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 .
A "party wall'; is a division wall between two buildings belonging to different persons, in which each of such persons has certain rights of use or ownership, or both. The term, as stated in a modern English case,57 has been used in connection with division walls in four different senses. It may refer to (1) a division wall of which, with the land beneath it, the owners of the .two adjoining buildings are tenants in common;58 (2) a wall divided longitudinally into two strips, each of the adjoining owners owning the strip on his side, and having a right to use that strip only;59 (3) a wall located entirely upon the land of one of the adjoining owners, and belonging entirely to him, but subject to an easement in the other to have it maintained as a division wall between the two properties and to use it for purposes of support;60 or (4) a wall divided
56. Mcconnel v. Kibbe, 33 111. 175, 85 Am. Dec. 265; Rhodes v. Mccormaek, 4 Iowa, 375; Graves v. Berdan, 26 N. Y. 501; Harris v. Ryding, 5 Mees. & W. 60.
But the owner of the upper floor has, it seems, no right to demand that the owner of the lower keep it in repair for the purpose of supporting the former. See post. Sec. 370. note 55.
57. Watson v. Gray. 14 Ch. Div. 192, per Fry, J.
58. It is used in this sense in the following cases; Cubitt v. Porter, 8 Barn. & C. 257; Mayfair Property Co. v. Johnston (1894)
1 Ch. 508; Wiltshire v. Sidford, 1 Man. & R. 404; Montgomery v. Trustees of Masonic Hall, 70 Ga. 38. See Sherred v. Cisco, 4 Sanif. (N. Y.) 480.
59. Matts v. Hawkins, 5 Taunt. 20; Murly v. Mcdermott, 8 Adol. & E. 138.
60. Tate v. Fratt. 112 Cal. 613, 44 Pac. 1061; Price v. Mcconnell. 27 111. 255; Molony v. Dixon. 65 Iowa. 136, 54 Am. Rep. 1. 21 N. W. 488; Henry v. Kock, 80 Ky. 391, 44 Am. Rep. 484; Dorsey v. Habersack, 84 Md. 117, 35 Atl. 96; Rogers v. Sinsheimer, 50 N. Y. 646; Nash v. Kemp, 49 How.
Longitudinally in to two strips, each of the adjoining-owners owning the strip on his side only, but having an easement in the other strip for the purposes of the support of his building.61
In England, a division wall is presumed to belong to the first of the above clases.62 In this country, no such presumption has ever been recognized, and a party wall almost invariably belongs to the fourth class mentioned above, except in the few cases in which it belongs to the third class as having been built entirely on the land of one proprietor. For this reason, it seems proper to consider the subject of party walls as a part of the law of easements, though a party wall of the first or second class involves no application of that law.
A wall may be a party wall for part of its height, and, as to the balance, a wall belonging entirely to one of the two adjoining owners, without any easement of support in favor of the other.63
If one of two adjoining owners, in building a wall, places it in part upon the land of the adjoining owner, whether with or without the assent of the latter, the
Pr. (N. Y.) 522; Western Bank's Appeal, 102 Pa. St. 171; Bright v. Allan, 203 Pa. St. 394. 93 Am. St. Rep. 769, 53 Atl. 251; Duns-comb v. Randolph, 107 Tenn. 89, 89 Am. St. Rep. 915, 64 S. W. 21.
61. Graves v Smith, 87 Ala. 450, 13 Am. St. Rep. 60, 5 L. R. A. 298, 6 So. 308; Ingals v. Pla-mondon, 75 Hi. 118; Block v. Isham, 28 Ind. 37, 92 Am. Dec. 287; Hoffman v. Kuhn, 57 Miss. 746, 34 Am. Rep. 491; Shiverich v. R. J. Gunning Co., 58 Neb. 29, 78 N. W. 460; Partridge v. Gilbert, 15 N. Y. 601, 69 Am. Dec. 632; Hendricks v. Stark, 37 N. Y. 106, 93 Am. Dec. 549; Brocks v.
