When such a 'wall exists between two buildings, belonging to different persons, and one of them takes it down with his build ings, he is required to erect another in its place in a reasonable time and with the least inconvenience; the other owner must contribute to the expense, if the wall requir ed repairs, but such expense will be limited to the costs of the old wall ; 3 Kent 436; Eno v. Del Vecchio, 6 Duer (N. Y.) 17. When the wall is taken down, it must be done with care; but it is not the duty of the person taking it down to shore up or prop the house of his neighbor to prevent it from falling. If, however, the work be done with negligence, by which injury accrues to the neighboring house, an action will lie; 1 M. & M. 362; Partridge v. Gilbert, 15 N. Y. 601, 69 Am. Dec. 632.
Where the owner of two contiguous lots erects a brick messuage, with a division wall, and sells to different purchasers, the wall is not a party-wall ; Oat v. Middleton, 2 Miles (Pa.) 247 (but see infra as to the Pennsyl vania statute) ; contra, Eno v. Del Vpcchio, 6 Duer (N. Y.) 17. The right to use a party wall is not lost by lapse of time, even seven ty-five years ; Roudet v. Bedell, Phila. (Pa.) 366. It can be acquired by prescription after a sufficient period; Schile v. Brokha hus, 80 N. Y. 614.
A party-wall must be built without open ings ; Dauenhauer v. Devine, 51 Tex. 480, 32 Am. Rep. 627. Corcoran v. Nailor, 6 Mackey (D. C.) 580; Bonney v. Greenwood 96 Me. 335, 52 Atl. 786; Dunscomb v. Ran dolph, 107 Tenn. 89, 64 S. W. 21, 89 Am. St. Rep. 915 ; Normille v. Gill, 159 Mass. 427, 34 N. E. 543, 38 Am. St. Rep. 441; National Commercial Bank v. Gray, 71 Hun 295, 24 N. Y. Supp. 997. A party-wall can only be built for mutual support; painting a sign on it is unlawful; Wistar v. Pub. Soc., 2 W. N. C. (Pa.) 333. The principle of party walls is based upon mutual benefit, and does not extend to the interior of lots where the adjoining owner cannot be expected to build; Rodearmel v. Hutchison, 2 Pears. (Pa.) 324.
Where one built a party-wall, which was defective and fell over, injuring the adjoin ing premises, he was held liable to the owner of the premises; Gorham v. Gross, 125 Mass. 232, 28 1..m. Rep. 224. Where a building hav ing a party-wall is destroyed by fire, leaving the wall standing, the easement the wall ceases; Hoffman v. Kuhn, 57 Miss. 746, 34 Am. Rep. 491; and so where the wall be comes unfit. either from age or accident ; Odd Fellows' Ass'n v. Hegele, 24 Or. 16, 32 Pac. 679.
An agreement between adjoining owners in relation to a party-wall erected on the division lines of their lots is binding on the and those who purchase subject to such agreement, and creates cross easements upon the lots; Stehr v. Raben, 33 Neb. 437, 50 N. W. 327; Mott v. Oppenheimer, 135 N. Y. 312, 31 N. E. 1097, n L. R. A. 409; but see Nalle v. Paggi, 9 S. W. 205, 1 L. R. A. 33. It creates a covenant running with the land; Keating v. Korfhage, 88 Mo. 524, 1 L. R. A. 3. But an agreement to pay half the cost is merely a personal covenant ; Gibson v. Hold en, 115 Ill. 199, 3 N. E. 282, 56 Am. Rep. 146.
A property owner who utilizes a party wall erected by the owner of adjoining prop erty must pay a reasonable price for such use, either to the one who erected it or to his grantee, although no agreement was made at the time the wall was erected, and the one making use of the wall may have ac quired his title to the property after the wall was in existence; Spaulding v. Grundy,
126 Ky. 510, 104 S. W. 293, 13 L. R. A. (N. S.) 149, 128 Am. St. Rep. 328, 15 Ann. Cas. 1105.
By in Iowa, Mississippi, Pennsyl vania, and South Carolina, 'and in the Dis trict of Columbia, one adjacent owner may build over his neighbor's line, without com pensating him, except that the latter may, when he pleases, use the wall so built, up on paying for it. The cases should be read with a view to the statutes. The regulation of party walls is a very ancient form of ex ercise of the police power, and came to Penn sylvania from the customs of London, like so many other parts of our early law. The subject is discussed in a note in 7 Amen L. Reg. N. S. 10. Such regulation, as it exists in Pennsylvania and some other states, is an interference with the rights and enjoy ment of property, sustainable only on the po lice power, and therefore to be governed and measured by the strict extent of the statu tory grant ; Hoffstot v. Voight, 146 Pa. 636, 23 Atl. 351. The provincial act of 1692 in Massachusetts, similar to the Penngylvania act, was held void as contrary to the bill of rights ; Wilkins v. Jewett, 139 Mass. 29, 29 N. E. 214, a case cited by counsel, but not followed, in McCall's Appeal, 16 W. N. C. (Pa.) 95. But it has also been said that there can be no available objection to the principle upon which the law of party-walls is based. It has constituted a part of the law of France for ages. The principle is no invasion of the absolute right of property. Per Lowrie, J., in Evans v. Jayne, 23 Pa. 36.
The purpose of the Pennsylvania act of April 10, 1849, relating to party-walls was— first, to make the right to compensation pass with the land unless reserved until the wall is used ; and second, to vest in the own er at the time of such use the right to com pensation. Where such right compensa tion has actually vested in an owner, the right does not pass from the owner by his subsequent conveyance of the property, even though there is no reservation of this right; Lea v. Jones, 209 Pa. 22, 57 Atl. 1113. Each purchaser of either lot on which a party wall has been placed has the right to assume that any compensation as between their ven dors has been paid.; Mayer v. Martin, 83 Miss. 322, 35 South. 218.
A party-wall agreement by which it is agreed that a wall about to be erected by one of two adjoining owners shall be a par ty-wall, that it shall stand equally on the land of both, and that the other owner or his representatives, whenever he or they desire to use the wall, shall pay a share of the ex pense of erecting it, does not constitute a covenant running with the land; Sebald v. Mulholland, 155 N. Y. 455, 50 N. E. 260 ; Mayer v. Martin, 83 Miss. 322, 35 South. 218. That such a contract concerns an interest in real estate, and hence the covenants there of run with the land, is held in Hall v. Geyer, 14 Ohio Cir. Ct. R. 229.
One taking a warranty deed, without res ervation, from tenants in common, is not bound by a previous party-wall agreement between his grantors on the one hand, and one of them owning an adjoining parcel on the other, though the agreement is declared to be a covenant running with the land; Kinnear v. Moses, 32 Wash. 215, 73 Pac. 380.
See LATERAL SUPPORT.