Vollmer's Appeal , 61 Pa. 118 ( 1869 )

The opinion of the court was delivered, May 11th 1869, by

Read, J.

The Building Acts in England were principally directed to the preservation of dwellings from fire, and the main cause of them arose from the great fire of London in 1666. Two acts were passed in the reign of Charles the Second, and two in the reign of Queen Anne: 6 Anne, c. 31, and 7 Anne, c. 17, from which last acts our provincial legislation of 1721 was partially drawn. The provisions of these acts, so far as relate to fires, are stated by me in The Harmony Fire Company v. Trustees of the Fire Association, 11 Casey 496.

The Act of 6 Anne was for the better preventing of mischief that may happen from fires, and provided, that party-walls between house and house, shall be wholly of brick or stone, and of two bricks thick at least in the cellar and ground stories, and thirteen inches thick upwards from the foundation, quite through all the stories of each house, and eighteen inches above the roof. This applied to all houses within the bills of mortality. The Acts of 7 Anne excepted the houses on London Bridge, and made some additional regulations. Various acts were passed on this subject in 1724, 1759, 1763, 1766 and 1772, until a general act was passed embodying all the former provisions, which, was the 14 Geo. III., c. 78, which, owing to its obscurities, met the disapprobation of the bench.

The Metropolitan Buildings Act, 7 & 8 Vict. c. 84, was passed 9th August 1844, 1 Chitty’s Collection of Statutes, 2d ed., 1851, p. 333. This act provided “ with regard to party-walls in reference to the component materials thereof, every part of such party-wall must be built of sound bricks or of stone, or of such bricks and stone together laid in and with mortar or cement, in such manner as to produce solid work.” P. 377. And it is further enacted, that all buildings not according to this act shall be deemed a nuisance. P. 340.

By the 27th section, if without the written consent of the adjoining owner, the owner of the premises shall make any opening in any external wall adjoining such ground or building (which means a wall built entirely on his own ground and not a party-wall), such adjoining owner can require him to stop up such opening with brick or stone work, and if he does not, then he may stop it up himself, and recover the expenses from the owner of the wall.

This act, with the exception of sections 54 to 63, both inclusive, is repealed by Act 18 & 19 Vict. c. 122, passed 14th August 1865 (1 Ohitty’s Collection of Statutes, 3d ed. 1865, p. 432), which is the present law regulating the construction of buildings in the metropolis and its neighborhood. The walls must be of brick or stone, or other hard and incombustible substances; no opening shall be made in a party-wall except where the buildings are unite.d in the same occupation, and then only under very strict and peremptory regulations, such as requiring two wrought iron doors to close the opening.

On the 24th February 1721, the legislature of the province passed an act for regulating party-walls, buildings and partition fences in the city of Philadelphia, which had received its charter from the proprietary nearly twenty years before. It gave the appointment of surveyors or regulators to the mayor and commonalty in their common council, who were empowered to set out the foundations and regulate the walls between party and party as to the breadth or thickness .thereof; which foundation shall be laid equally upon the lands of the persons between whom such party-wall is to be made, and the first builder shall be reimbursed one moiety of the charge of such party-wall, or for so much thereof as the next builder shall have occasion to make use of, before the next builder shall any way use or break into the said wall. The charge or value thereof to be set by the said regulators.

Persons were forbidden under a penalty to begin or lay the foundation of a party-wall before the same be reviewed and directed by the regulators, from whose decision an appeal lay to the mayor and commonalty at the next common council.

This common-sense legislation was far in advance of that of the mother country. -Similar laws were enacted in relation to the district of Southwark on the 26th March 1762, and to the southern parts of the Northern Liberties of the city of Philadelphia, on the 9th March 1771. These laws in full are to be found in 1 Hall & Sellers 101, 293, 390.

The city, as laid out by William Penn, was a parallelogram of two miles east and west from river to river, by one mile from north to south, with nine streets from east to west, of which two were its outer boundaries, and twenty streets running from north to south. The distance between the streets made very deep lots, whether fronting on the east and west, or north and south streets, and in the division of city property, led to narrow fronts with great depth, and to the erection of back buildings, a style peculiar to Philadelphia. The regulation of party-walls, so as to secure the largest inner front to dwellings, became, therefore, a matter of vital importance.

