such a use of the party wall as was contemplated by the parties to the contract, and therefore the plaintiff is not liable by reason of such use. The plaintiff has not used the party wall for the building which it has constructed, within the meaning of the contract. ' The judgment of the circuit court is therefore right. By the Court. — Judgment affirmed.