Oldstein v. Firemen's Building Ass'n , 44 La. Ann. 492 ( 1892 )

The opinion of the court was delivered by

Breaux, J.

Plaintiff is the owner of an improved lot in this city which he purchased from Mrs. Emma Reese.

The' building improvement is a two-story dwelling house constructed years ago.

Witnesses residing in the neighborhood, advanced in years, did not know when it was built. They saw it in their youth where it now is.

One-half of one of the walls was constructed on-the lot which now belongs to the defendant.

It is not proven that any of defendant’s authors contributed in any manner to the building of this wall.

There are eight windows in this wall — four in the first story and the others in the second.

Four of these windows have blinds, opening and closing on their hinges.

The defendant bought the adjacent lot, on which the said wall partly rests, from the Firemen’s Building Association.

The structures on defendant’s property were, at the time of his purchase, two small houses; one an old frame cottage fronting on the street with one of its side walls extending from the banquette to the front corner of plaintiff’s house, on or near the boundary line of the two premises. The other was in the rear of this lot.

The shutters of defendant’s cottage opened on plaintiff’s flower garden in front of his house.

The defendant had eighteen inches cut off the western side of the building (the side adjacent to plaintiff’s lot), and reduced its width by that number of inches. His shutters no longer open on plain- . tiff’s lot.

The space between the two corners of plaintiff’s building and defendant’s cottages, separated by eighteen inches cut off, as just mentioned, was closed by a wall about seven feet high.

Another building, the one in the rear of the lot, was moved by defendant against the wall of plaintiff, leaving a space along the wall between this moved building and defendant’s cottage in front.

This space was afterward taken up 'with a new structure against plaintiff’s wall and connecting defendant’s cottage with the .said moved building.

There is no window in that wall opposite this part of the building.

The uprights of the building touch the wall of the plaintiff. These uprights average three by four inches in thickness.

Laths were nailed thereon and afterward the inside wall was plastered.

This part of the building has no wall on the outside other than plaintiff’s.

The frame of each of the defendant’s buildings is self-supporting.

Four of the windows are almost entirely closed by the wall of defendant’s building. That part not closed by the wall was closed by the defendant with boards.

Defendant’s buildings are covered with slates.

Where the roof touches the wall there is a coat of plaster, serving as a valley or conduit to the rain falling on the roof.

A shed was constructed in the rear of the last building, one of the walls of which completely obstructed two windows.

The two remaining windows were closed at first with boards, afterward screens were erected.

Plaintiff’s vendor states, as a witness, that the closing of the windows darkened the apartments of the house and caused dampness.

It was her reason for selling, she says.

A skylight was opened; it did not give sufficient light, another witness testifies, and it is necessary, at times, to light the gas in the kitchen.

They also testify that the value of the property was depreciated; the danger from fire was increased.

PLEADINGS.

Plaintiff alleges that the wall is a party wall, and that the defendant had no right to close his windows, which during more than thirty years had given access to light and air.

•That his possession and that of his antecedent owners entitles him tc these windows.

That the defendant has annoyed and harassed him by depriving him of light and air.

Por damage to his property, deprivation of light and air, and the value of half of the wall he claims $4500.

The defendant excepted to plaintiff’s petition on the ground that his allegations were contradictory, and his demands inconsistent, and that he should be made to elect one or the other.

In compliance with the court’s ruling, plaintiff, after having reserved a bill of exception to the ruling, elected to abandon the demand for the value of the wall and rested his case on its being a wall in common.

The defendant filed a general denial, and in addition alleged that his acts, on his premises, were in pursuance of his legal rights as owner.

The plaintiff also filed a special plea of immemorial possession and pleaded the prescription of ten, twenty and thirty years.

He also filed a plea in estoppel, based on defendant’s allegation in his answer, that in acting as he had, he pursued his legal rights as owner.

The judge of the District Court maintained the pleas of prescription and estoppel and ordered that the hindrances be removed, and recognized a servitude of light and air as described in the petition.

The owner of a lot in a city who first builds in a place not surrounded by walls may rest one-half of his wall on the land of his neighbor. O. O. 675.

