Opinion
No. 4324.
Argued September 7, 1954.
Decided September 30, 1954.
In construing a deed to real property a plainly erroneous description will be rejected and a reasonable meaning given to the deed which will conform to the intent of the parties.
Where it was deemed to be the intent of the parties to the deeds of bordering premises that a party wall be established on the common boundary between adjoining buildings and its use as such is essential to each building and confers benefits on both, the reconstruction of one building resulting in damage to the party wall renders the owner of such building liable to the other irrespective of negligence.
CASE, to recover damages to an alleged party wall caused by reconstruction work done by the defendants, who, denying the existence of a party wall, claimed sole ownership and prayed for an injunction restraining the plaintiffs from using the wall. Trial was commenced by jury but as the result of an agreement, the jury was dismissed and the matter left to the Court which rendered a verdict for the plaintiffs and denied the defendants' prayer for an injunction. The defendants excepted to the denial of their motions for a nonsuit and directed verdict.
It appears that the properties involved consist of two adjoining buildings owned by the plaintiffs and defendants. The plaintiffs' property is a wooden two and one-half story house and the defendants' was a three-story brick block which they have remodeled into a one-story store. The property belonged to a common owner for about seventy years prior to 1941 when the lot with the brick block was deeded to defendants' predecessor in title, while in 1950 the plaintiffs bought their property. The deed from which the plaintiffs derived title conveyed certain lands with the buildings, describing the disputed boundary as follows: "to the southeasterly corner of the brick block; thence northerly along the easterly face of said brick block about forty-two feet and two inches (42' 2") to its northeasterly corner." The deed upon which the defendants' title rests described this boundary as "thence northerly . . . along the easterly face of said brick block forty-three feet, two inches." Originally the buildings on the two lots were separated, but sometime prior to 1885 the brick block was enlarged and joined onto the rear of the house. Since the block was a few feet wider as well as slightly higher than the house where they join, the overlap on each side and on the top was of brick so that it appeared a solid brick wall. Until the reconstruction began both parties reasonably supposed that each had a separate rear wall, the plaintiffs' being of wood and the defendants' brick. Actually, the defendants had no rear brick wall where the buildings joined but were using the wooden one framed by brick as were the plaintiffs. In addition to this the brick overlapped the west wall of the plaintiffs' house by several inches so that a straight line running across what seemed to be the face of the brick wall from side to side according to the deed would cut through the plaintiffs' house. When, in the spring of 1951, the defendants substantially remodeled their brick block, they exposed the upper portion of the plaintiffs' rear wall to the elements, removing some clapboards and boarding and opening a hole in another part of the wall. They still continue to use the lower portion of the wooden wall as their own rear wall. Because of the defendants' action the plaintiffs have suffered losses and incurred expenses in repairing the portion of their wall which was exposed and otherwise damaged by the defendants. Other facts appear in the opinion. Transferred by Sullivan, J.
Upton, Sanders Upton (Mr. Sanders orally), for the plaintiffs.
Jacob M. Shulins and Richard C. Duncan (Mr. Duncan orally), for the defendants.
The defendants concede that ordinarily in the situation here the disputed property would be presumed a party wall in accordance with the general law. 69 C.J.S. Party Walls, ss. 3, 10. But they contend that the language of the deed, although obviously based upon a mistake of fact, compels a different conclusion. To reach this result we are asked to say that when the common owner of the property conveyed the brick block to the defendants' predecessor in title, the parties intended that the grantor should deed without reservation a portion of the rear wall of the house which he retained including certain parts of his bathroom plumbing and fixtures. It seems to us that to state this proposition is to refute it and that considering all the circumstances the parties could have had no such design as the defendants claim. Kendall v. Green, 67 N.H. 557, 563. Rather, putting ourselves in their shoes (North Hampton District v. Society, 97 N.H. 219, 220), we believe that the intent was that the transaction should result in each having a complete, usable building which would be the case if the deed were construed as establishing a party wall. The defendants are in no position to complain of this since they are still using it as such. See 69 C.J.S., Party Walls, s. 8. Since too, for many years it has been essential to each building and conferred benefits on both, such a construction would ordinarily be proper. Restatement, Property, s. 476, comments g, h, i. Furthermore, it would be a reasonable interpretation under our law as presumably in accord with the intent of the parties. Bean v. Dow, 84 N.H. 464. Not only would the defendants' construction be manifestly unreasonable but actually it is impossible to run the boundary line "northerly . . . along the easterly face of said brick block forty-three feet, two inches," since the brick face extends comparatively few feet from the outside corners of the store to the wooden side walls of the plaintiffs' house, and for the greater portion of its course the line would be cutting through the plaintiffs' laths, plaster and toilet facilities rather than running along the face of the brick block. In analogous situations, courts have had no hesitation in holding that a plainly erroneous boundary description will be rejected and a reasonable meaning given to the deed which will conform to the intent of the parties. Winnipisiogee Paper Co. v. New Hampshire Land Co., 59 Fed. 542, 547. See also, Prescott v. Hayes, 43 N.H. 593, 596. Applying this principle to the facts here, it appears the Court's ruling that a party wall existed was correct.
The defendants further claim that conceding this to be a party wall they are nevertheless not liable for any damage done the plaintiffs since there is no allegation that they acted negligently in their remodeling. The authorities they cite as supporting them seem generally distinguishable from the present case in that they involve situations where the defendant had ceased to make any use of the party wall, as for example in the case of Thompson v. DeLong, 267 Pa. 212. That is not so here where the defendants continue to make use of the wall. In such circumstances it is no more than just and reasonable that they should pay the expenses occasioned by their action in depriving the plaintiffs of their easement of support and protection from the elements. Bean v. Dow, 84 N.H. 464; Cino Theatre Co. v. B/G Sandwich Shop, 24 F.2d 31. It follows that the prayer for an injunction was properly denied and that there must be
Judgment on the verdict.
All concurred.