The Act of 1721 was revived and amended by the Act of 15th April 1782, 3 Sm. Laws 48, and the power of appointment of the regulators was subsequently vested in the corporation of the city. The appointment of regulators in the various districts outside of the old city, is to be found in the Acts of Assembly given in the note at page 11, of the edition of the ordinances, published by the direction of councils in 1851.

The claim for reimbursement of the moiety of the costs of a party-wall,, was only a personal charge against the builder of the second house, and was a chose in action of the first builder, which has, however, been changed by the Act of April 10th 1849, Pamph. L. 600, and it now passes to the purchaser.

The duties of the regulators are now devolved upon the board of surveys, as constituted by the Acts of the 2d February 1854, 21st April 1855 and 13th May 1856, whose power extends over the whole of the present city. On the 7th May 1855, Pamph. L. 464, the legislature passed “ An act to provide for the regulation and inspection of buildings in the city of Philadelphia, and for the better preservation of life and property,” which, with the additional Act of 11th April 1856 (Pamph. L. 319, 20th May 1857, Pamph. L. 590, and 13th April 1858, Pamph. L. 244), form the present supervisory system over the buildings of the metropolis.

The practical wisdom of our colonial legislature one hundred and fifty years ago, laid the foundation of the Pennsylvania system of party-walls, a great and radical improvement upon the principles of the common law, as expounded by the English courts, and those of Massachusetts and New York. Their decisions are collected by Mr. Washburn, in the second edition of his Law of Easements, ch. 4, § 3, p. 535.

The most striking instance of a just application of equitable principles, is to be found in Campbell v. Mesier, 4 John. Ch. R. 334, decided by Chancellor Kent in 1820, and of a narrow-minded one in Sherred v. Cisco, 4 Sandford’s S. C. Rep. 480, decided by Judge Sandford in 1851. After speaking of the civil and the French law of servitudes, he says: “ It may well be that sound policy dictates similar legislation in this state, but we do not feel at liberty to import doctrines from the civil law, however benign or equitable, which conflict with established common-law principles.”

From this review of the doctrines applicable to party-walls, it is clear that it must be a solid wall (without openings), of brick or stone, or other incombustible material. This is required by the policy, as well as the letter of the law. This is the doctrine enunciated by the present Chief Justice, in Vansyckel v. Tryon, 24 Leg. Int. (1867) p. 140. If the first builder does not comply with the law, and make the wall a solid one, “ he becomes a trespasser and wrongdoer.”

Mrs. Judith McCall was the owner of lot 1106 Chestnut street, twenty-four feet front on that street, and running back one hundred and one feet of that width, and then narrowing eight feet on the east, and widening four feet on the west side, making the width of the lot twenty feet, and running back of that width one hundred and twenty-eight feet to Sansom street. By her will, dated 8th March 1828, and proved December 14th 1829, she devised the same inter alia, to her three daughters, Margaret, Harriet and Catharine, and to the survivors or survivor of them for ever; Harriet died in 1848, unmarried, Catharine died in 1859, unmarried, and Margaret died in 1860, unmarried, having by her will, dated 26th of May 1852, and proved January 9th 1860, devised the said lot inter alia to her nephews, Peter McCall, Henry McCall and George Read, who by deed, dated April 6th 1864, conveyed the same to the present plaintiff.

On the 1st May 1856, Charles F. Beck and wife conveyed the adjoining house and lot to the west, Ho. 1108, to the defendant, Gottlieb Vollmer.

The defendant commenced the erection of a factory on Sansom street, in June 1856, six stories high, ninety-nine feet six inches in length, and the whole height seventy-five feet nine inches from the pavement to the roof. The cellar stone wall is twenty-two inches thick, eleven inches on each side from the centre of the wall. The surveyor gave the centre line. The brick wall of the first story is eighteen inches thick, and the upper part from there all the way up is thirteen inches thick. “ The middle of the wall,” says Denegre, Jr., “was on the line dividing the two lots, nine inches of the eighteen-inch wall was put on Mr. Yollmer’s lot, and nine inches on Mrs. King’s lot also.”

