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 .
Whether the stipulation, in a party wall agreement,52 that one of the two adjoining owners, parties thereto, upon using a wall built by the other upon the division line, shall pay to the latter part of the cost of the wall, is a covenant which runs with the land, has been the subject of frequent discussion and adjudication.53
As before stated, the grant of an easement at the time of the making of a covenant is regarded as furnishing the "privity of estate" necessary to enable a covenant to run with the land, and such a grant of an easement appears to occur in the case of a party wall agreement. If the wall is regarded as belonging to both the land owners immediately upon its construction, the agreement in effect involves a grant, to take effect upon the construction of the wall, by the non builder to the builder, of an easement to use the former's half of the wall for purposes of support, and also a grant, to take effect subsequently, by the builder to the non builder, of an easement to use the former's half of the wall for purposes of support; in other words, it involves the grant of cross easements of support.54 If the wall is regarded as belonging to
461, 6 L. R. A. 1ll, 43 N. W. 469; Glenn v. Canby, 24 Md. 127; Brewer v. Marshall, 18 N. J. Eq. 337, 19 N. J. Eq. 537, 97 Am. Dec. 679; Wilmurt v. Mcgrane, 16 N. Y. App. Div. 45 N. Y. S. 32; Mas-ury v. Southworth, 9 Ohio St. 348; Louisville & N. R. Co. v. Webster, 106 Tenn. 586, 61 S. W. 1018.
51. Ante, this section, notes 46, 47.
52. Ante, Sec. 356.
53. The authorities on the subject, previous to 1903, are conveniently grouped in a note in 66 L. R. A. at p. 673. The subject is discussed, in a most discriminating manner, with references to the cases by Professor Ralph W. Aigler, in 10 Mich. Law Rev. at p. 186.
54. Roche v. Ullman, 104 I11. 1; King v. Wight, 155 Mass. 444. 29 N. E. 644; Kimm v. Griffin, 67 the landowner who builds it, until the other pays to him part of the cost thereof, there is a grant of cross easements of support, to take effect when such payment is made, and title to part of the wall accordingly vests in the non builder, and there is also a grant, by the non builder to the builder, of an easement to maintain the wall in part on the former's land.55
- Running of benefit. The right to compensation under the agreement for the use of the wall is by some cases considered to appertain to the land, and to pass to a transferee of the proprietor who built the wall,56 while by others it is regarded as personal to such proprietor, so as not to pass to his transferee.57
Minn. 25, 64 Am. St. Rep. 385, 69 N. W. 634.
55. Conduitt v. Ross, 102 Ind. 166; King v. Wight, 155 Mass. 444, 29 N. E. 644.
56. Rugg v. Lemley, 78 Ark. 65, 115 Am. St. Rep. 17, 93 S. W. 570; Eberly v. Behrend, 20 D. C. 215; Ferguson v. Worrall, 31 Ky. Law Rep. 219, 9 L. R. A. (N. S.) 1261, 101 S. W. 966; Savage v. Mason, 3 Cush. (Mass.) 500; King v. Wight, 155 Mass. 444, 29 N. E. 644; Kimm v. Griffin, 67 Minn. 25, 64 Am. St. Rep. 385, 69 N. W. 634; Platt v. Eggleston, 20 Ohio St. 414. See the remarks by Holmes, C. J., in Lincoln v. Burrage, 177 Mass. 378,, 52 L. R. A. 110, 59 N. E. 67, adverse to the view that, while the burden of such a covenant runs with the land, the benefit thereof can be regarded as "in gross" or personal to the covenantee.
In order that the transferee of the builder be able to recover upon the contract to pay part of the cost of the wall upon using it.
The party wall agreement must, it has been held in Massachusetts, be under the seal of the other party, as otherwise the builder acquires, not an easement, but a mere license to build on the other land, and no privity exists to support the running of the covenant. Joy v. Boston Penny Saw Bank, 115 Mass. 60. Even if the agreement is not under seal, the transferee of one tract, by accepting a conveyance binding him to pay a part of the cost of the wall, becomes liable accordingly. Maine v. Cumston, 98 Alass. 317.
57. Kenny v. Mackenzie, 12 Ont. App. 346; Crater v. Mccor-mick, 4 Colo. 197; Conduitt v. Ross. 102 Ind. 166, 26 N. E. 198; Mayer v. Martin, 83 Miss. 322, 35 So. 218 (dictum); Cole v. Hughes. 54 N. Y. 444; Lea's Appeal, 9 Pa. St. 504; Todd v. Stokes, 10 Pa. St. 155; Parsons v. Baltimore Building & Loan Ass'n, 44 W. Va. 335, 67 Am. St. Rep. 769, 29 S. E. 999.
The right to compensation has occasionally been considered to be personal to the builder, not passing with the land, if the ownership of half the wall, by the express terms of the agreement, vests immediately on its construction, contrary to the general rule, in the owner of the other land, though he cannot use it till he pays his share,58 the theory being that, in such case, the promise of the non builder is merely to reimburse the builder in part for his expenditure, the performance of which promise has no effect on the land. In at least one case, in which the title to no part of the wall was regarded as vesting in the non builder until payment was made by him, the right of the transferee of the builder to receive the payment was based on the theory, not that the benefit of the covenant ran with the land, but rather that he was the vendor of part of the wall.59
The fact that an intention appears in the agreement that the covenant shall run with the land, as when it is so stated,60 or even when the agreement is in terms made binding on assigns,61 has occasionally been referred to in support of a decision that in the particular case the benefit passed, while conversely the absence of any such showing of intention has been referred to in support of a contrary decision.62
In New York, it seems, however, that the right to compensation passes with the land if the covenant is general in terms, referring to the possible construction of the wall by either party. Mott v. Oppenheimer, 135 N. Y. 312, 17 L. R. A. 409, 31 N. E. 1097; Sebald v. Mulholland, 155 N Y. 455, 50 N. E. 260; Crawford v. Krollpfeiffer, 195 N. Y. 185, 133 Am. St. Rep. 783, 88 N. E. 29.