The plaintiff alleges that the defendant is obstructing him in the exercise of a legal right — that of erecting one half of the wall of his building upon the property of the defendant which is contiguous to his own — a right accorded to him by Art. 671 of the Code. The question which is submitted to our consideration is, whether the Court below was right in refusing to permit the plaintiffs to give parol evidence of an agreement on the part of the defendant that plaintilf should put up an iron pillar that would occupy nine inches of the front of defendant’s property on the street, he himself having determined to build a house, with granite pillars on the front of the basement story.
We are of opinion that the Art. 671 has not taken away from the owners of ground lots “in the cities, towns or suburbs of this State ” the right of finishing the whole front of the houses that they may erect upon their lots, in such manner as their taste may dictate. The wall spoken of in that article is the side *50wall, which supports equally the buildings erected on both sides of a line dividing the property of two individuals. The name given to the wall in the French text of the Code, “ mur mitoyen,” expresses that idea clearly. Toullier thus defines Umur mitoyen“Celuiqui est place sur les extrimites de deux heritages contiguos, qui est assis moitié sur le terrain de l’un des proprié-taires, et moitié sur le terrain do l’autro.” The article 672 of our Code also confirms this interpretation, “If the neighbor bo willing to contribute, &c. then this wall is a wall in common between the proprietors.”
Indeed the very offer of proof of an agreement on the subject, concedes that the article of the Code, unassisted, would not suffice to establish the right claimed by plaintiff. There is no dispute about the other facts in the cause. And as to this fact of an agreement to erect iron columns in front of the property of defendant, it is not the proof, but the kind of proof (parol) that is objected to. Upon a mature consideration of the law and the facts, I consider, with the Judge below, that no proof should be admitted of such an agreement, but such proof as may legally establish the title to real estate. Any pact which restrains the owner’s control or enjoyment of his property, is to some extent an alienation of his property ; and when the subject matter is real estate, must be evidenced in the mode required for the alienation of real estate — by written proof. The Code Napoleon does not contain an article corresponding to our 671st article. But the article 661 of the French Code is identical with our 680th article: “ Tout propriétaire joignant un mur,” &c. That article gives an adjacent proprietor the right of forcing the owner of a wall contiguous to his line, to sell the half of such wall. Toullier, vol. 3d, page 113, paragraph 196, in commenting the article 661, says: “L’obligation imposée á tout voisin de vendre la mitoyennoté du mur contigu a un autre héritage, est contrairo á la loi de la propriété, en ce qu’elle force un propriétaire á aliéner.” The principal difference between the article 661 of the French Code (our 680th article) and the article 671 of our Code is, that the former imposes the obligation of alienation for a compensation; the latter that of alienation without any compensation. It may, therefore be viewed as still more contrary to the law of property than the other; and no good reason is perceived why agreements to extend such alienation beyond the letter of the Code, should be exempted from the formalities required for alienations of real estate generally.
Slidell, C. J., and Campbell, J., concurring.It is therefore adjudged and decreed, that the judgment of the District Court be affirmed, with costs.
Slidell, C. J.I think the parol evidence was properly excluded, for the reasons given by the District Judge.
The claim for damages is very vaguely made; the particulars of damage arc not stated. That subject does not appear to have been considered at the trial, and it seems unnecessary now to decide whether, in an action for damages, properly brought by Dunean, for indemnity for any injury sustained in consequence of Labowme's breach of the alleged agreement, parol evidence of that agreement would be admissible.
The right to bring such action was reserved by the judgment below.
I think the judgment should be affirmed.
Ogden, J.On the trial of this cause in the Court below, the plaintiff offered in evidence a plan of the buildings erected by him, on Carondelet street, as originally prepared for the use of the architect, and then offered by parol ev i-*51dence to show, that at the special instance and request of the defendant, La-bouisse, who was the proprietor of the adjoining lot, the plan was changed and the buildings erected according' to another plan approved by Labouisse, by which an iron column with three sides was erected at the projection of the partition wall on the street, so as to show a front and a face equally on the lots of both proprietors. The Court below rejected the evidence, on the ground that the tendency of it was to affect the title to real estate, and that the law requires such proof to be in writing. It is undoubtedly true that when written proof is required by law, parol evidence cannot be admitted to supersede its use, and the only question is whether the principle is applicable to the facts of this case. The plaintiff, being the first to build on his lots, had a right by law to rest one-half of his wall on his neighbor’s lot, provided stones or bricks were used as high as the first story, and provided the whole thickness of the wall, not including the plastering, should not exceed eighteen inches. If the plaintiff had attempted to build the partition wall with other materials than stone or brick, the defendant could have enjoined him from so doing. The iron column about which the parties are contending, rests equally on the respective fronts of their lots, and whether it is to be considered as forming part of the partition wall or not it is not material to consider. We agree with the Judge of the Court below, that each proprietor has a right to the display of his whole front according to his own taste and judgment, and if the defendant is compelled to have an iron front instead of a granite front to his building which he desires to be put up, it does affect the enjoyment of his right in real estate. If the plaintiff was endeavoring to enforce the execution of an agreement to that effect on the part of the defendant and to use one-half of the iron column on his neighbor’s lot, wo would not consider parol evidence competent to establish such a right; but the agreement, if ever made, was executed; the column has been erected; it is a construction made on the soil belonging to the defendant. Art. 498 of the Code declares that all the constructions made on or within the soil are supposed to be done by the owner. The defendant wishes to cut away the half of this column resting on his own lot; the plaintiff contests his right to do so on the ground that it will materially injure his building, and that it was placed there by a special agreement with defendant, and for their joint benefit. Considering that the presumption of the law is that this construction found on the defendant’s soil, was placed there by himself — that article 863 of the Code declares, opposition may be made to every species of new work from which injury is apprehended, whether the work be in the city or in the country, in places built up or not built up; and considering further that the Civil Code, Art. 1810 and 1811 declares that actions without words, and even silence and inaction, are, under certain circumstances, presumptive evidence of a contract; we consider that the defendant would be in equity estopped from the right he claims of substituting a granite column in place of the iron one now resting partly on his lot, if by so doing the plaintiff’s building would be materially injured thereby, aud it can be established that the column was placed as it now is, under circumstances which would imply a consent on the part oí the defendant. The principles of equitable estoppel laid down in the case of McMasters v. the Commissioners of the Atchafalaya Railroad Co., are in every respect applicable to the present case. All the facts and circumstances tending to establish the consent of Labouisse to placing the column as it now stands are susceptible of proof by parol evidence without violating any of the principles which seem to *52have governed the decision of the Court below. If the column can he so changed as to cause no detriment to the plaintiff, the defendant would have the right, even if his consent is proved, to make the change; but he would be bound to furnish security to the plaintiff to pay any damages which might be occasioned by the change. See Arts. 863 and 864 of the Civil Code.
Justice Vookhies concurs in this opinion.