We have endeavored to take such a view of this cause, as to sustain the plaintiff in court, and in the action as it now stands, without examining it too strictly, give the relief which is finally indicated in this opinion. It is too manifestly an action for a trespass, to permit of its being called a bill in chancery, and dealt with accordingly. Neither can the injunction be sustained, for the want of all ■ those averments which are requisite to an injunction in a case of trespass. Cowles v. Shaw, 2 Iowa, 496. Again, the judge or court trying the cause instead of a jury, has found the plaintiff’s building to be upon the defendants’ lot. This fact suggests the question, whether an action in the nature of trespass, can be sustained for the acts here done by the defendants ? and we are inclined to think that it cannot. The case does not profess to have brought all the evidence to this court; nor is it intended probably, that we should review the testimony, as upon a motion for a new trial, and it is not our province to do so. We must take the facts as found and reported by the court below, and not the evidence upon which the facts rest.
It is very likely that the plaintiff’s wall may have been erectedbeyond his line through mistake; for it is well known that hardly any two surveys will precisely agree, and give a town lot the same exact locality or boundaries. This difficulty is experienced where the survey must be accurate, even to an inch and less. Perhaps no two of the surveyors who were witnesses in this cause, concurred entirely. As the result of all the survey and testimony, the court find that the plaintiff’s house is on the defendants’ lot two inches in the front, and six inches and three-quarters in the rear. But it *395is immaterial, we conceive, whether the building was so placed through mistake or intentionally. It is probable that the owner of lot 72, would have a right so to place it. This subject matter is referrable to the head of urban servitudes or easements. And under this view of it, there was no wrong in placing the wall midway on the line. And on the other hand, the defendants cannot gratuitously appropriate it. Neither Ames nor his lessees, have sought to have the wall removed. They build into it — they use it — and in so doing, they make it a party wall, and become liable to contribute to its cost, if the plaintiff should file his petition based upon these grounds. Bouvier (2 Inst. 178) says, where only one of the owners of two adjoining lots, wishes to build, he has a right to build the wall of the usual thickness, partly upon his own ground, and partly upon the adjoining estate. In this case, where,the other owner is desirous of building,» he may use so much of such party wall as he may want, by paying one-half of its value to the first builder, and then they are joint owners of so much of such party wall. And see Bouv. Diet. tit. Party "Wall; 8 Kent, 435; 1 Dali. 367. The act of January 24, 1855, (pamphlet laws, 130,) is based upon the law, as above briefly expressed, and is probably but a declaration of the common law on the subject. Thus it seems unnecessary to spend time in the midst of pressing duties, to determine whether an action as for a trespass, would or would not lie in any imaginable case; but we have thought it more conducive to the interest of the parties, to venture upon these suggestions, as probably tending to the peaceful settlement of a matter concerning which there is very little cause for litigation. The judgment of the District Court will be affirmed.
After the above opinion was filed, a petition for a rehearing was presented, upon the ground that, the judgment rendered would constitute a bar to a further proceeding. That judgment being regarded as one of non-suit only, it is not considered as presenting the difficulty suggested.