Curtis, 50 N. Y. 639, 10 Am. Rep. 545; Odd Fellows' Hall Ass'n of Portland v. Hegele, 24 Ore. 16, 32 Pac. 679; Sanders v. Martin, 2 Lea (Tenn.) 213, 31 Am. Rep. 598; Davenhauer v. Devine, 51 Tex. 480, 32 Am. Rep. 627; And-rae v. Haseltine, 58 Wis. 395, 46 Am. Rep. 635, 17 N. W. 18.
62. Cubitt v. Porter, 8 Barn. & C. 257; Watson v. Gray, 14 Ch. Div. 192.
63. Weston v. Arnold, L .R. 8 Ch. 1084; Price v. Mcconnell, 27 111. 255; Rinrgold Lodge v. Do Kalb Lodge, 157 Ky. 203, 162 S. W. 1111; Barry v. Edlavitch, 84 Md, 95, 33 L. R. A. 294, 35 Atl. 170.
2 R..p. - 4 courts will not ordinarily recognize any liability on the part of the latter, by reason of his subsequent user of the wall, to the builder.64 A promise by him to pay for such use as lie may make of the wall may, however, it has been decided, be inferred from the fact of his acquiescence in its construction by the other in part on his land, with knowledge that the latter expects payment for its use,65 and there are occasional decisions and suggestions to be found that, without reference to the circumstances under which the wall was erected, the non builder is bound to contribute to the cost of its erection upon making use thereof.66 There is frequently an ex64. Antimarchi v. Russell, 63 Ala. 356, 35 Am. Rep. 40; Preiss v. Parker, 67 Ala. 500; Orman v. Day, 5 Fla. 385: Huck v. Flentye, 80 111. 258; Long v. Smyre, 87 Kan. 182, 123 Pac. 765; Wiikin.s v. Jewett, 139 Mass. 29, 29 N. E. 214; Allen v. Evans, 161 Mass. 485, 37 N. E. 571; Sherred v. Cisco, 4 Sandf. (N. Y.) 480; Grif-fin v. Sansom, 31 Tex. Civ. App. 560, 72 S. W. 864; List v. Horn-brook, 2 W. Va. 340. See 21 Harv. Law Rev. at p. 222.
65. Huck v. Flentye. 80 111. 258; Wickersham v. Orr, 9 Iowa. 253, 74 Am. Dec. 348; Day v. Caton, 119 Mass. 513, 20 Am. Rep. 347; Griffin v. Sansum, 31 Tex. Civ. App. 560, 72 S. W. 864. See Bank of Escondido v. Thomas. - Cal. - , 41 Pac. 462; Zeinin-ger v. Schnitzler, 48 Kan. 63, 28 Pac. 1007.
It has been decided that the fact that the wall, though built on A's land, projected over B's land, precluded A from obtaining an injunction against the use of the wall by B. Guttenberger v. Woods, 51 Cal. 523. On the other hand it was held that the fact that the foundation of tha wall extended under ground into B's land, all the wall above the ground being on A's land, gave B no right to use the wall without making compensation. Tru-lock v. Parse. 83 Ark. 149. 11 L. R. A. N. S. 924, 103 S. W. 166.
66. Zugenbuhler v. Gilliam, 3 Iowa, 371; Spaulding v. Grundy, 31 Ky. Law Rep. 951, 104 S. W. 293; Howze v. Whitehead. 93 Miss. 578, 46 So. 401; Reid v. King, 158 N. C. 85, 73 S. E. 168; Sauders v. Martin, 2 Lea (Teun.) 213.
The mere fact that one. In contructing a building extending to the edge of his land, constructs no wall along such edge, utilizing the wall of his neighbor for protection on that side, without however in any way cutting or breaking into it, does not give the neighbor a right of action. Nolan v. Mendere, 77 Tex. 565, 19 Am. St. Rep. 801, 14 S. W. 167. See Bisquay v. Jennelot, 10 Ala.
Press agreement to this effect,67 and occasionally a statute imposes a pecuniary liability upon one making use of a wall placed partly on his land.67a construction of the fence, but also in its maintenance and repair,72 and neither can, without the consent of the other, remove any part of the fence, except, in some states, at certain periods of the year, or after a prescribed notice to the other proprietor.73