The undisputed facts are that one Glessner was the owner of lot 8, and one Day of lot 9; the two lots being contiguous. In June, 1886, Glessner executed to the plaintiff a mortgage on lot 8.
In July, 1886, Glessner and Day entered into a party-wall contract by which it was agreed that Glessner, who was about to erect a building on lot 8, might build a wall on the line between the lots, one-half on his own lot, and one-half on Day’s lot; the basement of the wall to be 8-J feet high; Day, his heirs and assigns, to have the right at any time thereafter of joining to and using the wall, both above and below the surface of the ground, and' along its whole length, or any part thereof, for any building which he or they might erect on lot 9, provided and upon the express condition that he or they, before using the wall, should pay to Glessner, his heirs dr assigns, one-half of the value of so much of the wall as was so used; that, if the parties failed to agree as to the imlue of the wall, each party should choose one person, and the two thus chosen a third, and the three thus chosen should assess its value, and their decision should be final, and binding upon both parties. It was further provided that,
“If it shall hereafter become necessary to repair or rebuild the whole or any portion of said party wall or walls, the expense of such repairing or rebuilding shall be borne equally by them [the parties], their respective heirs and assigns, as to so much and each portion of said walls as the said parties, .their heirs and assigns, shall or may use jointly.’’
*160Also “This agreement shall be perpetual and at all times be construed as a covenant running with the land.”
Subsequently Day conveyed lot 9, “subject to the conditions of the party-wall contract.” and this title is now in the defendants.
Very soon after the execution of this agreement, Glessner erected a building on lot 8, placing half the wall on lot 9, as agreed. In October, 1894, Glessner died testate; having devised lot 8 to his wife for life, with remainder to his children.
In September, 1895, the plaintiff, on default in the conditions of its mortgage, foreclosed, and bid in the property for the amount due. There being no redemption, the plaintiff became the absolute owner of lot S in September, 1896. On June 15, 1896, the executrix of Glessner’s estate assigned to plaintiff all her interest in any moneys which had or might thereafter accrue to her as executrix under and by virtue of the party-wall contract.
In July and August, 1896, the defendants erected on lot 9 a one-story building, without a basement, and in so doing used a part of the wall; the floor joists resting upon the basement part of the wall. Two arbitrators were appointed by the plaintiff and defendants, respectively, as provided by the party-wall contract, to assess the value of the part of the wall used by the defendants; but the two thus chosen were not able to agree, and never have agreed, upon a third. Both parties are, as must be assumed in the absence of any showing to the contrary, in possession of their respective lots, and are continuing to use the wall as a party wall between their respective buildings.
Upon this state of facts the court ordered judgment in favor of the plaintiff for the value of one-half of that part of the wall used by the defendants, including that part of the basement wall used as a support for the floor joists of the defendants’ building, and adjudging the amount to be a specific lien on defendants’ lot 9.
It is very clear that the defendants cannot continue to use this wall as a party wall without paying somebody one-half the value of the part used. That one must be either the plaintiff or the devisees of Glessner. As between the parties to the contract, and their privies, the covenants of the party-wall agreement would run *161with the land. Kimm v. Griffin, 67 Minn. 25, 69 N. W. 634. Hence, plaintiff acquired nothing by virtue of the assignment from Glessner’s personal representative.
But this is by no means decisive of the case. By the terms of the party-wall contract, the payment of one-half the value — not the cost — of the part of the wall proposed to be used was expressly made a condition precedent to its use. The only fair and rational construction of the contract is that the whole wall was to remain the property of Glessner, his heirs or assigns, subject to the right of Day, his heirs or assigns, to purchase so much of it as he or they might desire to use, by paying one-half of its then value, when— and not till then — he or they would acquire title to one-half of the wall.
This wall was appurtenant to lot 8, and as such all the right, title or interest of Glessner in it passed to plaintiff, under the title to that lot acquired under the foreclosure, which related back to the date of the mortgage. True, Glessner could not create any easements or incumbrances on the lot which would bind the plaintiff. Hence, when plaintiff acquired title, it could have torn down the half of the wall situate on lot 8, which, from the nature of the case, would have destroyed the whole wall. But it had the right to elect to accept and adopt the wall, and to continue to use it as a party wall for its building, and by its acts it has elected to do so. But in doing so it must take the wall with its burdens as well as its benefits, and hence accepted it subject to the right of the defendants to continue, if they so elected, to use the wall as a party wall for their building. This they have, by their acts, elected to do. But in so electing they also must accept the resulting burdens, as well as benefits, and can use the wall only upon making payment to the owner of the wall (the plaintiff, as successor in interest of Glessner, the builder) of half the value of so much of it as they propose to use.
It is further urged that in any event the defendants are not liable to pay half the value of any part of the basement wall, because they have not used it. They may not be using it as beneficially for themselves as if they had put a basement under their building, but we are of opinion that aArailing themselves of the basement wall *162.as a support for the joists of their building constitutes a use of it, and renders them liable to pay for it, the same as for the part used above the surface of the ground.
Order affirmed.