Thomas Orman, Administrator of Simpson, Appellant, vs. J. & D. J. Day and the Apalachicola Land Company, Appellees, 5 Fla. 385

WEIGHT, O. J.: This is a cause brought up on appeal from a decree in the Circuit Court of Franklin County, dismissing the bill of complaint therein.

The facts disclosed by the pleadings and the evidence are as follows : On the 18th April, 1836, the Apalachicola Land Company, by their directors, entered into a written agreement with Samuel Simpson, since deceased, whereby they undertook to convey to Simpson lot No. 2 in the plan of the city of Apalachicola, complete and perfect titles to the said Simpson to be made, on his paying for the property the purchase money agreed on, and on condition also that Simpson should erect upon the lot in question a substantial brick building, of a size, character and description particularly set forth.

On the 13th of January, 1838, a complete and perfect title was made to Simpson, he having in the meantime performed the conditions imposed by the above written agreement. Lot No. 3, adjacent to Lot No. 2, remained undisposed, of by the Land Company until 1st October, 1816, when a lease was made of lot No. 3 to Jeremiah Day and Daniel J. Day, by which lease this lot was demised for the term of seven years, at an annual rent of $300.

The Days proceeded at once to erect a brick store-house on lot'No. 3, using the wall of the building previously erected by Simpson as the partition wall between Simpson ■and themselves, which partition wall had been built six; Laches on each of the lots Nos. 2 and 3. The relief sought by the bill is that the Apalachicola Land Company, or the Days, whichever may be liable-therefor, should be decreed to pay to the complainant the one half of the expense of the building of said partition wall.

The depositions of a number of witnesses wore taken in the cause, and the substance of the evidence thus obtained is, that the buildings erected on water street, (where lots 2 and 3 are situate,) were of uniform size, 30 feet front by 80-feet deep, and three stories high ; that party walls were-left in a rough, unfinished state for the adjacent owner to build against, and that such was the case with the wall between lots 2 and 3 ; that adjacent builders paid each one half the expense of the partition wall; that by the conditions of sale, buildings were required to be of brick; that the Land Company had an agent at Apalachicola, who was cognizant of these arrangements ; that the usual mode of building was to place half of the partition wall on the adjacent lot, &c.

Each of these witnesses had himself built on water street. The use intended to be made of this evidence is not very clear.

If it was designed to establish an usage in the matter of building partition walls at Apalachicola, in 1836 and ’7, and thereby to show that there was an implied obligation upon the Land Company, or their lessees, to contribute to the party wall erected by Simpson, it is scarcely necessary to say that no such obligation could arise — certainly not upon the Land Company, whose business was the selling of lots, not building on them; and certainly not upon the other respondents, the Days, for nearly eight years elapsed after the building of Simpson’s store before the date of the lease to the Days, and there is no proof that they had any notice of such usage.

Judging from the course of the argument, however, the object of this testimony would seem to'be to-fix upon the Land Company a participation, agency and.control in these building arrangements, outside of their written contracts. But the evidence proves nothing of the sort, and if it did it would be met by the familiar principle, as true in equity as at law, that no parol evidence can be received to alter, vary or contradict the terms of a deed. It is upon the deeds, then — the conveyance to Simpson and the lease to the Days — that we are to consider this case.

Deduced to its simple elements, the case made for the consideration of the Court is this : Simpson was owner of lot No. 2. He built on his whole front, and encroached six inches on lot No. 3. The Days afterwards leased and built on lot No. 3, and availed themselves of the partition wall which Simpson had thus supplied. The principal authority relied on for the complainant, is the case of Campbell vs. Mesier & Dunstan, 4 John. Ch. R., 334.

In that case an old party wall, standing betweexr two houses which were in a ruinous condition, was taken down by the owner of one of the houses, to enable him to build his house anew. lie gave notice of his intention to the owner of the adjoining house, and requested liixn to contribute to the work. It was decided by the learned Chancellor that the owner of the newly built house was entitled to contribution in the building of the wall. By a careful comparison of the case above cited with the case at bar, it will be seen that there is but little analogy between the two.

The mere existence of an old party wall between, two adjoining lots, ixr a town or city, built equally on both lots, carries along with it the idea of joint ownership in the wall, and a common obligation to keep it in repair ; for though upon the px'iixcipie that the owner of the soil owns all above it, the property in the wall follows the property in the land, yet the common user of a wall adjoining lands belonging to different owners, is jprima facie evidence that tlie wall and the land on which it stands belong to the owners of the adjoining lands in equal moities as tenants in common.

See Gale and Whatley on Easements, 296. And this is in effect the principle established and enforced in the case of Campbell vs. Mesier & Dunstan. But it by no means follows from this that when the owner of a lot builds upon it a new party wall, and places one half of it upon the lot of his neighbor, he thereby acquires any right to claim contribution for the building of the wall.

It is every way right to build upon his land or not to build upon it, and to permit or forbid any other person to build upon it; and if it be built upon in any way or to any extent, without the consent of the owner, such building upon it is a trespass. It is alleged, however, that the Land Company had their agent on the ground, and that he made no objection to the building of the wall in question. This makes no difference, whatever may have been the relative rights of the purchasers of lots who built in 1S36 and ’31, under the general consent proved in the case in regard to party walls.

That understanding could not affect the Land Company, whose business, as has been already said, was the selling, not building on, tbe vacant ip lots of the city, and who, so far as appears, gave their agent/'^ no authority in the matter.¿f Tire case of Sherrod vs. Cis fesiy-reported in 4 upon tbe point volved in this cause, and itá 'reasoning commands the en- * tire assent of this Court. The principles of law and equity arising in that case, were, in all respects, identical with those which govern the case before us. There the decision of Chancellor Kent in Campbell vs.

Mesier is carefully reviewed, and it is clearly shown that its reasoning has no application to a case like the jiresent. Cases were cited in. argument to show that where the owner of the adjoining lot was applied to by the person who-was about to build a party wall, to contribute to the expense, and such person assented, and signified that he would pay his proportion, the same might be recovered at law. Of this there cannot be a doubt. ' The mutual convenience of the parties would be an adequate consideration for such a provision ; but then the promise must be' express.

TTpon the whole, it seems very clear that the Apalachicola land Company was at nor time bound to contribute to the expense of erecting the party wall built by Simpson, and it follows with stronger reason that the. other respondents are not responsible. The lease to them covered the whole of lot No. 3, and upon the principle of law that the owner of the soil is the owner of everything-built upon it, carried with it also the one half of the wall. Other points were made in the record and in the argument,'and numerous authorities were cited to sustain them.

It is sufficient to say, however, that the whole case is against the complainant, on the merits. Let the decree below be affirmed. )/