Barns v. Wilson , 116 Pa. 303 ( 1887 )

Opinion,

Mr. Justice Clark :

The plaintiff in this case sued for a quarter’s rent accrued upon a written lease of a dwelling-house, the east wall of which was a party wall. The defendant in his affidavit set up for defence that before the rent became due the party wall was condemned under the Act of 20th May, 1857, as insufficient for the support of a building proposed to be erected by the owner of the adjoining lot; that the adjoining owner, under the authority of law, removed the wall and proceeded to the erection of a new one, and that the effect of this was to render the demised premises unfit for use as a dwelling; that the defendant paid the rent until the house became uninhabitable and was obliged to and actually did remove therefrom. The court entered judgment for want of a sufficient affidavit of defence, and this is the error assigned.

Every lease of land implies a covenant of quiet enjoyment, but that covenant extends only to acts of the lessor himself and to injuries inflicted under title paramount; it is not designed as an indemnity against any and all disturbance of the lessee’s enjoyment of the land under the law: Frost v. Earnest, 4 Wh. 86; Dobbins v. Brown, 12 Penn. St. 75; Moore v. Weber, 71 Penn. St. 429. The mere fact that the house became uninhabitable is not enough: Arden v. Pallen, 10 M. & W. 321; Carson v. Godley, 26 Penn. St. 117; Hazlett v. Powell, 30 Idem 293; this condition of the property must result from the act of the lessor, or from those holding title paramount.

It is not pretended that the lessor had anything to do with the removal of the party wall; or, indeed, that the lessee was evicted by any act of his; the contention is, that the act of tbe adjoining owner was an eviction for which the lessor was liable; that the injury was from a paramount title, that is to say, from the exercise of a right existing in the adjoining owner, subject to which the plaintiff owned the wall which was part and parcel of the premises demised.

We do not think this view of the case can be sustained. The right of the adjoining owner to maintain the party wall in such form as to support the building he proposed to erect, was not in any proper sense a defect in the plaintiff’s title. The right arises out of a provision of the law, to which all owners of real property in the city of Philadelphia are subject, and in reference to which all conveyances of land, whether in fee or for years, must be supposed to have been made and accepted. Titles to real estate are everywhere held subject to such constitutional and legal conditions affecting the enjoyment thereof, as shall from time to time be established; all are subject to the commonwealth’s right of eminent domain and to such statutory and other police regulations as affect the safety, health and good order of society; one tract of land, from its mere location with respect to another, may owe it a servitude, and one man must so use his property as not unnecessarily to injure another. These are not defects in title; they are simply the legal conditions which affect the owner’s enjoyment of his own property. If the conveyance in this case, ihstead of a lease for years, had been in fee, with the usual covenants for title and enjoyment, it would certainly not be pretended that the existence of the party wall, or its removal, would have constituted such a breach as would have sustained an action. The title, for anything that appears, was perfect under the law, and the possession was in accordance with the title. If the party wall may be called an encumbrance at all, it is an encumbrance in the same sense as a public road, of which, as it affects the physical condition of the property, the purchaser must take notice. Such an encumbrance would not be within the meaning of the ordinary covenant of title or of quiet enjoyment: Memmert v. McKeen, 112 Penn. St. 315.

The law relating to party walls, as was said in Evans & Watson v. Jayne, 23 Penn. St. 34, is no invasion of the absolute right of property; it prescribes simply a rule for the convenient, economical, and safe enjoyment of property by the owner; and with reference to which, all conveyances must be supposed to have been made. It must therefore be assumed, that this contract of lease was made with reference to such a possible contingency as did in fact occur. The lessee might have protected himself by a special contract, but he did not, and therefore cannot complain. The act of the adjoining owner was a lawful act, performed in a lawful and proper manner, and the lessor took no part in the performance of it, indeed, was wholly powerless to prevent it. The loss of the rent must fall either on the lessor or the lessee and as the latter is under a voluntary, express and absolute promise to pay the rent, he ought to perform his agreement, when the lessor is in no default whatever.

The judgment is affirmed.