National Commercial Bank v. Gray

PARKER, J.

The controversy between plaintiff and defendants, who are adjoining lot owners, relates primarily to the location of a boundary line. Defendants say that the line extends through the center of the wall, which has been for many years used in precisely the same manner as are party walls; the timbers of the buildings on either side resting in and being supported by it. Plaintiff, admitting that defendants’ user of the wall has been so long continued as to have created an easement, which secures to him the right to such use as he now makes of the wall, insists that it is not a party wall, but wholly on the lands of the plaintiff, and for that reason it cannot be interfered with in any action it may see ñt to take with reference to the wall, so long as defendants are not interfered with in the enjoyment of their easement. It seems that prior to about 1850 plaintiff’s building was 3 stories high and 72 feet deep. Defendants’ building was 3 stories high also, but only about 50 feet deep. Some time in 1850 plaintiff raised its building, running up the wall, which has been used as an easterly and westerly wall for plaintiff’s and defendants’ building, respectively, to the requisite height, and inserted therein the beams for the added stories. About the year 1874 the defendants extended this building so as to make its total depth 72 feet, and raised it so much that they were obliged to build up the wall between them and plaintiff to a height of about 15 feet above where plaintiff had built it in 1850. In 1887 plaintiff again raised its building, using the 15 feet of wall which defendants had added in 1874 in part to support the timbers of the added stories, and running up such wall about 20 feet more, making the top of the wall nearly 20 feet above the roof of defendants’ building. In the erection of the wall plaintiff left five spaces for windows. Defendants then closed such window spaces on their side, and for a depth of six inches, by brickwork. Thereafter this action was begun to restrain the defendants from interfering with the window- spaces, which resulted in a judgment for the defendants.

The determination of the learned trial judge seems well founded. It is true that plaintiff’s deed, assuming its westerly boundary line to be correctly located, calls for a frontage that included the entire wall, instead of one-half of it; and, as there is no record of conveyance from plaintiff or his predecessors in title of the six inches in controversy, plaintiff insists that its right to it cannot be questioned. Defendants’ contention is that in 1815 plaintiff’s and defendants’ predecessors in title located the boundary line in the “center of the brickwork of said wall,” and that from that time until the commencement of this action, a period of about 75 years, such practical location of the line was acquiesced in by the parties to the original location and their grantees. If it is legally established in the record before us that the facts are as defendants contend in such respect, then the case is clearly brought within the settled rule which forbids the disturbance of a practical location which has been acquiesced in for a long series of years,—a rule adopted as one of repose, and which rests upon the same reason as the statute prohibiting the disturbance of an adverse possession which has continued for 20 years. Baldwin v. Brown, 16 N. Y. 359; Reed v. Farr, 35 N. Y. 113; Avery v. Woolen Co., 82 N. Y. 583. We are thus brought to a consideration of the evidence introduced for the purpose of establishing a practical location. The defendants put in evidence a writing under seal, which was neither acknowledged nor recorded, of which the following is a copy:

“Whereas, the boundary line which divides the lot o£ ground on the south side of State street, owned by Joseph Alexander and his wife, Ann Alexander, from the lot of ground owned by the heirs of Henry Hogan, deceased, is not precisely ascertained and known; and whereas, the said Joseph Alexander and Ann Alexander are about erecting a building on their said lot of ground, which renders it desirable that the said boundary line should be settled: Now, therefore, to the end that the said boundary line may be amicably ascertained, settled, and established, the said Joseph Alexander and Ann Alexander, for themselves, their heirs, executors, administrators, and assigns, of the first part, and Nelly Hogan and William Brown, Dorothy Brown and Eleanor Brown, heirs of Henry Hogan and Martina Brown, deceased, which said Nelly Hogan, Henry Hogan, and Martina Brown were and are the heirs of William Hogan, deceased, of the second part, do enter into the following articles of agreement; that is to say: First. The said party of the first part shall have full liberty to place the west wall of the building, which they are now erecting, as near to the east wall of the building, now occupied by the party of the second part, as they shall or may choose to do, and to build and finish the same in any manner they please, without molestation or hindrance from the said party of the second part, or any person or persons by their direction, or claiming under them. Second. The center of the brickwork of the said wall, when so built by the party of the first part at their own expense, and a corresponding line drawn to the south bounds of said lots, shall forever hereafter be allowed and acknowledged by both the parties to this agreement, and all persons claiming under, to be the true division line between the aforesaid lots of ground. Third. The said party of the second part, or their heirs and assigns, shall have full liberty, whenever they may choose to erect a building on their said lot of ground, to join the front and rear walls of such building to the wall built as aforesaid by the party of the first part, and to fasten thereto, and finish thereon, in any manner they may choose to do; also to build upon and raise higher the said division wall, or extend the same farther south, so as to suit their own convenience in building, but at their own expense, without molestation or hindrance from the said party of the first part, or any person or persons by their directions, or claiming under them: provided, however, that the said party of the second part shall not break down any part of said division wall, or in any manner unnecessarily mar or .injure the same. Fourth. Each of the parties to this agreement shall keep in repair their own half of the said division wall, and neither party, or any person or persons by their direction, or claiming under them, shall have liberty to pull down or demolish any part of the said division wall without consent of the other first had and obtained.