The 8th section of the Building Act of 7th May 1855 provides, “ nor in any case shall any party-wall he placed on the adjoining lot, more than ten inches for the stone wall, or more than six and a half inches for the brick wall.” (Pamph. L., p. 467.) “Proceeding with the east wall,” says Mr. Reynolds, the bricklayer, my orders were to leave out openings, to insert window-frames hereafter; as we went along with the wall, we walled up four inches, the outside of the window spaces. I ran up four inches of brickwork, the outside of the wall, where window frames were to go, and left nine inches of brickwork out, where the window-frames were to go ; this was done in each story, except the first. I was directed after the roof was on, and the floors laid, to go up there and take out those four inches of bricks, to put window-frames in; they were working there, the carpenters, when I went there to take out the bricks. They made the window-frames out of scantling, and I put them in each story; there were no sills that I remember put in; they were just scantling joined together; some of the frames were there when I went to take out the bricks, and some were made after I came there; until the roof was on, it was one solid wall. It might be three or six weeks after the roof was on, before I was sent there to put in the window-frames. I think it was six weeks. The roof was put on just as soon as it could possibly be put on. When we started the top bricks of the space, the others came out easily, because they were put in with a straight joint, to be taken out. That was my order to have it built in that way.” “We were more than one day doing it — between three and five days— Mr. Yollmer was present at different times, while we were proceeding in the matter, two or three times a day;” on cross-examination by Judge Parsons, he testified, “Young Joseph (Denegre) said they were going to put in windows, and I said you can’t put in windows in a party-wall overlooking another man’s property. He said, ‘ Oh, we’ll put them in, and will take out the brickwork afterwards, and they’ll not know anything about it.’ ” .

Frank B. Rose says, “ My attention has been directed to Mr. Yollmer’s wall, as seen from Mrs. King’s lot. There are sixteen windows in the wall, upon one of the windows there are shutters that swing over her yard. The window sashes of all the windows open as doors, inward, i. e. into the shop of Mr. Yollmer. There are window-sills, I believe, to every window, what I should term window-sills; their projection is not uniform, it varies slightly from one to two inches, I suppose.”

There were no windows in the west wall of Yollmer’s factory, it being a long dead wall of nearly one hundred feet in length, and if the east wall was without opening, all the stories must have been lighted with gas in the day time. “ If all the sixteen windows were closed,-it would darken Mr. Vollmer’s shop very much,” says one of the defendant’s witnesses. “ He would have to light it with gas.”

It is clear, therefore, that it was a deliberately formed plan of the defendant, to run up this Avail apparently solid, so as to deceive the building inspectors, and the owners and tenants of the adjoining lot, but with sixteen openings, for windows masked by four inches of brickwork, which were taken out when the roof was put on, window-frames put in, the windows opening inwards, and one of them having outside shutters; it was a scheme to get light for his factory surreptitiously, and in direct violation of law. In erecting the wall he took of his neighbor’s ground one inch more for the cellar wall, and about two and a quarter inches more for the brick wall of the first story, than he was entitled to.

The wall was, therefore, built in direct violation of the letter, spirit and policy of the law, and, in the language of the English Building Act, would be a nuisance.

Of the injurious effect on the comfort and convenience of the adjoining OAvner and the tenants, there needs no proof, nor as to the damaging effect upon the value and price of the house and lot of the plaintiff.

There is no dispute that the plaintiff can close all these windows by erecting a board fence of one hundred by seventy-five feet, at great expense, and taking up an additional portion of her own ground; but whilst there is a court of equity open to her she certainly ought not to be obliged to resort to such a remedy, and to abate a nuisance by her own right hand. All the cases in which this remedy has been used are where the Avail in which the windows are placed is erected entirely on land belonging to the owner of it. Those windows are legally opened, and can only be so closed legally. But the windows in this party-wall are wrongfully and illegally put there, contrary to law, and with a direct intention to do an unlawful act for the private benefit of the defendant. Using the language of the English Building Act, it is a nuisance, both, public and private, and is clearly within the restraining powers of a court of chancery.

