Citation Numbers: 177 Iowa 634
Judges: Deemer, Evans, Preston, Weaver
Filed Date: 9/29/1916
Status: Precedential
Modified Date: 7/24/2022
The case is somewhat complicated, but the facts are not in dispute. There was some evidence introduced, but the facts are shown largely by the pleadings and
The plaintiff and defendants bought their properties at about the same time, in November, 1906. The defendants claim that the wall between the properties is a party wall, under Section 2999 of the Code, to be later referred to, and, as we understand it, appellant claims it to be a party wall, under Code Section 2994 and other sections of the statute; though in his reply argument he claims that the east wall was at no time a party wall, but that, if it was such, that characteristic of the wall was lost when the appellees and appellant entered into the contract fixing the dividing line and made the conveyances to each other which put almost all, if not all, of this wall on plaintiff’s premises. No mention is made in that contract and the conveyances, of the wall in question. The contracts fixing the dividing line and the conveyances to each other were executed May 7, 1907. Plaintiff purchased his
“The east % of Lot 1 and of the North % of Lot 2 in Block 1 of the town of Fort Des Moines, now within the corporate limits of the city of Des Moines, Polk County, Iowa.”
Plaintiff’s property comprised two business lots fronting north on Locust Street, and the business lots were locally known as 712 and 714 Locust Street. There was a public alley east of it, and the property extended south from Locust Street 88 feet. The building on the property was 80 feet deep, leaving a private alley 8 feet wide in the rear. On the- date last mentioned, defendants were owners in fee and by their tenants were in possession of their property described as follows:
“The middle % of Lot 1 and of the north % of Lot 2, in Block 1 of the town of I]ort Des Moines, now within the corporate limits of the city of Des Moines, Polk County, Iowa.”
This parcel of land also comprised two business lots, fronting north, adjoining on the west the plaintiff’s property. Defendants-’ lots were locally known as 716 and 718 Locust Street, 716 being east of 718.' There were buildings upon both plaintiff’s and defendants’ properties, partly two story and partly one story. After plaintiff purchased his property, it was learned that the frontage on Locust Street from the alley to Eighth Street was about 2 feet more than 132 feet, as then supposed; that there was some dispute as to the west boundary line of the property described in his contract of purchase; the frontage was divided equally by the three lot owners so that appellant owned %, or 44.72 feet west of the alley and defendants owned 44.72 feet next west; and on May 7, 1907, a written contract, before referred to, was entered into, fixing the boundary line between appellant’s and appellees’ properties.
The contract of May 7th was signed by plaintiff and
As the east side of the east wall of the old building, No. 716 Locust Street (defendants’ east lot), was .4 of a foot, or 4.8 inches, east of the newly established dividing line at the rear, and as it veered slightly to the east as it approached Locust Street, until, at the south, line of Locust Street, its east side was .9 of a foot, or 10.8 inches east of said newly established dividing line, this newly established dividing.line cut off most of the east wall, and, at the front, 2 or 3 inches of the building, No. 716. In other words, most of the old wall and 2 or'3 inches of the building itself, near Locust Street, were thus made to extend over and to rest upon the plaintiff’s lot. For this reason, as defendants claim, and for the reason that the Des Moines Plumbing Company still held a lease of said building which did not expire until April 1, 1910, the following provisions 'were incorporated in the agreement, to wit:
“This agreement and conveyance is made subject to the lease or leases now h^eld by the Des Moines Plumbing Company, covering a portion of the premises hereinbefore described, and is not in any way to affect or disturb any rights of said Des Moines Plumbing Company which have been heretofore acquired upon said lease or leases, or which have been acquired by it, by possession and occupancy of said premises, or any part thereof.
