McMinn v. Karter , 116 Ala. 390 ( 1896 )

McCLELLAN, J.

The wall involved in this case having been erected on the line between the lots of McMinn and Parker, with one-half of it resting upon the ' land of each, and at the joint expense of the coterminous proprietors, was as much the property of Parker as of McMinn, and is now- as much the property of respondent, who has succeeded to Parker’s rights and title, as it is of the complainant, McMinn. Its sole value to Parker and to liis successors in estate lay in his and their right to join any building he or they might thereafter 'erect on the adjacent lot on to it and to use it as the wall of such building on that side, as McMinn has used it as the wall on that side of the building erected by him. The owners of the vacant lot had, in other words, not only the privilege or easement of joining on to the wall, but they were in fact owners of the wall in common with McMinn, and as such had the right to use the wall to its middle line in any manner they pleased.so long as the wall was not thereby injured or weakened in respect of its uses as a part of McMinn’s building. Their respective rights standing thus upon the law without anj^ agreement, are but accentuated and emphasized by the writing entered into by McMinn and Parker, reciting the building of the wall as a party wall at joint cost, on the line between, and extending each way onto,the land of each of the coterminous proprietors,'and stipulating .“that the said wall shall be kept in repair by the said parties equally, that each of said parties have a right to use the same and join thereto, that nothing shall be done by either party to weaken or in any manner impair the strength of said wall as a party wall, and that said wall shall be and remain a solid wall.” Under the law, apart from the contract, and under the contract itself, Parker had the right not only to use the face or side of the wall next his lot, but also to such further use of it as was necessary to form a complete and perfect junction in an ordinarily good mechanical manner bewteen it and any building he desired to erect on his lot, and an injury to or weakening of' the wall merely incident to the joining thereto of such building in the customaiy and proper manner would not be within the inhibition of the contract nor violative of legal duty. We do not know judicially that the letting in of sleepers, joists and rafters in the way proposed by the respondent' would at all injure or weaken this wall; the cuttings to be only four inches into an eighteen inch wall. There would be more ground for an imputation of common knowledge that the method of joining to and using the party wall sought to be enjoined is that of customary and usual adoption in the building trade ; and it would be interesting to know if the complainant has not adopted this method in securing proper support for the sleepers and joists of his own building. Certainly such cuttings would not impign upon the stipulation of the writing that the wall shall “be and remain a solid wall.” But pretermitting a resort to common knowledge in this connection, the showing made befóle the'chancellor upon the bill, answer and affidavits justifies the conclusion not only that the method proposed of joining onto the party wall is the usual and customary method resorted- to and adopted in such cases-, and necessary and proper, but that the wall as a party wall will not be injured or weakened thereby.

In arriving at the conclusion just announced we have considered the affidavits found in the record without passing upon the question whether this is a proper case for such evidence. This we have done because both parties filed affidavits below; all the affidavits were considered by the chancellor. The objection by appellee to appellant’s affidavits are not and could not be presented for consideration on this appeal, and appellant’s objections to appellee’s affidavits are not insisted upon by counsel here.

The court is, however, of the opinion that the chancellor erred in allowing the amendment of the verification of respondent’s answer after the submission of the cause against complainant’s objection ; and for this the decree dissolving the injunction must be reversed. The cause is remanded.— Wilkinson v. Buster, 115 Ala. 578.

Reversed and remanded.