Putzel v. Drovers & Mechanics' National Bank , 78 Md. 349 ( 1894 )

Bryan, J.,

delivered the opinion of the Court.

Selig G. Putzel filed a bill in equity against the Drovers and Mechanics’ National Bank of Baltimore. It was-alleged that the defendant, without right or justification was about to tear down the rear wall of the complainant’s dwelling-house, and thereby render it untenantable and do him irreparable damage. The bill prayed an injunction to restrain the defendant from proceeding as-alleged, and it was accordingly granted before answer. There was also a prayer for general relief. After answer the defendant moved a dissolution of the injunction. Testimony was taken on both sides, and when the cause-Game to final hearing the injunction was dissolved, and the bill dismissed. Complainant appealed. •

We think that a statement of the material facts of' the case as they appear to us will sufficiently show the grounds of our opinion, without the necessity of a discussion of the testimony of the different witnesses. Putzel, the complainant, is the owner of a leasehold interest for ninety-nine years, renewable forever, in a-lot of ground in the City of Baltimore, on the west side-of Eutaw street, between Payette and Lexington streets. He acquired this property in the year eighteen hundred and sixty-six. Por many years before his purchase, and ever since then, there has been on this lot a substantial brick dwelling house, which extended back to its westernmost boundary. The Drovers’ and Mechanics’ Bank in the year eighteen hundred and eighty-eight, became the owner of a leasehold interest in a lot of ground fronting on Fayette street, and running back northerly to Marion street, and binding for a portion of its easterly line on the westernmost boundary of Putzel’s lot. It is not distinctly stated in the record, but this leasehold interest is evidently for ninety-nine years, renewable forever. The Bank’s lot and Putzel’s lot are separated by a division brick wall, which, by the measurements proved in the case, is shown to be built partly on the ground of one of these parties, and partly on the ground ■of the other. This wall has been standing for a very long time, certainly for more than thirty years before the transactions which are the subject of complaint in this •case. As far as we can ascertain from the testimony, Putzel’s house, as originally built, had this division wall as its rear wall, but the rear wall was not built higher than the top of the division wall. In eighteen hundred and seventy, Putzel put an additional story on the back building, placing its rear wall on the top of the division wall. This division wall was used by the owners and occupants of the lot now owned by the Bank for the purpose of designating the boundary line between it and the Putzel lot. There was evidence of the use of it also for a series of years as a support for the frame of a grape arbor. The Bank, in the year •eighteen hundred and ninety-two, commenced the erection of a large six story building for the purposes of its business, and in the prosecution of the work proposed to take down the entire wall separating the two lots, ■and erect on the same line another wall of sufficient strength and thickness to support, the new building, not •encroaching on Putzel’s lot, and offering to give him the benefit of the new wall as a partition wall for the benefit of any building to be erected on his lot. The •question in the case is whether this action on the part of the Bank would he a legitimate exercise of its rights of property.