“Neither shall this agreement convey or give any right whatsoever to the said Bertha Clapp Harbach and Falk J. Younker, or either of them, their successors or assigns, to any
At the time this contract was executed, defendants ’ property, No. 716 Locust Street, was occupied by the Des Moines Plumbing & Heating Company, a copartnership composed of W. M. Kubec and C. W. Rosene, under a 10-year written lease from the former owner of the property, one Sarah A. Clapp. The lease will be referred to later. Some 15 years before the date of the contract fixing the dividing line, or on October 1, 1892, Sarah A. Clapp, the then owner of the premises now owned by defendants, had made an 8-year lease of the premises No. 716 Locust Street to one C. W. Fowler, which lease expired April 1,1900. The Fowler lease provided that the lessee ‘ ‘ agrees not to sell, assign or transfer this lease, nor underlet said premises, or any portion thereof, without the written consent of the lessor. ’ ’ Another paragraph of the lease provides that the lessee “agrees to erect a building, to be used for plumbing and gas fitting purposes on said premises.” Another paragraph of the lease provides that the' lessee reserves the right “upon the termination of this lease, to remove the buildings from said premises provided he has complied with the covenants and agreements herein contained; otherwise the same shall remain as security for the performance and discharge thereof.”
Fowler built the building No. 716 shortly after he leased
“And the said party of the second part (the plaintiff) will, at his own cost and expense, insert the joists that reach said new wall and attach the building now occupied by the party of the first part (the Des Moines Plumbing Company) to the said wall constructed by the party of the second part, and finish the west surface of said newly constructed wall for a distance of two stories above the ground, so that the rooms in said building and the building now occupied by the said party of the first part shall, as soon after the completion of the said wall as possible, be left in as good condition as the same are now in; that the party of the second part will do such re-papering and refinishing on the inside of the rooms now occupied by the party of the first part as shall be necessary to leave the same in as good condition as they are now in. And the
The defendants were not parties to this agreement. Upon the execution of this agreement, plaintiff proceeded to erect his building. He tore down the east wall of defendants ’ building, a party wall as is claimed, and undermined it. The concrete foundation, or at least the footing for the foundation of the new Wall, was built so as to project from 4 to 6 inches west of the dividing line and upon defendants’ property. The brick wall of the basement, above the, foundation, was built entirely upon plaintiff’s ground, the west side thereof abutting upon the dividing line agreed upon in the contract of May 7, 1907, except at the north or Locust Street end, where it was widened into a pier 3 feet wide east and west and 44/2 feet long north and south. 17 inches of this pier projects west of the dividing line and over and upon plaintiff’s lot. In accordance with the contract between plaintiff and the plumbing company, of July 12, 1909, as plaintiff’s west wall was being built, the plaintiff himself inserted in it the joists of the main floor, the second floor, and .the roof of the building No. 716, and restored, or at least partially restored, the inside of the east wall of said No. 716, as provided in said contract with the lessee of the building. On March 25, 1910, the 10-year lease of the Des Moines Plumbing Company of the building No. 716 being about to expire, and, as defend-,' ants claim, in order to settle and amicably to adjust the rights of said company, or, as it was then styled, the Des Moines Plumbing & Heating Company, if any it had in and to the building, heating plant and fixtures in the buildings, the defendants entered into a written contract with the Des Moines Plumbing & Heating Company with reference thereto. This contract provides, among other things:
“Party of the first part (Des Moines Plumbing & Heating Company) does hereby sell, assign and transfer to the parties of the second part (R. R. McCutchen and W. F.
About April 15, 1910, the “Des Moines Plumbing Company,” or the “Des Moines Plumbing & Heating Company,” having surrendered possession of the building No-. 716 to the-successor of its lessor, the defendants herein, the latter commenced and proceeded to- remodel th§ front thereof, strengthen its floors, repair its roof, and repair and redecorate its interior walls, without paying, or offering to pay, or in any way acknowledging liability to, the plaintiff for any portion of the cost of the west wall of plaintiff’s building with which he had replaced the old wall of defendant’s building.
