This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Whether contracts to erect and maintain party walls and fences are contracts within the statute of frauds depends on whether they are regarded as contracts creating easements or as contracts for work and labor. If a contract provides for the erection, maintenance and permanent use of a party wall, it is looked upon as a contract creating an easement, and within the statute of frauds.1 It has been doubted whether a contract by the owner of adjoining realty to pay one-half of the cost of a party wall built on the division line, was within the statute at all.2 If the oral contract imposes no greater liability, and a liability in no way different from that imposed by statute, such oral contract is enforceable.3 An oral agreement with reference to the permanent maintenance of a division fence;4 as a contract whereby A releases B from his liability for one-half of the cost of maintaining such fence, and B releases to A his interest therein5 is within the statute; while a contract imposing a personal liability merely, as an agreement by grantee in part consideration of the conveyance to build a fence between the land conveyed and the land of grantor,6 is not within the statute.
18 Hall v. Solomon, 61 Conn. 476; 29 Am. St. Rep. 218; 23 Atl. 876; Leinau v. Smart, 11 Humph. (Tenn.) 308.
1 Tillis v. Treadwell, 117 Ala. 445; 22 So. 983; Price v. Lien, 84 la. 590; 51 X. W. 52; Rice v. Roberts. 24 Wis. 461; 1 Am. Rep. 195.
2Stuht v. Sweesy, 48 Neb. 767; 67 N. W. 748. (After the wall is constructed under such contract, a new promise to pay one-half of the cost is held enforceable.) 3 Swift v. Calnan, 102 la. 206; 63
Am. St. Rep. 443; 37 L. R. A. 462;
71 N. W. 233.
4Rudisill v. Cross, 54 Ark. 519;
26 Am. St. Rep. 57; 16 S. W. 575;
Knox v. Tucker, 48 Me. 373; 77 Am.
Dec. 233; Kellogg v. Robinson, 6 Vt.
276; 27 Am. Dec. 550.
5Rudisill v. Cross. 54 Ark. 519;
26 Am. St. Rep. 57; 16 S. W. 575.