Appeal of Western National Bank , 1883 Pa. LEXIS 30 ( 1883 )

Mr. Justice Trunkey

delivered the opinion of the court, April 16th 1883.

The elaborate and able argument for the appellant and an examination of the testimony have failed to convince us of any error in the finding of the material facts, or in the considerate opinion of the Master. His reasoning upon the controlling points vindicates the decree.

That the foundations of the solid division wall of eighteen inches in thickness erected by the owners of the lots, “ rested seven and three-quarter inches at the north and two and three-quarter inches at the south end, on the land of the Philadelphia Bank,” is a fact which the Master was warranted in finding; we think it would have' been error had he not found it. That wall was built in 1837, by the Bank of the United States and the Philadelphia Bank, it supported the arches in each building and the roofs of both, and the joists of the Pliiladelphia Bank building were let into it six or seven inches. .The buildings were distinct, but their fronts appeared as one continuous structure. There is no evidence to repel the natural inference from the acts of the parties that they intended it for a party-wall. It has been so used ever since.

When the appellants improved their building they strengthened the old division wall. The appellees tore down their building and built larger and also strengthened said wall by adding-to its thickness. In the changes of ownership and changes made by improvements, the right to its enjoyment as a party-wall, for more than forty years, was not denied by the owners -on either side.

The Philadelphia Bank owned both lots and buildings for a period of fourteen days. It purchased the lot and building of the Bank of the United States on May 25th 1847, and on June 8th of the same year, conveyed the same to the Western Bank of Philadelphia. The appellants urge that the grantors in the latter conveyance, or those holding under them, cannot assert a claim that the wall is a party-wall in derogation from the deed. This would be so if the deed contained any clause devesting the grantor’s rights under the statutes relating to party-walls.

The Act of February'24th 1721, clothed the surveyors or regulators with power “ to set out the foundations and regulate the walls to be built between party and party, as to breadth or thickness thereof; which foundation shall be laid equally upon the lands of the persons between' whom such party-wall is to be made ; and the first builders shall be reimbursed one moiety of the charge of such party-wall, or for so much thereof as the next builder shall have occasion to make use of,” before he shall use the same. The Act of May 7th 1855, limits the extent that the party-wall may be placed on the adjoining lot by the next builder. This fixes the maximum of incumbrance on a lot for a party-wall against the'owber’s will.

Every owner of a lot of ground in Philadelphia has a statutory right to make a party-wall between himself and his neighbor, and may enter upon the adjoining lot for that purpose, not going beyond the prescribed limit. This right cannot be taken from him by the adjoining owner building exclusively upon his own land, either to the line, or a short distance therefrom. The first builder is he who first elects to make a party-wall and his right cannot be defeated by the act of another : Monroe v. Conroy, 1 Phil. 441; Morris.v. Balderston, 2 Brew. 459. Prior to the Act of 1855, the extent of the encroachment was determined by the regulators. In Godshall v. Mariam, 1 Binn. 352, it was said : “ There is great reason why the decision of the regulators unappealed from, should be conclusive as to the building, because if it were- not, the walls which were built under the authority of the officers, whom the party was obliged to employ, might be afterwards pulled down. This would be a grievance too ruinous to be submitted to, and cannot be intended to be the meaning of the law.” This would apply to the thickness of the wall as well as to the location with reference to the line.

An owner cannot encroach upon the adjoining lot save for the construction of a party-wall. Each lot being alike servient to the other for that purpose, when the first builder lays the foundation over the line it is presumed that he does so in the exercise of his right. Though he may bring the wall above the basement within the line of his lot, he is bound to use it as if built according to the statute. It matters not that the foundation covers less of the adjoining lot than is allowed, by law : he shall not build so as to deprive the adjoining owner of his privilege : Milne’s Appeal, 2 W. N. C. 513.

Under the Act of 1721 it was the duty of the regulators to set the foundation equally on each lot. Their action unappealed from was final. A mistake would not have changed the character of the wall, though much more of it,was on one lot than the other. By mutual agreement the parties could have set the foundation themselves and jointly have built the wall. Had they made a mistake as to the location of the line their respective rights would have been the same as if the foundation had been set by the regulators. The acts of parties owning adjoining lots, relate to the law securing a mutual advantage in a party-wall, and are to be considered in that relation as well as in the light of the general rule that he who owns the soil owns up to the sky. What would be the rights of either owner if the foundation were mistakenly placed by the regulators, or by act of the owners, so far from the line as to leave room to build a party-wall on the line, is a question not arising in this case.

The statute was enacted at an early day in the building of the city, and has proved a just and beneficial rule for owners of adjoining lots. Deeds ought to be interpreted subject to its provisions, and the usual description by metes, courses and distances, will not be held to defeat the grantor’s right under the statute when he conveys a lot adjoining one which he continues to hold. To have the effect of depriving him of that right the language of the deed must imply such intent. The rule enters into the titles of adjoining lots, unless otherwise expressed.

The Master has so well disposed of the several points raised by the assignments of error, that it could be little more than a repeating of what he has said to remark them seriatim.

Decree affirmed, and appeal dismissed at the costs of the appellants.