No one seems to know when the wall in question was-built; in all probability the time was beyond the limit of living memory. There is some reason to think so-from the fact that the deeds which created the leasehold interests in these lots were executed towards the close-of the last century, and early in the beginning of the-present. It seems to have been erected for the purpose of marking the boundary between the lots, and to have been always used for that purpose. The soil of the-respective owners was covered by it, and this was the use of his soil which each owner elected to make for his-own benefit. Each one owned the portion of the wall which was on his own ground. There seems to have-been no cessation of the use of it, „in the way in which it was intended to be used, that is to mark the boundary-line. There was no ouster of the possession of the soil. Each co-terminous proprietor owns the portion of the-wall which rested on his own ground, as he had continued to own it from the beginning; and he has actual and beneficial possession of the soil by reason of the-occupation and use of it by means of his portion of the wall. Surely there could not be a more distinct and unequivocal exercise of the right of ownership than to-build on one’s own land a house or a wall, and to use it-continuously for the purposes to which it was suitable. It is hardly necessary to refer to decided cases, but one-case was cited in the argument having such peculiar features, that it may well be mentioned while we are-considering the subject. The question was about the title to certain property in the City of London, which was occupied by a brick house.' In the south wall of the house there was a stone tablet, bearing an inscription which stated that when New street was widened nearly a century before the time in question, this wall had been built by the East India Company, and that it remained their property. The house had been claimed by the plaintiffs and their predecessors in title, and occupied by their tenants for thirty-eight years, and during all that time there had been no acknowledgment of the title of the East India Company; upon these facts the question of adverse possession was presented. The Court, however, speaking of the inscription on the tablet said: “It was in truth, a statement on the wall itself that the wall, forming a substantial part of the property, had been erected by and was the boundary wall of the adjoining owner, for the East India Company of course continued to be the owner of the soil of the street, although dedicated to the public. There was nothing, therefore, whatever, to lead to the presumption that any title had been gained adverse to that of such adjoining owner by adverse possession, Where there is a boundary wall, and that boundary wall remains undisturbed, and an inscription is allowed to remain on it, which states that it is tjie boundary wall of the adjoining proprietor, it seems to us idle to suppose that any question of the Statute of Limitation or of adverse possession, or of cesser of possession could properly arise, it was, therefore, manifest that the wall belonged to the East India Company.” Phillipson vs. Gibbon, L. R., 6 Chancery Appeals, 428. We pass by the use of the wall as a support 1'oy the gsapo artoi, because that was significant only as tending to show an act of ownership, and we think that the ownership is fully maintained on the grounds already stated. But although there was no amotion of the possession of the owners of the Bank lot, it does not follow that Putzel had not acquired some rights to the use of the division wall. He had used this wall for more than twenty years as a support to his house; the enjoyment of it for this purpose had been notorious, peaceable, uninterrupted, and “as of right.” Under these circumstances the law considers that he had a prescriptive title to the use of it in the manner in which he had enjoyed it. It is conducive to the peace of society that claims of right which for a long time have been acquiesced in and regarded as settled should be protected by the law, and the space of twenty years has been adopted as the period for ripening claims of this description into titles. Putzel used this division wall as the rear wall of the lower part of his house, and also used it as a support for the wall of an additional story. To the extent of such use his title is clearly established. We have said that this use was not an ouster of the co-terminous owner from the possession of the soil. It was an easement for the support of the rear wall of the house. By the common law easements must be established against an owner of an estate of inheritance; although they may arise from user, such user is regarded by fiction of law only as evidence of a grant, and as the right claimed is of a permanent nature, it is said that the supposed grant could have been legally made only by a party who could impose a permanent burden on the servient tenement; that is to say, by the owner of an estate of inheritance. But in this case we have no concern with this principle of the common law, and need not inquire into its application, or into seeming modifications of it. Both of the lots in question are held under leases for ninety-nine years, renewable forever; and it is well settled that the holders of such leases have the absolute control and management of the property; they usually have, in point of fact, far more valuable interests in it than the reversioner who holds the estate of inheritance. Crowe vs. Wilson, 65 Md., 481, 482. The Bank retained all its rights in the division wall which are not inconsistent with the enjoyment of the easement. It was bound to permit it to be used as a support for Putzel’s house in the accustomed maimer; but this is the limit of its obligation. It would be unreasonable to deny to it the right to improve its own property according to its interests and inclinations; provided it did not infringe the rights of ■other persons. In fact the wall which it proposed to take down was insufficient to support the building which it desired to erect. If this should be taken down and another larger and stronger one built in its stead, it would thereby exercise its own legitimate rights of property; and if it gave to the adjoining house the same right of support in the new wall, which it had in the old one, it would not injure its neighbor. This seems to us the just settlement of this controversy. Putzel may be put to some inconvenience while the building is going on, but this is one of the unavoidable consequences of living in a closely built city. We have said that each portion of this division wall belonged in severalty to the proprietor on whose ground it stood, but, even if these proprietors had been tenants in common of this wall, the result would not have been practically different. In Standard Bank vs. Stokes, Law Reports, 9 Chan. Div., 72, Sir George Jessel cites with marked approval Cubitt vs. Porter, 8 Barn. & Cress., 257. He quotes as follows from the opinion of Mr. Justice Bayley: “There is no authority to show that one tenant in common can maintain an action against the other iot a, iehVhdY&rf oi the swbjeet-nYatteY of the tenancy in common, the party removing it having at the same time an intention of making a prompt restitution. It was not a destruction. The object of the party was not that there should be no wall there, but that there should be a wall there again as expeditiously as a wall could be made.” And in a subsequent part of his opinion, he says: “As 1 have read the law from the statements of eminent Judges, he (that is a tenant in common,) has a right to pull down when the wall is neither defective, nor out of repair, if he only wishes to improve it, or put up a better or handsomer one.” Chancellor Kent was of the^ same opinion. In the following passage from his Commentaries, (volume 3, page 437,) he assumes the right as settled: “If there be a party wall between two houses, and the owner of one of the houses pulls it down in order to build a new one, and with it he takes down the party wall belonging equally to him and his neighbor, and erects a new house and new wall, he is bound on his part to pull down and reinstate it in a reasonable time, and with the least inconvenience.” And from the remarks of Chief Justice Bartol, in Glenn vs. Davis, 35 Md., 219, it may be readily inferred that the opinion of this Court was the same.

The allegations of the bill of complaint were sufficient to give a Court of equity jurisdiction and they justified the preliminary injunction. The complainant has not proved the precise title to the wall which he alleged; although he has proved a title to a portion of it and an interest in the other portion by way of easement. For the reasons which we have stated, we approve of the dissolution of the injunction, and to that extent the decree below will be affirmed. But the. right to take down the wall is not absolute and unconditional; it is qualified in the manner which we have explained in a previous part of this opinion. The Bank is bound to finish the division wall at its own expense, and to allow to Putzel’s house the same right of support which it had in the old wall, and to indemnify him for the necessary expenses-which he has incurred and may incur in protecting his property from the consequences of the removal of the old wall. For failure to do these things it would be liable to an action at law. But as a Court of equity had jurisdiction of this case, although it could not give the precise relief prayed, it was proper, according to well set-tied principles, to do complete justice between the parties, and thus avoid multiplication of suits in the future. It ought to have retained the bill for the purpose of settling and adjudicating any claim which may arise in favor of Putzel against the Bank, in accordance with the principles which we have stated. We disapprove of that portion of the decree which dismisses the bill.

(Decided 12th January, 1894.)

Decree affirmed in part, and reversed in part, and cause remanded for further proceedings; the costs in this Court to he equally divided between the parties.