There is conflict between the article just referred to and Art. 505, O. O.

Under the latter the ownership of the soil carries with it the improvements.

Under the former he has the right to erect a construction on the owner’s property and to remain the owner until his neighbor may choose to make it a wall in common.

Built at his expense, he is the owner. Jeannin vs. DeBlanc, 11 An. 465; Lavergne vs. Lacoste, 26 An. 507.

In each of the cases just referred to, the wall which was the subject of litigation was built at the individual expense of one of the neighbors and rested upon the line of division of the properties adjacent one to the other. In each it was held that the wall was owned by the proprietor at whose expense it was built.

The case principally relied upon by the plaintiff is not’ similar.

The two buildings were separated by a wall in common; it was presumed common, for the reason that each building on the respective lots rested on the whole wall. It was decided that the flues in this wall also were in common as well as the wall used by both proprietors. Weill vs. Baker, 89 An. 1102.

In the pending- case, prior to moving the buildings as before stated, there was no structure against or near the wall.

The fact that this wall separated defendant’s lot from plaintiff’s houses does not make it a wall in common.

Every wall which separates a yard and garden in a city shall be presumed to be common. O. C. 677.

This article corresponds to Art. 656 of the C. N.

Baudry Laeantinerie commenting upon the latter says:

“ The wall which separates a house from a garden or lot is not pre-sumed a wall in common (mitoyen).

“The lawreadsbetweenbuildings; and between enclosure and garden, and not between a building and an enclosure and garden.” Yol. 1, p. 884.

“The owner of the enclosure or of the garden has not the same interest in constructing the wall as the proprietor of the house.” Ib.

He can not be forced to surrender part of his land and made to pay the cost and value of the wall, although of no service to him in building.

The ownership remains in the one who has had it constructed until the owner of the adjacent lot makes it a wall in ccmmon.

“ The defendant contends that until the wall is made common it is her exclusive property * * * it appears to me that view of the case is correct.” 11 An. 465.

It was decided in said case that plaintiff did not have a right of action to have the window closed in a wall which he did not choose to make a party vgall.

It is obvious that in order that prescription may be acquired the owner must be able to assert his right. "

“The wall belonged to plaintiff in full ownership until the owner of the contiguous lots should pay for half of it, and this right would exist so long as that wall stood.” 26 An. 507.

It is in some respects different under the French Code. In a case in which the facts were somewhat similar to those of the case at bar the plea of immemorial possession was maintained.

The grounds were that the owners of the adjacent estate before the wall had been made one,-in common, had the right to have'the windows closed before making it a party wall.

“They, the said'parties, permitted a servitude to be established which they might have prevented.”

“Legislation and jurisprudence have established that servitude of light can be acquired by prescription.” Montagnae vs. Montégu, Cassation, 1869, p. 387.

In Jeannin vs. DeBlanc, the reverse is decided, “ the wall belongs exclusively to the party who built the wall.” The right of action “ remains in suspense until it is made a wall in common.”

This decision is not the only authority.

Under the Code of 1808 the proprietor of a wall not in common adjoining the estate of another had the right to make windows under certain restrictions.

The articles conferring the right were not included in the Code of 1825. The reasons given for the suppression of those articles show that it was not the intention to prohibit the openings in walls thus situated.

“Nous avons cru devoir supprimer oes deux articles qui preseinent au propriétaire d’un mur non mitoyen joignant immediatement Vheritage d’autrui de n’y faire des ouvertures ou fenétres qu’a une cer taine hauteur, et avec des burreaus ou a verre dormant. Nous avons pensé que chaoun doitétre le maitre defaire dans sonbien oe qui lui plait et par consequent, d’ouvrir dans son mur telles fenétres que bon lui semble.” Travaux Preparatories, page 73. (La. C. C. of 1825.)

The question had been previously considered in this and other States and the doctrine has since been followed in numerous well considered cases.

