Harrison v. Union National Bank

Per Curiam,

This is an appeal from an order dissolving a preliminary injunction restraining the defendants from taking down a wall alleged by the plaintiff to be a party wall. Prior to the hearing of the motion the defendant filed an answer alleging that the wall is located entirely on its land, and there is no distinct averment in the bill to the contrary. Nor, we may add, does the testimony given on the hearing of the motion show the contrary. The learned judge was clearly right in disposing of the motion upon the assumption that the wall is entirely upon the defendant’s land. Under the pleadings and proofs this fact was not in dispute. This being so, the question for decision was whether the land of defendant is subject to an easement or right in the plaintiff to have the wall maintained as a support for the floor beams of her house, or as an enclosure for that side of her house. This right or easement, if it exists, depends wholly upon prescription. There is not a spark of evidence of an express grant, nor, on the other hand, is there any evidence that the use which the plaintiff and her predecessors in title made of the wall as a support for the floors of her house was merely permissive and not adverse. If the suit were between the owners of the buildings at the time the plaintiff’s building was erected, it may be conceded for present purposes (but without deciding the point), that the evidence as to the user would be sufficient to cast on the defendant the burden of proving that it was under' some license, indulgence or special contract inconsistent with a claim of right by the other party. For, as the learned judge says, McLaughlin, the original owner of the defendant’s building, must have known of the acts of Bowes, the original owner of the plaintiff’s building, and of the use he made of the wall when he erected his building. But the title to the McLaughlin lot has changed hands twice since the erection of the plaintiff’s building, and, before the last change, material alterations in the outer appearances of the structures were made. The question then arises whether or not the subsequent purchasers had notice of the alleged easement, that is, whether it was so apparent and open to ordinary observation that a purchaser exercising his natural faculties could see that the estate he was about to purchase was burdened with an easement. Without discussing in detail the evidence bearing upon that question we conclude that as the case is now presented the plaintiff’s right is not so clear as to warrant us in reversing the learned judge’s' findings of fact and reinstating the injunction. As the case must go to a final hearing this is all that need be said upon that matter at this time. It is a mistake to suppose that the dissolution of the injunction was a final adjudication that this is not a party wall, and was in effect a permission to the defendant to proceed with its demolition. If, upon final hearing, the plaintiff’s legal right and her right to equitable relief be clearly established the court will not be powerless to give such redress as the pleadings and evidence then warrant.

The decree is affirmed and the appeal dismissed at the costs of the appellant.