Lavergne v. Lacoste , 26 La. Ann. 507 ( 1874 )

Wyly, J.

This case is correctly stated by the learned judge a quo, and is as follows:

In 1841 one Blasco, being the owner of the lot now possessed by the plaintiffs, built a certain wall, half on his own lot and half on that of his neighbor. This was built at the exclusive cost oí Blasco, his neighbor Leroy refusing to contribute towards its erection. In this wall Blasco left three openings for purposes of ventilation. The plaintiffs derived title to the lot now owned by them from Blasco in 1859. In the same year, and subsequent to the purchase from Blasco, the plaintiffs acquired title to the contiguous lot owned by Leroy at the time the wall was built; and in 1866 they sold the Leroy lot to the defendant, Mrs. Emma Lacoste.

To understand plaintiffs’ claim, it is proper to say that the wall which constitutes the boundary between themselves and the defendant is to a certain extent, to wit: forty-eight feet in length, one-half on their ground and the other half on the lot of the defendant; the remainder of the wall, measuring seventy-eight feet and six inches, rests exclusively on the lot of the plaintiffs. At one point this last mentioned part of /the wall does not reach the dividing line.' It is described thus in the petition : A “triangular strip of ground, measuring at its base one inch and four lines, and narrowing as its altitude extends to its apex on the rear line of said lot, a distance of seventy-eight feet six inches.” This space outside of the wall is almost imperceptible, and it grows less until it reaches the line at the other end, seventy-eight feet six inches distant.

Por convenience we will designate that part of the wall resting equally on the contiguous lots, a distance of forty-eight feet, as wall A, and that part resting entirely on plaintiffs’ lot, seventy-eight feet, as wall B.

The defendant sought to make these walls walls in common, and the plaintiffs brought this suit to compel him to pay half the value thereof, and to restrain him irom closing the three openings in the wall A, as aforesaid.

The defendant tendered the value of wall B and of the small fraction of ground extending outside of said wall, as aforesaid. And concerning the sufficiency of this sum there is no controversy. We think the defendant liad the right to make this wall a wall in common, and that he should pay the plaintiffs the amount he tendered, which is, at least, the value thereof.

As to wall A, we will remark that Leroy, the owner, who refused to contribute to the building thereof, had the right, under article 672 C. C., to make it a wall in common by paying half of what was laid out for its construction; and he had the right to close the three openiugs therein. The moment he paid the half of the cost of the wall, his right to it became as complete as if he had helped to construct it; and, of course, if he had helped to construct it, the plaintiffs would have had no right to the openings. Plaintiffs and their vendor had the right to the openings as long as the wall belonged entirely to them; it was a right resulting from the ownership of the wall. But this ownership, to the extent of one-half of the wall, was liable to be divested by the owner oi the contiguous lot making it a wall in commou, pursuant to article 672 C. C. The moment the provisions of this article were complied with, the builder ot the wall or his vendees ceased to be the sole owners, and with it they ceased to have a right to the openings therein.

The defendant has all the rights of the original owner, who refused to contribute to the building of the wall. Besides, she is not liable to the plaintiffs for the cost of this wall. Plaintiffs, the owners of both lots, sold the defendant the one she occupies, and with the lot passed all the improvements thereon, including half of the wall in question, because half thereof rested on the lot, and it was a part of the immovable. If plaintiffs had desired to preserve their right to the openings, they should have made the reservation thereof when they made the sale to the defendant. If they wished to prevent the defendant from using half of the wall, which she bought with the lot, they should have made a limitation to that effect, in respect to these openings, in the act oi sale. In the absence of an express limitation, we are bound to recognize the right of the owner to the use and employment of his property. ^

It is therefore ordered that the judgment appealed from be reduced to $450, the value of wall B, which was tendered to the plaintiffs by the defendant, and as thus amended it is ordered that said judgment be affirmed, plaintiffs paying costs of both courts.