“ The simplest rule, and that best suited to a country like ours, in which changes are continually taking place in the ownership and use of lands, is, that no right of the said character can be acquired, that is, the prescriptive right to light and air, without express grant of an interest in or covenant relating to the lands over which the right is claimed.’'’ Wait’s Actions and Defences, Vol. I, p. 297, p. 295 et alia.

The French text writers are equally as clear as to the right of the owner of lot adjacent to build on his property. The owner who has possessed during thirty years windows at a prohibited distance, has acquired the right to conserve them. But has he, in addition, ac: quired the right to prevent the neighbor from constructing on his land buildings near enough to render the lights useless? The answer of the commentator is in the negative. Mourlon, Vol. I, p. 861.

Equally as clear is Laurent, Vol. 8, p. 54:

Si, dans un mur joignant immédiatement V héritage d’autrui, il pratique des vues au lieu de jours, s’il les possede pendant trente ans, il aura recouvré la liberté de son héritage, la servitude légale de Particle 676 sera éteinte. Mais il n’aura acquis aucun droit sur P héritage du voisin, celui-ci conserve, de son cóté, la liberté de son héritage, il peut construire máme contre les fenétres de son voisin, sans étre tenu de respecter un préteddu droit de vue qui n’ existe pas.

The wall is not a party wall.

The owner of the adjacent lot has not paid its cost, nor its value. .

His buildings were not erected against the wall to support any weight.

The testimony gives rise to the immediate impression that defendant’s buildings were constructed against the wall to close the windows so as to prevent servants and children from prying upon the privacy of his dwelling and premises.

The plaintiff contends that it is a partition wall in order evidently to establish a servitude of light.

If we were to maintain plaintiff’s contention that the wall is one in common, prescription would at most commence to run from the time the buildings were moved against the wall. This would not be of any service to his cause. The acquisition of the right would not have a retroactive effect. There was no estoppel on the part of the defendant. The allegation in his answer that he acted in pursuit of his right as owner is not such an admission as makes it conclusive that the wall was in common.

The wall not being a party wall, the neighbor had no right to its use, and was without authority to close the windows as was done.

The plaintiff having alleged a party wall and the defendants having denied, each manifestly against his interest, we treat the question as an original question and base our conclusion on the testimony, which establishes that it was not in common.

“ Generally a party is not estopped by assuming a position forced upon him by the opposite party.” A. and Eng. E., Vol. V, p. 20; Greenleaf, Vol. 1, p. 34.

Plaintiff urges that a city ordinance has been violated relating to the moving and remodeling wooden buildings. Private individuals have no right of action unless they have personally suffered damages.

“ Ownership gives the right to use, to enjoy one’s property in the most unlimited manner not prohibited by law.” O. O. 491 and 450.

The allegations with reference to damages were not proven, and plaintiff is therefore left without cause of complaint on account of the said violation.

The additional danger from fire was not shown, or any increase in the rate of insurance.

No depreciation in the value of the property was proven.

The vendor to plaintiff says that after the structures had been moved against her wall she accepted $1000 less than the price aq. which she had previously offered the property.

This statement uncorroborated by other testimony does not establish the difference in the value of the property, which should be shown by direct r. ferenee to the value of the house, before the moving and after, and not by what a vendor asked one day and determined to accept the next. The plaintiff lastly urges that the city ordinance was not only violated, but that the defendant in violating it had conceded his breach of the law and fixed matters so as to prevent an injunction.

Our conclusion makes it unnecessary to consider this proposition at length.

The defendant had no right to close windows as he did and to build against and use his neighbor’s wall as he did.

Plaintiff had no right under said city ordinance (actual damages not having been proven) to prevent him from moving his buildings.

The defendant has the right to make the wall one in common by paying half its value, or he can build as near to plaintiff’s wall as he chooses, provided his structures do not touch his wall.

The judgment appealed from is affirmed in so far as it orders that the boards nailed on the windows and any of defendant’s structures touching plaintiff’s wall be moved and made not to touch it; also in so far as it orders the plaster serving as a valley or conduit for water to be taken off plaintiff’s wall.

It is amended by rejecting plaintiff’s demand to have them moved any further than to prevent their touching plaintiff’s wall.