Opinion
06-22-1933
SMITH v. ROCO REALTY CO.
Abraham M. Herman, of Orange, for complainant. Andrew J. Whinery, of Newark, for defendant.
Syllabus by the Court.
A superstructure upon a party wall, within the defendant's boundary line, is not an extension of the party wall and may be torn down by the defendant.
Suit by Joseph Smith against the Roco Realty Company.
Bill dismissed.
Abraham M. Herman, of Orange, for complainant.
Andrew J. Whinery, of Newark, for defendant.
BACKES, Vice Chancellor.
The defendant owns the property at the northeast corner of Main street and Arlington avenue, East Orange. The complainant's property adjoins on the east, on Main street. The building on the complainant's property is approximately 47 feet high; that on the defendant's was some 25 or 30 feet higher. A 20-inch wide party wall, about 47 feet high, supported both buildings; 12 inches of the party wall sets on the defendant's land and the balance on the complainant's. The roof of complainant's building rests atop the party wall; the extension of the wall 25 or 30 feet higher inclosed the defendant's building on the east. This extension was 12 inches wide and was entirely on the defendant's side of the party line of the land. The defendant started to tear down its building, including the 12-inch extension wall, when this bill was filed and a restraining order issued. Upon the return, the restraint was modified allowing the removal of the extension, not including, however, sufficient for complainant's chimney in the party wall and for the inclosure of a penthouse on his roof. The defendant put up a one-story building. The complainant now wants the extension restored or, failing in that, compensation. To restore would obviously create a menace to life, as would have been the case had the wall remained sticking in the air. The complainant's and the defendant's buildings were erected about the time the party wall was agreed upon by a recorded instrument made by their predecessors in title, February 17, 1887. It reads:
"Whereas The Orange Water Company is the owner in fee of certain tract of land situate, lying and being in the Township of East Orange, in the County of Essex and State of New Jersey, bounded on the South by Main Street, on the West by Arlington Avenue, on the North by the Delaware & Lackawanna and Western Railroad and on the East by land of George D. Woodruff and Whereas the said The Orange Water Company has recently erected upon the Easterly line of their said tract and the Westerly line of George D. Woodruff, a party wall twenty inches thick about fifty feet in depth and about forty-seven feet in height, twelve inches thereof being upon the land of The Orange Water Company and eight inches being upon the land of George D. Woodruff with a chimney therein constructed for the joint use of the parties hereto and Whereas the said George D. Woodruff has paid to the said The Orange Water Company his due share and proportion of the costs of constructing said party wall and chimney.
"Now, Therefore, The Orange Water Company, for themselves, their successors and assigns, do hereby agree to and with said George D. Woodruff, his heirs, executors, administrators and assigns, and the said parties do mutually covenant in consideration of the premises and of one dollar to each in hand paid that the said party wall to the height as now built shall be and remain a party wall so long as the same shall stand and that the said George D. AVoodruff, his heirs, executors, administrators and assigns, shall have the right to use the two chimney flues in said chimney now connected with his building so long as said party wall shall stand without interruption or molestation from the parties of the first part, their successors and assigns.
"It is further understood and agreed that the land whereon said party wall now stands shall be subject to the right of each of the parties to have said wall, be and remain thereon, until it be removed by mutual consent of the parties hereto and their respective successors and assigns and heirs, executors, administrators and assigns, and that thereafter the land whereon said wall stands, shall be as heretofore the property of the respective owners free of all easements and claims whatsoever."
Whether the extended height of defendant's building was part of the original structure, or came afterwards, does not appear; but there is significance in its erection wholly on the defendant's side of the party wall, as there is in the complainant's roof, resting on the 47-foot high party wall, and these two circumstances are persuasive of the interpretation of the party wall agreement by the parties to it by their conforming to its provisions agreeable to their understanding, i. e., that the party wall was to extend to the complainant's roof, and above that there were no community rights. The 12-inch wide extension above, resting on the defendant's side of the party wall and within the defendant's boundary line, lends emphasis to that interpretation, which we adopt The defendant would have been entirely within its rights had it torn away the 12-inch wall above the party wall, protecting, however, the complainant's chimney rights. It does not appear that it ever threatened to do more and it hasn't gone that far.
The bill will be dismissed.