“In witness whereof the parties to this agreement have severally set their hands and seals this-day of May, one thousand eight hundred and fifteen, to these presents.

“Joseph Alexander. William Brown.

“Ann Alexander Dorothy Brown.

“Nelly Hogan. Eleanor Brown.

“The words ‘or their heirs'and assigns,’ in the first line of the third article, were interlined before execution.

“Signed, sealed, and delivered in presence of “James La Grange.

“Peter Lansing, Jr.”

The plaintiff in due season objected to the introduction of the agreement, and the exception taken to the ruling admitting it will be first considered. When offered, the testimony showed that the signature of plaintiff’s grantor to the agreement of 1815 was in his handwriting; that each of the adjoining owners entered into possession of the half of the wall next adjoining him by inserting therein the necessary timbers for his building. The agreement offered was found by defendants among their muniments of title in 1874 or 1875; and plaintiff about the same time found a duplicate thereof among the deeds and papers which it had received at the time of taking title. Under the circumstances proven it was clearly not error to receive in evidence as an ancient writing, and without proof of execution, this agreement. which purports to have been executed more than 75 years before that time. The agreement was ample to support the finding that the parties undertook to practically locate the boundary line between them in the center of the wall shortly thereafter constructed. And this location was not questioned, so far as the record discloses, from 1815 down to 1887; on the contrary, there are positive acts of acquiescence. Plaintiff’s remote grantor who executed the agreement took possession of only six inches of the wall, which he made use of to support the beams of the building erected by him. Defendants’ grantor thereafter erected a building, at which time he took possession of one-half of the wall next to him, in the same manner as the other party to the agreement had done. In 1850 plaintiff raised its building, and for that purpose ran the wall up several feet, but only took possession of one-half of the wall. About 24 years later defendants remodeled their building, increasing the height of each of the several stories on adding an ■extra story, in the doing of which they extended the division wall some 15 feet higher than it was before; and when this was ■done, if not before, plaintiff had knowledge of the existence of the agreement of 1815. The defendants at this time cut off six inches from the face of the partition wall, and rebuilt it; their purpose being to have the portion of it which they claimed conform in appearance to the rest of the building front. When plaintiff increased the height of its building in 1887, it claimed, the ■right to use the half of the wall on defendants’ side as well as its own, but then about 72 years had elapsed since the attempt of the owners to locate the division line, and the lapse of time, considered in connection with the facts referred to, fully establish a legal acquiescence in the location originally made. Neither the parties to the original location nor their successor in title can now be heard to deny that such line constitutes the true boundary. The agreement establishes that the wall is a party wall, and, if the views so far expressed are correct, each owns in severalty so much of the wall as stands upon his lot, subject to the easement of the other owner for its support, and the equal use thereof as an exterior wall of his building. Partridge v. Gilbert, 15 N. Y. 601. No other use of the adjoining owner’s portion of the party wall is permissible. Windows have no place in a party ■wall. Nash v. Kemp, 12 Hun, 592; Dauenhauer v. Devine, 51 Tex. 489; St. John v. Sweeney, 59 How. Pr. 175; Sweeney v. St. John, 28 Hun, 634. Defendants were therefore doing as they lawfully might in filling up the openings on their half of the party wall.

The judgment should be affirmed.

PUTNAM, J., concurs.