Dauenhauer v. Devine

Citations

• 51 Tex. 480

Syllabus

<p>1. Jurisdiction—Injunction.—In a suit by injunction and for general relief by the half owner of a partition wall between building lots in a city against the other half owner, each party owning one of the contiguous lots, to enjoin the placing of windows in a third story about to be built on said wall by defendant, alleging that the windows would result in irreparable damage, exposing plaintiff’s building to fire, giving access to unauthorized persons on his roof, and resulting in consequent depreciation of the value of plaintiff’s property: Held—</p> <p>1. That it was not necessary to charge a measure of the damage anticipated to give the court jurisdiction.</p> <p>2. The title and possession of land were so far involved by the character of the action as to give the court jurisdiction.</p> <p>2. Dividing walls.—When a dividing wall is constructed by parties owning adjoining lots, by agreement “to rest equally on the land of each, to be equally used by each for all the purposes of an exterior wall,” each party has (1) an easement in the half of the wall on his neighbor’s lot which entitles each to the use of the whole as a party-wall ; (2) the right to afterwards raise the wall, if it be of sufficient strength andean be raised without interfering with or injuriously affecting the rights of the other part owner. It follows, that after the construction of a two-story wall under such an agreement, a new agreement providing for the right of one of the parties to erect a third story on the party-wall, it being of sufficient strength to support it, was without consideration.</p> <p>3. Party-walls.—If, however, the original agreement under which a party-wall is built, resting equally on the ground of each adjacent proprietor, provides for a wall without windows, no right exists in either party to erect another story with window openings on that part of the wall belonging to his neighbor.</p> <p>4. Decree—Injunction.—After an injunction prohibiting the part owner of a div