In Eno v. Del Vecchio 4 Duers,53, it was held that the owner on one side of a party-wall might, for the purpose of improving his own premises, underpin the foundation of the wall and sink it deeper if he could do so without injury to the building on the adjoining lot; also, that he might increase, within the limits of his own lot, the thickness, length or height of the wall, if he could do so without injury to the building on the adjoining lot. Whether he could raise the whole party-wall higher or whether any additional elevation must be wholly within the limits of his own lot, the court expressly declined to decide.
We think that the right of either of the adjacent owners to increase the height of a party-wall, when it can be done without injury to the adjoining building, and the wall is clearly of sufficient strength , to safely bear the addition, is necessarily included in the easement. No adjudication adverse to that right has been referred to by counsel nor found by us. The party making the addition does it at his peril; and if injury results he is liable for all damages. He must insure the safety of the operation. But when safe it should be allowed. The wall is devoted to the purpose of being used for the common benefit of both tenants. In Hendricks v. Stark, 37 N Y. 106, it is held that a party-wall is in no sense a legal encumbrance upon either property; that the mutual easements of adjoining proprietors in such walls are a mutual benefit to each, and not a burden, but a valuable appurtenant which passes with the title to the property. This is undoubtedly correct, provided each party is allowed to derive from the wall all the benefit which it is capable of affording without detriment to the other. But if, though of sufficient strength, it cannot be used by either party in increasing the height of his building, it may prove a serious injury to the property of one desiring to make that improvement; an improvement which is very usual and often very necessary in crowded cities. The fairer view, and the one generally adopted in legislative provisions on the subject in this and other countries, is to treat a party-wall as a structure for the common benefit and convenience of both of the tenements which it separates, and to permit either party to make any use of it which he may require, either by deepening the foundation or increasing the height, so far as it can be done without injury to the other. The party making the change, when not required for purposes of repair, is absolutely responsible for any damage which it occasions (Eno v. Del Vecckio, 6 Duer, 17); but in so far as he can use the wall in the improvement of his own property, without injury to the wall or the adjoining property, there is no good reason why he should not be permitted to do so.2
d. Easements in water.
83 New York, 400. - 1881. [Reported herein at p. 116.]
Shepley, J., in
25 MainE. 209. - 1845.
[Reported herein at p. 120.]
40 New York, 191. - 1869. [Reported herein at p. 121.]2
I Division or "line" fences resemble "party walls" in some respects. Their construction and maintenance are usually regulated by statute, however. For the New York statutes, see "The Town Law," §§100-108. - Ed.
e. Rights to flow lands.
51 New Hampshire, 504. - 1872. [Reported herein at p. 1.]
91 Indiana, 134. - 1883.
[Reported herein at p. 141.]
f. Easements of light and air.
The Chancellor in
2 New Jersey Equity, 57. - 1838.
The object of this bill is to restrain the defendant from obstructing the light and air of a building belonging to the complainants. When the bill was presented, I granted the injunction with much reluctance, without notice; and I did so from the pressing character of the case, as the defendant was actually at work erecting the very obstruction complained of I am now furnished with the briefs of the counsel of the respective parties, on a motion to dissolve the injunction upon the case made by the bill, and shall consider the same without prejudice, as if the propriety of the interference of the court was now, for the first time, considered. I am not aware that this question has ever been decided in New Jersey, and it has caused me some anxiety to determine, not so much what views have been taken by other judges and in other countries, of the question, but what should be the course of decision in this State, and particularly in a country under a rapidly increasing state of improvement. It would seem unreasonable, that in those places where land is cheap, and the country thinly settled, a party, after being permitted to build his house and place his windows on the side adjoining the open field of another man, and especially after so long a possession as to presume a grant for that purpose, should have them obstructed by the erection of a wall or another building, when perhaps a little accommodation, by placing the new building a few feet further off, might work no injury to anybody; and yet in populous cities, where land is very valuable, and it is the constant practice to place buildings side by side, the enforcement of the same rule might work great inconvenience and injustice. The difficulty, therefore, is to lay down one rule for all cases. Nor will it do to leave all parties to their remedy at law. That would be shutting up the doors of a court of equity, when the exercise of its legitimate powers is most needed. Cases might arise where damages would be no adequate compensation for the injury sustained, and the party unable to respond in damages at all.