O'Malley v. De LaPuente, Appellant

O’Malley v. De LaPuente, Appellant. Party walls — Construction—New use by second party — Liability for portion of cost. Where the first builder has erected a brick party -wall in place of an old frame one, and the owner of an adjoining lot subsequently alters her building and makes new use of the party wall, she is liable for a proportionate share of the new wall. Where the second builder erects a building, which would be unlawful but for the fact that the party wall of the first forms one part of the structure, she is making a new use of the wall and becomes liable for her proportionate share of the cost. Party walls — Cost of construction— Statute of limitations. The use of the party wall creates the liability of the second builder, and a claim for compensation may be presented any time within six years from the date of such use. Argued Nov. 13, 1918. Appeal, No. 91, Oct. T., 1918, by defendant, from judgment of the Municipal Court of Philadelphia, Oct. T., 1917, No. 119, for plaintiff in case tried by the court without a jury in the suit of Michael O’Malley v. Mary A. De LaPuente. Before Orlad?, P. J., Porter, Henderson, Kephart, Trexler and Williams, JJ. Affirmed. Assumpsit to collect one-half the cost of a party wall. Before Crane, J., without a jury. The facts appear by the following opinion of the court below entering judgment in favor of the plaintiff in the sum of $111.80: Plaintiff brought suit under the Act of February 21, 1721, and the supplements thereto, to recover from the defendant one-half of the cost of that portion of a party wall alleged to have been used by the defendant, which was erected by the plaintiff. Plaintiff and defendant had for many years prior to March 21, 1907, been owners respectively of premises 1632 and 1634 Eidge avenue, Philadelphia. On March 21, 1907, the plaintiff tore down the frame structure on the rear of his property and erected a three-story brick storage building, with a brick party wall conforming to the building regulations. When this was done, the frame stable built on the rear of defendant’s lot was attached to the brick party wall constructed by plaintiff and no claim was ever made upon defendant to pay her share of the cost of the party wall as used by her. In the latter part of August, 1917, defendant converted the stable into a garage in which connection she replaced the frame sliding door of the stable with a brick front. Plaintiff contends that in mhking this change defendant has made a use of the party wall different from that formerly enjoyed by her and therefore she should reimburse him a moiety of the cost of the portion of the wall used by her, as determined by the lawful measure. Defendant, on the contrary, denies that she is making any use of the party wall other than that which she has done since 1907. [After a careful consideration of the testimony offered by both parties in this respect, the court finds as a fact upon the weight of the credible evidence presented, that défendant in August, 1917, in making the alterations to her property, made a new use of plaintiff’s party wall.] The character of the building erected by the defendant in August, 1917, is known as a third-class building, in which connection the law requires a party wall of noncombustible material, thirteen inches wide, laid to a depth of three feet below the ground surface. When the second builder has erected a structure which would be unlawful but for the fact that the party wall of the first builder forms one side of the structure, even though it merely rests against the party wall, without being physically attacked, suck act constitutes suck a use or benefit as will render tke second builder liable for a moiety of tke cost of erecting tke wall: Allen v. Cass-Stauffer Co., 11 Pa. C. C. 231. Tke wall in tke case at bar was built in 1907 and it was not until tke defendant made a new use of tkat wall in 1917 tkat any claim accrued to tke plaintiff. [Tke court is not aware of any law requiring plaintiff to give notice of tke time wken ke has a lawful measurer to measure tke wall in order to ascertain tke amount due kirn by tke defendant.] Tke calculation made by plaintiff’s witness might have been controverted by tke defendant, but defendant did not see fit to do so. There is a requirement tkat wken tke owner of one property desires to erect tke party wall, notice must be given tke owner Of tke adjoining lot, and tke statute further regulates tke manner of giving notice and tke method of apportioning tke cost of said party wall between tke adjoining owners. Had plaintiff sought in 1907, wken ke built this party wall, to charge defendant with ker share of its cost, ke would have been obliged to have given tke notice provided by law. He made no suck claim at tkat time, however, due to tke character of tke use tkat was being made of tke wall by tke defendant. If at any time subsequent to tke erection of tke party wall, defendant makes a new use of it, tke first builder of tke wall is entitled to be compensated, and tkis claim may be presented at any time witkin six years from tke date of such new use. [Plaintiff was not required to notify defendant after she had completed tke alterations to ker buildings, and plaintiff’s claim had vested, of tke time wken ke had tke measurer calculate kis damages.] Tke law regulating party walls is entirely of statutory origin, sustainable only under tke police power of tke Commonwealth; therefore tke regulation of party walls is to be governed by tke rule of strict construction, and kept strictly witkin tke limits of tke statutory provisions on the subject. See Hoffstot v. Voight, 146 Pa. 632. July 17, 1919: [The law is well established that whenever an adjoining owner makes any new use of a party wall built by the other adjoining owner, he is made liable to pay one-half of the cost of that section or part of the party wall of which he has made a new use, or used in a manner different than theretofore. As the court has found as a fact that the defendant in this case made a use of the plaintiff’s party wall in a manner different and for a new purpose than she did prior to August, 1917, she should both in law and equity pay her share of the cost of such wall. The court therefore finds in favor of the plaintiff in the snm of one hundred and forty-one dollars and eighty cents.] [The plaintiff’s requests for findings of fact and conclusions of law are affirmed. The defendant’s requests, inconsistent therewith, are declined.] Errors assigned, among others, was the judgment of the court. John F. Gorman, and with him William Gorman, for appellant. Otto Kraus, Jr., and with him Joseph A. Dolan, for appellee. [MAJORITY — Orlady, P. J.,] Opinion by Orlady, P. J., The plaintiff and defendant are adjoining owners of premises on Bidge avenue, Philadelphia. A controversy arose as to the liability for a reconstructed party wall and this resulted in an action by the plaintiff against the defendant, which was submitted to a judge of the Municipal Court without the intervention of a jury. The findings of fact by the trial judge are warranted by the evidence and decisive of the defendant’s objections to the plaintiff’s right to recover. The conclusion reached by Mm in finding in favor of the plaintiff is fully sustained by the authorities stated in his opinion, and for the reasons therein given the judgment is affirmed.