Mercantile Library Co. v. University of Pennsylvania

Citations

• 220 Pa. 328
• 69 A. 861
• 1908 Pa. LEXIS 774

Syllabus

<p>Party walls — Erection of wall upon owner’s own premises — Intention as to purpose of wall — Openings in wall — Equity—Remedy at law.</p> <p>The owner of a lot of ground in Philadelphia cannot be deprived of the right to make a party wall between himself and his neighbor, by his neighbor building exclusively upon his own land, either to the line, or a short distance therefrom. The first builder is he who first elects to make a party wall, and his right cannot be defeated by the act of another. There is nothing, however, to prevent the owner of a lot from erecting a wall upon his own premises, and it, therefore, becomes a question of fact whether a wall is a party wall, conferring upon the owner of the adjacent premises the right to use it as such.</p> <p>On a bill in equity to restrain the defendants in the bill from maintaining openings in a wall alleged to be a party wall, it appeared that the wall had been built entirely upon the defendants’ lot, and that between pilasters it receded four inches from the line of the plaintiff’s premises, and that there were open spaces for doors and windows made in the wall. On the plaintiff’s premises abutting on the defendants’ line, was a sixteen feet wide alley curbed, paved and cobble-stoned. For several years before the construction of the wall, this alley'had been opened, and the plaintiff was required to keep it opened by agreement with the owners of other properties adjacent to it, and this was well known to the' defendants. There was nothing to show that when defendants built the wall, they did anything with reference to complying with the statutory provisions regulating party walls. Held, (1) that the wall in question was not a party wall; (2) that under the prayers of the bill as filed the court could not award a mandatory injunction requiring defendants to remove a part of the foundation wall encroaching upon plaintiff’s premises; (3) that as far as the encroachment of the foundation wall was concerned, plaintiff