In making the changes or repairs on their building, defendants have not put any basement thereunder. Defendants ’ building, No. 716 Locust Street, was built about the year 1892. It was 80 feet deep. It had no cellar or basement under it, and, as we understand it, there was no cellar or basement under plaintiff’s building until he rebuilt. The foundation of the east wall of defendants’ building, for its full length, rested upon the surface, or upon the ground, a few inches below the surface of the lot. For a distance of 25 feet south of Locust Street, the brick wall of defendants’ building was two stories high, thence south 20 feet, it was one story high and built of brick. For the next 19 feet south, it was two stories high, the first story built of brick, the second story built of wood; 2 by 6 studding or uprights resting upon the top of the brick wall, not lathed or plastered, but built against the adjoining weather board wall of the building to
“I moved out just before Younker commenced to improve; noticed the work occasionally as it progressed. He tore down the walls along the west side of his property and built a brick wall there. They sawed off the joists of the other, to my recollection, and let them stick in on the brick wall they were building up, and bricked around them, and that held the joists. When they built up their wall to the first floor, they cut off the joists long enough to stick into that wall, and then bricked up. When they came to the second floor, they did the same thing. When they came to the roof, they did the same thing, and I should say they flashed the roof on the Younker wall. It is flashed there now, so that Younker’s new wall now, the west wall, is the dividing wall, and the east wall of the building No. 716 Locust Street, back 80 feet.”
One of the defendants’ witnesses, who is also a general contractor, testifies:
‘ ‘ They built in the construction of our building into their wall, the whole distance of 80 feet. The joists at the rear end and towards the rear of the building reached to the new wall. Probably all of them did not reach. On the short pieces, they spiked pieces, or nailed pieces of joists onto the sides of them, and extended them through so they would reach into the wall. I am sure all the first floor joists went into the new wall. The second story was connected in the same manner,
In April or May, 1910, soon after it was vacated by the plumbing company, defendants commenced repairing their building, No. 716. The- dimensions of the building were not changed in any particular, nor was the east wall extended in any direction, either up or down, or north or south. In describing what they did, one of the defendants testified as follows:
* “After the plumbing company vacated, we put in a new plate glass front in our building; put in a new floor on the first floor; plastered all the walls of the first floor; a part of the first floor was plastered. We finished plastering the back to the rear, put new windows at the rear to give more light and new doors, and fixed up the sky-light with new glass, new frame and painted.it. We did nothing with the east wall except plastering, papering and painting it, except in front at the sidewalk line against the east wall, we put in an iron post where there was a wooden one. The iron post rested on the foundation that the wooden post rested on. Q. That was all you did with the wall? A. Yes, sir; we put in some extra floor joists along by the side of some that were not, we considered, strong enough, in the way they had been spliced, to reach the brick wall. Q. Where Younker had spliced them, in some places you put in new solid ones?
On cross-examination, Mr. Mitchell said:
"In putting in these new joists we took out the brick along the side of the joists that had been built in and made that hole larger and stuck our joists into that hole by the side of the other joists. We made a new hole for the new joists, enlarged the hole that was there.”
And upon redirect examination, he testified:
‘ ‘ Q. Did you make new holes or simply enlarge the holes that Younker had already made? A. Enlarged the holes that were already-miade. Q. And put those new joists alongside of the old ones which had already run into the wall? A. Yes, sir. Q. There were no other joists put in except those by you? A. No, sir.”
