Appellee instituted this suit to recover one-half of the value of the south wall of a brick and stone building owned by him to which it was alleged appellant attached a building by him erected on the adjoining lot. The wall was alleged to be of stone and brick and of the value of $2,000. Appellant pleaded the general denial, and specially that the wall in question had been erected about 18 inches over on the lot belonging to him, and that, in order for him to inclose his said lot with a building, he was necessarily compelled to tie onto the wall of the plaintiff. The only issue submitted was that of the value of the wall in question at the time it was appropriated by the defendant as the north wall of his new building. The jury in answer to this special issue found that the value of the wall was $1,000, whereupon the court entered judgment in appellee's favor for the sum of $500, from which judgment the defendant has duly appealed.
On the issue of the value of the wall the evidence was conflicting, but it is undisputed that appellee owned a two-story stone and brick building that for some ten or more years had been located upon lot 5 and block 4 in Archer City; that appellant owned the lot immediately south of that owned by appellee, and in March, 1910, began the construction of a two-story stone building which was completed in due time; that in constructing his building appellant used the south wall of appellee's building for the north wall of his own, placing the joists and rafters of the new building within and upon appellee's wall.
Appellant's assignments of error seem not to be in accord with the rules as appellee urges, but we have nevertheless considered the record, and find no substantial merit in the appeal. Appellee's adverse claim and use of the old building and wall for more than 10 years as he alleged is undisputed. The fact, then, if it be so admitted, and as there was some evidence tending to show, that the wall in question extended over on appellant's lot some seven or more inches, is not controlling, for appellee had thus acquired by limitation full title prior to appellant's use of the same. Indeed, this conclusion is not essential to appellee's right of recovery. There is nothing in the evidence indicating that the wall was not so built by agreement on the part of the owners of the several lots at the time the wall was originally built. The long undisputed existence and use of the wall by the appellee, even if short of the period of limitation, would authorize the presumption that the wall was originally built as a party wall. Appellant, therefore, at all events became liable for one-half of the cost or value of the wall by the undisputed use he made of it, and the court committed no error in only submitting the issue of value; the evidence on all other material issues being undisputed.
"A proprietor of land has no right to avail himself of a division wall built by an adjacent proprietor before paying his proportionate share of the costs of its erection, for, until he pays his share of the cost, the wall is not one in common, but the exclusive property of the builder." 30 Cyc. p. 788; Deere, Wells Co. v. Weir-Shugart Co., 91 Iowa 422,59 N.W. 255; Costa v. Whitehead, 20 La. Ann. 341; Zugenbuhler v. Gillian,3 Iowa 391.
True, as held in Nolan v. Mendere, 77 Tex. 565, 14 S.W. 167, 19 Am. St. Rep. 801, Griffin v. Sansom, 31 Tex. Civ. App. 560, 72 S.W. 864, and other cases that might be cited, the mere fact that an adjoining owner makes incidental use of a party wall *Page 486 standing partly on his land and to the erection of which he has not agreed to contribute does not render him liable for any part of the cost, but here there was more than this. Appellant in the construction of his building closed windows in appellee's wall, drilled holes therein for the support of rafters and joists, and otherwise made the wall an integral part of his building. Moreover, the correspondence between the parties clearly imports a promise on appellant's part to pay something for the use of the wall as in his letters he solicited; the only controversy appearing to arise over the amount that appellant should pay.
We conclude on the whole that no error in the proceedings has been presented, and that the judgment should be affirmed.