This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
It has been decided in one case that when a party wall is erected one-half on each of the two adjoining properties, one proprietor can extend his beams into the wall onlv so far as the limits of his own laud.21 and a there are occasional intimations to this effect in other cases.22 There cannot well be, however, any absolute rule to this effect. A could no doubt grant to B in express terms the privilege of extending his beams entirely through the wall, and in any case the extent to which beams can be inserted is a question of the construction of the "party wall agreement." that is. of the grant of the easement, in each particular case, the usage of builders in that community being a weighty consideration in this connection. If the wall is entirely on the land of one proprietor, the adjoining proprietor, having a party wall easement therein, has almost necessarily the privilege of extending beams in the serted in Wallis v. First Nat. Bank of Racine. 155 Wis. 306, 143 N. W.670
19a. Graves v. Smith. 87 Ala. 450, 13 Am. St. Rep. 60; Allen v. Evans. 161 Mass. 485. See Field v Leiter, 118 111. 17.
For cases construing a conti as requiring contribution to the cost of such an addition only for a building subsequently erected, see Shaw v. Hitchcock, 119 Mass 254; Fox v. Mission Free School. 120 Mo. 349. 25 S. W. 172. And see Younker v. Mk'utchen, 177
Iowa, 634. L. R. A 1917B 159 X. W. 441 (statute).
19b. Post, this section. I 31.
Graves v. Smith. 87 Ala. 13 Am. St. Rep. 60. 6 S 304; Dauenhauer v. Devine, 5l Tex 480, 32 Am. Rep. 627.
21. Lederer & Strauss v. C onial Investment Co.. 130 Iov 157, 8 Ann. Cas. 317, 106 N. W.
22. Mcminn v. Karter, 116 Ala
390, 22 So 17; Walker v.stetson.
162 Mass. 86, 38 N. E. 18.
2 R. P.-10
* wall beyond the limits of his own land, and there is no legal objection to his having that privilege when the wall is partially on his own land.
One of the two adjoining owners cannot ordinarily remove or impair the party wall,23 except as such removal or impairment is merely temporary and for the purpose of strengthening the wall or substituting therefor another wall more suitable for his purposes.24 Even in the latter case he is liable for any damage caused to the other by his failure properly to support and protect the latter's property during the operation,25 or, if it is left to the other to protect his property, the latter is entitled to be indemnified the necessary expenses of such protection.26 It does not seem that one altering a party wall by raising it or otherwise is absolutely liable for any injury which may result to the other in the course of the work. He is merely bound to use diligence to prevent such injury.27
23. Nippert v. Warneke, 128 Cal. 501, 61 Pac. 270; Montgomery v. Trustees of Masonic Hall, 70 Ga. 38; Senile v. Brokhahus, 80 N. Y. 619; Briggs v. Klosse, 5 Ind. App. 129, 51 Am. St. Rep. 238, 31 N. E. 208; Baugh-er v. Wilkins, 16 Md. 35, 77 Am. Dec. 279. But see Hieatt v. Morris, 10 Ohio St. 523, 78 Am. Dec. 280. Clemens v. Speed, 93 Ky. 284, 19 L. R. A. 240, 19 S. W. 660; Williamson Inv. Co. v. Williamson, 96 Wash. 529, 165 Pac. 385.
24. Eno v Del Vecchio, 4 Duer (N. Y.) 53, 6 Duer, 17; Putzel v. Drovers & M. Nat. Bank, 78 Md. 349, 44 Am. St. Rep. 298, 22 L. R. A. 632, 28 Atl. 276; Lexington Lodge v. Beal, 94 Miss. 521, 49 So. 833; Mann v. Riegler, 33 Ky. L. Rep. 774, I11 S. W. 300;
Bellenot v. Laube, 104 Va. 842, 52 S. E. 698. That he cannot substitute another wall, see Partridge v. Lyon, 67 Hun, 29, 21 N. Y. Supp. 848.
In some states the statute authorizes him to make alterations in the wall for his own purposes. Fowler v Saks, 7 Mackey (D. C.) 570, 7 L. R. A. 649; Haine v. Merrick, 41 La. Ann. 194. Evans v. Jayne, 23 Pa. 34.