This testimony is not disputed. It was stipulated that the surface 'area of the Younker wall, now used as the east wall of defendants’ property, is 80 feet by 23 feet, less 20 by 10 feet, above the first floor joists. As we understand it, the 20 by 10 feet just referred to is the east side of the open court or light well, which now occupies and has always occupied a space in the center of the second story of defendants’ building. Defendants allege that they paid to the plumbing company $148.40, referred to in the contract of March 25, 1910, and permitted the plumbing company to occupy the premises free of rent to April 15, 1910, and claim that by this they paid the plumbing company for the use of the wall for which plaintiff is now asking pay, and the evidence shows that they did pay such sum of money and permitted the plumbing company to remain in the building, but plaintiff denies that this constitutes a payment for the interest in the wall. The east line or side of the plumbing company building extended over
“That the evidence fails to establish a cause of action against the appellees, or that they are indebted to the appellant. That the first person who used the appellant’s west wall as a party wall was the Des Moines Plumbing & Heating Company, appellees’ lessees, said lessees, if anyone, being liable to appellant for the cost of said wall. That all liability of appellant’s neighbor to contribute to the cost of appellant’s wall was adjusted and settled by the contract, Exhibit ‘D,’ dated July 12, 1909, between the appellant and the Des Moines Plumbing & Heating Company, and that appellees are not liable to appellant because they received a bill of sale dated March 25, 1910, from the Des Moines Plumbing & Heating Company, conveying the Des Moines Plumbing & Heating Company building to appellees free from liens and incumbrances ; and that the wall erected by appellant comes within Section 2999 of the Code, and the evidence fails to. show that the appellees were using^as the east wall of their building, any more of' the new wall erected by the appellant than of the old wall which formerly divided the coterminous properties. ’ ’
Appellees contend that, under the circumstances of this case, the eases cited do not support appellant’s contention. Some of them are cases where a building was erected on leased land, and hold that, as between the parties, the building should be considered as personal property. Others involved the question of purchasers with notice of the agreement. In one of them, it was held that the execution of a lease providing that the lessee should, upon the termination of the lease, deliver the leased premises in as good condition as they were then in, does not deprive the lessee of the right granted to him by the lessor under a prior lease to> the same premises to remove improvements erected by him, the occupancy being continuous under both leases. Counsel for appellees concede that, from these holdings, the court is inclined to hold that, where a lessee holds under a lease which reserves to him the right to remove the fixtures, by taking a renewal lease which contains no such reservation, he does not surrender his claim to the fixtures, but say that this is where the subsequent lease ran from the same owner, or his grantee, who had notice of the reservation, to the same lessee. This is true, that in none of the eases cited is recognized the right of removal by a lessee of a building erected upon real estate by a prior and different lessee, under a prior and different lease, simply because the first lease granted to the lessee therein any such right of removal.
On the other hand, it is contended by defendants at this point that, at all times during their ownership of the east
Another way to make a dividing wall a party wall is under Section 3000 of the Code, which reads as follows: ~
"Every proprietor joining a wall has the right of making it a wall in common, in whole or in part, by repaying to the owner thereof one half of its value, or one half of the part which he wishes to hold in common, and one half of the value of the ground on which it is built, if the person who has built it has laid the foundation entirely upon his own ground. ’ ’
It is contended by appellees that this section applies only to cases where the owner of a lot has already built a wall on or near his lot line and the adjoining lot is vacant and unimproved, and they cite Cornell v. Bickley, 85 Iowa 219. However this may be, this section does provide that the proprietor of the lot joining the wall may make the wall a wall in common by paying one half of the value of the part of it which he wishes to hold in common, in ease the person who has built has laid the foundation entirely upon his own ground. In such case, the adjoining proprietor "has the right of making it a wall in common in whole or in part by repaying to the owner thereof one half of its value, or one half of the part he wishes to hold in common, and one half of the value of the ground upon which it is built.” This section might have been of some avail to plaintiff if there had been no wall on the line between him and his neighbors at the time he built his wall, and under the circumstances under which the old wall was built, and if plaintiff had laid the foundation of the west wall of his building entirely upon his own ground. But, as shown, neither of these conditions existed. As already
A third method of creating a party wall is under Code Section 2999, which reads:
