Commercial Nat'l Bank of Ogden v. Eccles

MeOABTY, O. J. (after stating tbe facts as above). One of tbe grounds upon which appellants ask for a reversal of tbe judgment is that tbe findings of facts are not supported by tbe greater weight of tbe evidence. We do not deem it necessary to a clear understanding of tbe questions presented for us to either review tbe evidence in detail or set forth tbe substance thereof. We think it is sufficient to here state that we have carefully examined tbe record; and, while we find that there is a conflict in tbe testimony of some of the [97] witnesses on certain issues, we are of tbe opinion tbat the findings of fact are supported by a clear preponderance of the evidence. The wall in question is entirely upon the land of appellant Eccles, and, as found by the court, respondent has “no interest in the lands upon which said wall stands.” There is much evidence, however, which tends to show that respondent purchased an interest in and became part owner of the wall up to the third story thereof. But since the court found that respondent acquired an easement only in the wall, and as respondent has not appealed or filed a cross-assignment of errors, we shall, for the purposes of this appeal, assume that respondent acquired no greater property right in the wall than an easement. The important question, therefore, is; Did respondent’s right to an easement-in the wall terminate when the wall was rendered useless to appellant Eccles by the destruction of his building of which the wall formed a part? The position of appellants on this question is clearly stated by their counsel in their printed brief as follows: The purposes of the wall were “to support mutually two buildings, one of five stories and the other (respondent’s building) of two stories. The rights of the adjoining owners therein were mutual, a cross-easement, each with the right to have its building supported. When from calamity or accident such wall became useless for either of these mutual purposes, the condition or relation ceases. The purposes were gone.” And again they say: "The destruction of a party wall for the purpose for which it was used during the easement attaching thereto ends the easement and all rights thereum der.” Despondent acquired by purchase from appellant an easement in the wall up to the third story thereof, and has used the same as the north wall of its building. The joists of respondent’s building are fastened to and rest on the wall. [98] 1,2 [97] The authorities practically all agree that, where a party has acquired an easement of support in a party wall, the accidental destruction of the wall terminates the ease [98] ment and extinguishes all rights arising thereunder. Therefore, if the wall in question had been rendered useless or unsafe as a support to respondent’s building, or if it had been entirely destroyed by the fire, it might be argued with much force that such impairment or destruction terminated the easement. But this case does not fall within this well recognized rule. Under existing conditions respondent’s easement — property right — in the wall is just as valuable and available as a support to its building as it was before the destruction of appellant Eccles’ building. The question therefore arises: Mary Eccles, because of the destruction by fire of his building which so weakened the wall that it cannot be retained and used as a support for 'the kind of building he contemplates erecting on the site of the one destroyed, deprive respondent of - its property, easement, in the wall which furnishes the same support to its building as it did before the fire occurred ? To permit Mr. Eccles to tear down the wall and remove this support from respondent’s building without requiring him, at his own expense, to erect another wall in its place, and thereby provide the same support for respondent’s building as the present wall furnishes, would in effect be a confiscation of respondent’s property. It does not follow because the wall is unsafe as a sup.port for the kind of building appellant Eccles intends to erect that he has the right to terminate respondent’s easement of support therein for its building, and proceed to take down and remove the wall to the irreparable damage of respondent. That Eccles has the right to remove the wall and erect another in its stead suitable for the building he contemplates erecting no one will deny, but in doing so he is bound to use ordinary care to avoid injury to respondent’s building and to rebuild' without unnecessary delay. (Putzel v. Drovers’ etc., Bank, 78 Md. 349, 28 Atl. 276, 22 L. R. A. 632, 44 Am. St. Rep. 298; Lexington Lodge v. Beal, 94 Miss. 521, 49 South. 833.) In the case last cited the principle of law applicable to the case at bar is well illustrated -in the following language: [99] “Where one of the buildings supported by a party wall has been destroyed, and the wall itself has been so weakened as to be dan-derous or insufficient as a support for the building which the owner of the destroyed building is about to erect, he has the right to tear down the insufficient or dangerous party wall and replace it with one stronger and better, provided he gives to the adjoining house the same right of support as it had in the old one. He is but exercising his legitimate rights of property. If it follow from this that the owner of the adjoining building will be put to inconvenience while the work of demolition and construction is going on, this is an unavoidable consequence . attendant upon the adoption and use of party walls. It cannot be the law that the fortunate adjoining owner, whose building is not destroyed, and who may be content with the wall, although weakened dr partially destroyed, can, by refusing to the co-owner, whose building has been destroyed, permission to tear down and rebuild the wall, compel him either not to build again or to build only such a structure as the wall remaining may suffice to support. * * * While the adjoining owner, whose building has been destroyed, and who wishes to tear down and rebuild an insufficient or dangerous party wall, will be accorded this right, it must be exercised so as to work no avoidable injury to the owner of the adjoining building. He will be liable if the work is done negligently and damage to the co-owner results therefrom.” See, also, 30 Cye. 181, 182. The judgment is affirmed, with costs to respondent.