Dauenhauer v. Devine , 51 Tex. 480 ( 1879 )

Gould, Associate Justice.

Devine and Dauenhauer, being proprietors of adjoining lots fronting on the Main plaza of the city of San Antonio, entered into an agreement that Devine was “to put up party-walls (whenever he is prepared to build on his lots on Main plaza) with” Dauenhauer, who agreed to give Devine “ one foot of ground, for the purpose of erecting said party-walls, off of his property on the Main plaza,” and “ to pay one-half of the cost of said party-walls.” In case Dauenhauer “ should wish to have plates placed in said party-walls for the convenience of laying joists,” he agreed to pay Devine the cost of said plates.

Under this agreement Devine erected a two-story building, known as the “ dollar store,” on his lot, the cost of the party-wall—two feet thick at the bottom and eighteen inches at the top, located so as to occupy one foot on each lot—being paid one-half by each. In this party-wall was one window, placed there by Dauenhauer with Devine’s consent. At this time Dauenhauer had a one-story building on his lot. Subsequently, Dauenhauer, being engaged in erecting a three-story building on his lot and being about to raise the party-wall to three stories, was approached by Devine, and at his request signed the following instrument: “ In consideration of G. P. Devine allowing me to put the dead third-story south wall of the building I am erecting on the corner of Main plaza and Commerce street on the south wall of the 1 dollar store,’ I obligate myself to allow said Devine to build (should he hereafter wish to do so, in putting another story on his buildings on Main plaza) on that part of the west line of the store occupied by D. and A. Oppenheimer fronting on Commerce street, as also on the end of said store; and I obligate myself to close up the window in the north wall of said ‘ dollar store ’ with solid masonry at the time of putting up my third-story wall.” This instrument, is dated June 7,1877, witnessed by A. Siebel, and signed by 8. Dauenhauer.

This suit was instituted by Devine July 14, 1877, alleging that Dauenhauer, in violation of these agreements and of the rights of petitioner as owner of one-half of the land on which the wall rested, was about to place windows in said third-story wall, instead of making it a dead wall, and alleging that these windows would be of irreparable damage to petitioner, exposing his adjoining building to fire; giving access to the roof thereof to unauthorized persons; depreciating the value of his property by reason of the dangers to which it would thus be exposed; also preventing him from erecting a third story and using the party-wall as intended, praying for injunction and general relief.

The fiat of the judge was not such as to stop the construction of the wall with windows, but enjoined any use of the windows.

The defendant excepted to the jurisdiction of the court on the ground that no amount of damage was alleged, or other facts sufficient to give the court jurisdiction.

The answer of defendant alleged that the instrument of June 7, 1877, was signed by him in ignorance that the term “dead wall” meant a wall without windows, alleging his imperfect knowledge of the English language and other circumstances, and that he was overreached by plaintiff. The answer also charges that said instrument was void for want of consideration; denies any damage or increased danger of fire to plaintiff by reason of the windows; alleges that by reason of iron bars inserted in the windows the wall was substantially a dead wall in accordance with the spirit of the agreement, and that the windows were of great convenience to him and no damage to plaintiff.

There was conflicting evidence as to the circumstances under which Dauenhauer signed the paper of June 7. Several witnesses testified that the danger of fire from the windows would be greater to the three-story building of Dauenliauer than to the two-story building of Devine, though there would be some danger to the lower building from falling cinders. The architect testified that the party-wall was of sufficient strength to support the third story. The window in the second story referred to in the agreement was closed up. The only consideration for the agreement of June 7 was stated by Devine to be his assent to Dauenhauer building a three-story wall instead of a two-story wall, as, he says, .was first contemplated. An architect testified that the term “dead wall” means a wall without openings, as technically used by architects and masons, but is not generally used in common language, and not generally understood by other than architects and masons. Another witness thought the expression a common one, meaning a wall without doors or windows.

The cause being submitted to the court, it was decreed “that the instrument signed by the said S. Dauenhauer, dated June 7, 1873, is a valid subsisting agreement between the said plaintiff and the said defendant,” proceeding to set out the agreement in full. It was further decided that the injunction be perpetuated; “that the wall shall be and remain a dead wall, without windows or openings of any kind; that the said Dauenhauer shall wall up with masonry the windows placed in the third story of his said south wall during the pendency of this suit,” and, in default of his doing so within thirty days, directing the sheriff to cause said windows to be walled up and collect the cost of Dauenhauer as under execution.