In' his answer the defendant says: “ That when the said windows were put in the said building by the workmen, Henry McCall was there, who claimed to be the owner of the house and lot east and adjoining that of this respondent. When a conversation Avas had upon this subject, when said McCall told this respondent that he had no objection to the windows being placed on the east AA’all of the said building, only that in so doing he, the said owner of said lot, should not bfe prevented from the erection of a building on their said lot, and that the said defendant should not claim any privilege by the use thereof, that ancient lights were not to be obstructed.” And this respondent denies that said party-wall was wrongfully erected, but says that the said windows were put upon the east wall of said building, where they now are, with the full consent and ’approbation of the said Harry McCall, who claimed to be the owner or part owner of the said adjoining lot, now alleged to be owned by the said complainant in said bill.”

“And further answering, saith that said windows, cases and sashes were put in his said building with the consent and by the approbation of Harry McCall, the then alleged and supposed owner of the said adjoining lot. And this respondent, further answering, denies that the open space within the outer limits, sides or bounds upon and over ground are not part of her ground and lot in her possession, and the uses thereof, under and subject to her control and disposition, only as the same are governed by the statute laws of the state.”

The defendant claims the light through said windows as given him by the Ruler of the universe; that “ He who sendeth rain upon the just and the unjust, has given the light as it now shines to the said complainant and his respondent.”

And this respondent, further answering, saith, “ that no written papers were given by any one relative to the erection of said east wall of his building, or the placing of said windows in the said wall, but a license by parol was given by Harry McCall, who, at the time the said building was put up, was the owner or part owner thereof, and claimed to be such owner of the said premises now claimed by the complainant.”

These statements of an alleged license by the defendant are not responsive to the bill, but are affirmative allegations in avoidance of the plaintiff’s demand, which the defendant is bound to establish by independent testimony. A cardinal error running through the whole of them is, that the title to the lot of plaintiff was in 1856 vested in Catharine McCall and Margaret McCall, whose tenapt was “one Tompkins,” and that Henry McCall was neither an owner nor part owner of it, nor had any interest in the same.

Joseph Denegre, the builder in whose name the building permit was taken out, said: “Before the foundation wall was laid, the city surveyor was employed to give us the line. I called on the building inspectors, when they came there; they came to see the size of the wall I was putting up, i. e. the cellar wall; stone wall.”

“When we got up high enough to put in the windows, above the first story, where the windows are, then I told Mr. Vollmer to go and ask the owner of the property if he would give him the privilege to have windows dn the east side, but it was delayed. Then Í said to Mr. Vollmer, ‘we will put the openings for the windows on the inside of the wall, enclosed outside, and have a straight joint; then if he gives you permission we will take the bricks out without trouble and put the windows in. You can tell Mr. McCall that any time he wishes to have them shut you will shut them up.’ Then the building was put up and the windows were left open inside and shut up outside, because we could not wait for him to go and see Mr. McCall; we had to go on. To the best of my knowledge the roof was on and the floors all laid before the windows were put in. I can’t tell how they came to be put in; it must have been by his asking Mr. McCall. It must have been with the consent of Mr. McCall.” He never heard any person give permission to Mr. Yollmer to open these windows, and it is clear from the whole of his testimony, that the defendant never told him at the time that he had got the consent of any one.

Joseph Denegre, Jr., says: “I saw Mr. Yollmer and Mr. Henry McCall come into the building. They were talking about the windows, and Mr. McCall told Mr. Yollmer that he could put them in, if at any time they saw proper Mr. Yollmer would shut them up.”

Mr. McCall distinctly contradicts these witnesses, and it is certain, that in acting for the owners, who were never applied to by the defendant, that he never intended to give, nor did he give any permission which could not be revoked at any moment. If the father and son are to have their testimony properly weighed, the utmost that can be drawn from the twm statements is, that the defendant did exactly what the elder Denegre advised him to do, to get a revocable license. If, therefore, this is conceded to the defendant, it disposes entirely of the question of acquiescence and lapse of time. The sale and conveyance to the plaintiff operated as a revocation, and there has been no delay on her part in asserting her rights.

The irregularity in the location and building of the party-wall, the determined infraction of the law in these sixteen openings in what should have been a solid wall, in increasing the number of stories from five to six, and in heightening each story, evinces a strong disposition on the part of the defendant to make the property and rights of his neighbor entirely subservient to his own interest, and this without the slightest consideration moving from the defendant to the adjoining owners.

The court below arrived at a correct conclusion, and the interest of the community requires, that these attempts to render our wise party-wall system nugatory should be put a stop to.

The decree is affirmed and appeal dismissed at the cost of the appellant.