“Every coproprietor may increase the height of a wall in common at his sole expense, and he shall repair and keep in repair that part of the same above the part held in common. If the wall so held in common cannot support the wall to be raised upon it, one who wishes to have it made higher must rebuild it anew and at his own expense, and the additional thickness of thé wall must be placed entirely on his own land. The person who did not contribute to the heightening of a wall held in common may cause the raised part to . become common by paying one half of the appraised value of raising it, and half the value of the ground occupied by the additional thickness thereof, if any ground was so occupied. ’ ’
“Defendant Goss had the right to increase the height of the wall at his own expense; and in so doing had the right to rebuild the old party wall anew and at his own expense. So long as his neighbor used no more of the reconstructed wall than he did of the old one, he was under no obligation to contribute to the expense of the improvement. But the statute says that when he wishes the'raised part to become a wall in common, he must pay one half the appraised value of raising it, and one half the value of the ground occupied by the additional thickness of the wall. This statute evidently contemplates the rebuilding of an old wall, as part of the expense of raising it, which must be paid for in the first instance by
We think the fact that the insertion of joists in the new wall in substantially the same way as they were inserted in the old wall does not make defendants liable for contribution. As bearing upon this point, see Shaw v. Hitchcock, 119 Mass. 254; Fox v. Mission Free School (Mo.), 25 S. W. 172. These cases arose under a contract between adjoining owners, and not under a statute, but,the provisions of the contracts gave substantially the same right which- our party wall statute gives to adjoining owners. For these reasons, it is our conclusion that plaintiff has not shown himself entitled to recover. Other questions are argued; but, because the point last mentioned is decisive of the case, we ought not to prolong the opinion to discuss at any length the other questions.
The liability to contribute to the 'cost of a party wall becomes enforceable against, and is a personal liability of, the first person who uses the wall, whether he be the original coproprietor of the adjoining lot or his grantee. But where the adjoining lot is held by a lessee of the original owner or his grantee, who is the first person who uses the wall, there is no liability on the part of the lessor, who has made no use of it; either to pay to the one who erected the wall, or to reimburse his lessee, who first availed himself of it. The lessee and he alone is liable (Percival v. Colonial Inv. Co., 140 Iowa 275), and they suggest:
“Supposing the lessee of a long-time lease of a vacant city lot, on the side lines of which great party walls have already been erected, constructs a building on his lot, using his neighbors ’ walls in its construction; can anyone be found to say that his lessor must pay for the walls ? The neighbors might by injunction prevent the lessee from- building into their walls until payment has been made or secured (Code § 3002, and Crapo v. Cameron, 61 Iowa 447); but if once they permitted such a proceeding without payment or the giving of security, their only remedy would be a suit at law against the man who utilized their walls and made them de
We are inclined to this view, but deem it unnecessary to determine this point. We may observe here that, while the old wall which was removed by plaintiff was in a sense permanent, and the new wall is so, the use of the new wall by defendants ’ tenants for a time was not more than or different from their use of the old wall, nor is defendants’ use thereof more than or different from that of their tenants. It will be remembered that there is no basement under defendants’ building on No. 716, and their building is an old one. They may, sometime in the future, desire to build a new building with a basement. When that time comes, and if defendant should make different use of the wall in question, a question may arise which manifestly ought not to be now determined.
We may add, too, that it is clear that, up to the time the plumbing company’s lease expired, there was no liability to plaintiff from defendants for contribution. Suppose a lease of the plumbing company had run 10 years longer, or, say, until 1920; it is clear that there would be no liability for contribution to plaintiff by defendants until then. .So that, under the record in this case, the fact that the lease of the plumbing company expired in 1910, and they then vacated the building, does not alter the situation.
5. It is also contended by appellees that all liability for contribution for that portion of the wall built by plaintiff and now used by defendants as their west wall, if any there was, was adjusted, settled and discharged by the written contract of July 12, 1909, between plaintiff and defendants’ lessee, the plumbing company, which contract was thereafter fully executed and performed, and that plaintiff is not entitled to be paid twice for the same thing. ' This involves a construction of that contract, and we do not feel warranted in consuming further time to discuss that proposition, because other points already decided determine the case, and this is true as to some