In regard to the question of the jurisdiction of the District Court, our opinion is, that the nature of the suit, the injury complained of, and the relief sought were such as to give the District Court jurisdiction, independent of the amount of injury alleged. The title and possession of land were so far involved as to make the case one for the District Court.

The objections to rulings of the court on the preliminary injunction and the admission of testimony, are believed to present no questions requiring special notice. The issue of fraud in procuring the instrument of June 7 was one of fact, on which the evidence was conflicting, and on that point the finding of the court is conclusive.

The remaining questions may be stated as follows:

1. Was the instrument of June 7 a valid contract, or was it invalid because without consideration ?

2. Did Dauenhauer have the right to insert windows in the third story of the party-wall?

3. If not, was the insertion of the windows a sufficient ground for injunction ?

4. Is the decree of the court in any respect erroneous ?

As we have no statute on the subject of party-walls, the rights of parties interested in such structures are to be regulated by the general principles of law and by the agreement, either express or implied, entered into.

The original agreement between Devine and Dauenhauer was for a party-wall, that is, a “ dividing wall between their houses,” resting equally on the land of each, and “ to be used equally by each for all the purposes of an exterior wall.” (Fettretch v. Leamy, 9 Bos., 530.) After the erection of the wall each party continued to own in severalty his own lot and building thereon up to the division line; but each had an easement in the other half of the wall which entitled-each to the use of the whole wall as a party-wall. (Freeman on Co-tenancy and Partition, sec. 255; Matts v. Hawkins, 5 Taunt., (1 Eng. Com. Law,) 20; Partridge v. Gilbert, 15 N. Y., 601.)

By the terms of their agreement the height of the wall was not specified, and in the absence of any such agreement or' understanding the authorities recognize the right of either party to raise the wall, if it be of sufficient strength and can be raised without interfering with or injuriously affecting the rights of the other party. (Matts v. Hawkins, 5 Taunt., 20; Cubitt v. Porter, 8 Barn. & Cress., 257; Brooks v. Curtis, 50 N. Y., 644; Wash. on Ease., p. 453, citing Code Napoleon, art. 659; Wood on Nuisances, sec. 234; Eno v. Del Vecchio, 4 Duer, 53; Webster v. Stevens, 5 Duer, 553.)

Although at the time of their agreement the parties may have each contemplated erecting a two-story building, it would be unreasonable to imply that either intended to preclude himself from such an improvement as the addition of another story, or from the free use of his own property for that purpose. The more reasonable implication is, that the party-wall was intended to be raised with the buildings of either party, thus adding to rather than limiting the facilities for improvement by each.

The original agreement being silent on the subject, and the wall being of sufficient strength to admit of it without injury, Dauenhauer had the right to raise it to correspond to his three-story building without any further permission from Devine. It follows that the agreement of June 7 was without consideration, and was not binding on Dauenhauer as a contract.

But whilst Dauenhauer’, in common with Devine, had the right thus to raise the dividing -wall used by them in common, his right was to raise only such a wall as they had agreed on, and that was a wall without windows. The question is, what were his legal rights, not what was most convenient or profitable to him. His right to raise that part of the wall not on his own land could only grow out of the consent of the owner, and that consent was to a party-wall, a dividing wall between their houses, and obviously did not contemplate windows or doors. Ordinarily, division walls between houses of different proprietors would be walls without openings. In cities, one important consideration in building is danger of fire, and the construction of substantial dividing walls without openings is one of the safeguards against fire. In England, and in some of the cities of the United States, the regulations in regard to division walls are largely controlled with reference to fire. See Vollmer’s Appeal, 61 Penn. St., 118, for a valuable history of the legislation in England and in Pennsylvania on that subject. Under the legislation in Pennsylvania, a party-wall in Philadelphia must be a solid wall of brick or stone without openings, and the erection of a wall with windows is held a case for the restraining ¡lower of equity. (Vollmer’s Appeal, 61 Penn. St., 118; Sullivan v. Graffort, 35 Iowa, 532.) The Code Napoleon contains similar provisions. (Wash. on Ease., 555, citing Code Nap., arts. 660, 662.)

The extent of the injury to Devine in this case may not have been great, but we have seen that such an injury has been elsewhere regarded as calling for equitable interposition; and our opinion is, that the nature of the injury and the relation of the parties to the party-wall made injunction the proper remedy.

The decree of the court, however, must be reformed in so far as it declares the validity of the agreement of June 7.

Not only was that agreement without consideration, but there was no prayer authorizing such a decree. The decree will be reformed in this respect, but in all other matters will be affirmed, the costs of appeal to be taxed against apppellee.

Affirmed.