25. Eno v. Del Vecchio, 4 Duer (N. Y.) 53, 6 Duer, 17.
26. Putzel v. Drovers & M. Nat. Bank, 78 Md. 349, 44 Am. St. Rep. 298, 22 L. R. A. 632, 28 Atl. 276.
27. Negus v. Becker, 143 N. Y 303, 25 L. R. A. 667, 42 Am. St. Rep. 68, 38 N. E. 290, explaining Brooks v. Curtis, 50 N. Y. 639,
If the wall is in a ruinous or unsafe condition, one proprietor may repair it or replace it by a new wall, and be is not liable for the cost of protecting the adjoining property during the prosecution of the work, or for any loss necessarily incident thereto, as of business or rent,28 though he is liable for any injury caused by negligence in the doing of the work.29
There is at least one. decision to the effect that, if the party wall becomes unsafe or ruinous, it may be rebuilt by one of the adjoining owners, and the other will be compelled to pay part of the cost.30
A grant of the privilege of placing on the grantor's land a wall to be used as a party wall does not ordinarily enable the grantee to place thereon a wall with openings, such as windows, therein, the expression party wall meaning prima facie a solid wall.31 A right to have openings in the wall may, however, be included in the grant,32 or rather, as the owner of the land may grant the privilege of placing or maintaining
10 Am. Rep. 545; Lexington. Lodge v. Beal, 94 Miss. 521, 49 So. 833. See Putzel v. Drovers & M. Nat. Bank, 78 Md. 349, 44 Am. St. Rep. 298, 22 L. R. A. 632, 28 Atl. 276, and Heine v. Merrick, 41 La. Ann. 194, 5 So. 760, 6 So. 637. Compare Fleming v. Cohen, 186 Mass. 323, 104 Am. St. Rep. 572, 71 N. E. 563.
28. Partridge v. Gilbert, 15 N. Y. 601, 69 Am. Dec. 632; Maypole v. Forsyth, 44 111. App. 494; Craw-shaw v. Sumner, 56 Mo. 517; Hoffman v. Kuhn, 57 Miss. 746, 34 Am. Rep. 491.
29. Negus v. Becker, 143 N. Y 303; Crawshaw v. Sumner, 56 Mo. 517.
30. Campbell v. Mesnr, 4 Johns. Ch. (N. Y.) 334. See Howze v. Whitehead, 93 Miss. 578, 46 So.
401; Bellenot v. Laube's Ex'r, 101 Va. 842, 52 S. E. 698; Sanders v. Martin, 2 Lea (Tenn.) 213.
31. Bartley v. Spaulding, 21 Dist. Col. 47; Kuh v. O'reilly, 261 111. 437, 104 N. E. 5; Bonney v. Green wood, 96 Me. 335, 52 Atl. 786; Coggins & Owens v. Carey, 106 Md. 204, 10 L. R. A. (N. S.) 1191, 124 Am. St. Rep. 468, 66 Atl. 673; Normille v. Gill, 159 Mass. 427, 38 Am. St. Rep. 441, 34 N. E. 94; Harber v. Evans, 101 Mo. 661, 10 L. R. A. 41, 20 Am. St. Rep. 646, 14 S. W. 750; De Baun v. Moore, 167 N. Y. 598, 60 N. E. 1110; Cutting v. Stokes, 72 Hun, (N. Y.) 376, 25 N. Y. Supp. 365; Hoklen v. Tidwell, 37 Okla. 553, 133 Pac. 54. Dauenhauer v. Devine, 51 Tex. 480, 32 Am. Rep. 627.
1344 Reat Property. [Sec. 368 a solid wall on his land, so he may grant the privilege of placing or maintaining thereon a wall with openings.33 It has been said that the right to have openings in a partition wall may be acquired by prescription,34 but this appears to be questionable.35
The grant of the privilege of placing or maintaining a wall in part on one's land may expressly include a right to have flues therein.30 Or there may be an implied grant of such a right based on the existence of the flues before the severance of ownership of the two properties.37 Whether the grant of the privilege of erecting a wall, or of utilizing it, for party wall purposes, involves a right to maintain flues therein, is a question of construction, in the solution of which the practice of builders in that community as regards the placing of flues in party walls is entitled to consideration.38