Palmer v. Evangelical Baptist Benevolent & Missionary Society , 166 Mass. 143 ( 1896 )

Holmes, J.

The wall complained of is not fit for use as a party wall, and the main question is whether the defendant was bound, if it built, to make a wall fit for such use. This depends upon the construction of one or two ambiguous phrases in the deed attached to the plaintiff’s bill. At the date of the deed the plaintiff had a house, one wall of which was on the boundary-line between the plaintiff and the defendant. The deed authorizes the defendant to build a party wall as indicated by a plan drawing referred to. The drawing indicates a wall going to a height a little above the plaintiff’s first floor. The defendant built a sufficient party wall to the height mentioned under the plaintiff’s wall, which thereafter was supported by it and occupied all of the plaintiff’s side of the division line, and in part extended across it. The defendant was erecting a large building, and needed a much higher wall on the line. To have carried the party wall higher would have necessitated widening the foundation, which could not be done on the plaintiff’s side of the division line because of a passageway there, upon which she had no right to encroach. It also would have required the removal of the plaintiff’s wall just mentioned, under which the party wall had been built. The defendant, therefore, built the wall which is the subject of this suit on top of the plaintiff’s wall. Its outer face is about four inches on the defendant’s side of the division line.

The deed on which the plaintiff relies does not disclose a thoroughly thought out scheme, and, as it is a deed poll executed by the plaintiff alone, will be construed more favorably for the defendant in case of any real doubt as to its meaning.

It provides that “ said wall when so built shall be and remain a party wall,” and that the plaintiff, upon the completion of said wall, shall pay four hundred and fifty dollars as full payment for one half of said entire wall. The words “ said wall ” here, we think, mean the wall of the height shown in the plan. The instrument makes an antithesis between the “ said wall ” and “ any wall resting thereon or any addition thereto.” ^* It also provides for a further payment for any addition, when used by the party not making the same. The words under which the defendant has proceeded are, “ It being understood that either party may add to said wall in height . . . using good materials and workmanship, and conforming to the building laws, and doing work from his own side if the other side is built upon.” The last words, in our view, qualify the permission to" add to the wall, as well as the intervening one to repair or rebuild.

The words contemplate that existing walls, such as the plaintiff’s, may be left standing, and, as we have said, this would have had to be removed for a continuous party wall. The addition to the thickness required, if the party wall was to be carried higher, was not only impossible on the plaintiff’s side, but was expressly provided against by the deed. At the same time, the plaintiff, when she executed the instrument, knew that the defendant was about to erect a large building, which of course would need high walls. Under these circumstances, while it may be admitted that the deed has some language looking to the possibility of the party wall being raised higher, it seems, to us reasonable to construe it as also permitting the party who finds one half of the space occupied to build a separate wall to suit himself, without further restrictions than those expressed as to materials and workmanship, and those contained in the building law as to external walls not party walls.

Bill dismissed.

* The clause in the deed herein referred to reads as follows : “It being understood that either party may add to said wall in height, depth, or thickness, and in ease of damage or defective condition may repair or replace or in case of destruction rebuild said wall, or any wall resting thereon or any addition thereto, carrying up flues and the like to leave the other party as near as may be in as good condition as before, and using good materials and workmanship, and conforming to the building laws, and doing work from his own side if the other side is built upon.”