Coggins Owens v. Carey

²⁰⁶ Rogers, J., delivered the opinion of the Court. This is an appeal from the Circuit Court of Baltimore City. The . subject matter of the appeal, is a deed and agreement, entered into between the parties to this suit on May 2nd, 1905. The deed in question conveyed to the appellants, Coggins and Owens, a strip of land ten and one-half inches (10^ in.) wide, and one hundred and sixty eight and one-half feet (168ft.) long on the east side of Charles street; ninety-three feet (93 ft.) five inches (5 in.) south of German street, in the city of Baltimore.

The deed contained certain covenants and conditions, relating to the use of a wall standing one-half on the land of the appellees, and one-half on the land conveyed to the appellants, and to the respective rights of the parties in subsequent extensions upward and eastward of this wall. The appellees (plaintiffs below) contended that the whole of this wall, that already erected, and that part erected subsequently to the making of the deed of May 2nd, 1905, was a party wall, and that the appellants (defendants below) had no right to open and maintain windows in this party wall, and further, that there was a typographical error in the deed which should be corrected in order to express the understanding and agreement of the parties. After testimony taken in open Court, and argument by Counsel the full relief prayed was granted with costs to the appellees, and it is from this decree that the present appeal is taken. The testimony shows that the appellees had erected sometime prior to April, 1905, on a lot in Baltimore City, known as 21 South Charles Street, a three-story warehouse.

That the appellants, who owned the vacant lot adjoining that of the appellees approached Mr. James Carey, sometime in April, 1905, with a proposition to buy a strip of land ten and one-half inches wide on the north side of appellee’s property, which strip of land ran to the centre line of the north wall of the warehouse then standing, and therewith acquire one-half of the north wall of the appellee’s warehouse. After some short delay the appellees offered to sell for $2,500 dollars, but ²⁰⁷ the appellants only offered $1,500 dollars. The appellants then by letter of April 1st, 1905, offered to buy for $1800 dollars the land. The appellees made a counter proposition on April 4th, 1905, to sell the 10^ inches of land for the sum of $1,800 dollars, provided certain conditions and covenants were inserted in the deed.

Let us look at these letters. April 1st, 1905. Mr. Francis K. Carey, City. Dear Sir.

In regard to the use of the north wall of No. 21 South Charles street, in the construction of our warehouse on Lot No. 19, with reference to which the writer called upon you yesterday morning, would say, we have talked the matter over between ovrselves, and have conferred with several builders. Without exception they all state that the usual custom in circumstances of this kind, is for the buyer to pay one-half of the cost of building the wall and to buy half of the ground, at the price per front foot that ground in the vicinity is bringing. The offer of $1,500 made you about conforms to this custom. After due consideration we have concluded that the use of the wall, and the purchase of ten and one-half twelfths (10 x/2 twelfths) front feet of your ground, would be worth $1,800 to us.

And we hereby offer you this amount for the concessions we ask. We request that you take immediate action and give us your decision as early as convenient. Yours truly, Coggins & Owens, F. V. Coggins. To which appellees replied as follows: 21 S. Charles St. Partition wall.

Messrs. Coggins & Owens, 102 North Frederick Street, Baltimore, Md. Gentlemen: I acknowledge receipt of your letter of April rst, 1905 in above matter. I am authorized by the owners of the lot adjoining your lot on the south, to say, (here follows description of the land) including the right to that part of brick wall which is now erected on said strip, upon the following conditions which are to be made part of the transfer and to run with the land: First. That the brick wall, part of which will be located on said strip and the balance on the remaining land of the sellers, shall be used as a partition wall between the warehouse now erected on the lot belonging to the sellers and the warehouse to be erected on your adjoining lot.

If purchasers desire wall to run a greater depth than the north wall now standing, said wall is to be erected entirely at their expense, and In the same line and of the same thickness as the wall now standing, with ²⁰⁸ the privilege to the sellers to use this new part of said wall at any time as a party wall, without any additional cost or charge therefor. Second. That in case you elect to build your wall higher than the north wall of the warehouse belonging to the sellers, the right is reserved to the sellers, if they hereafter add to the height of their warehouse, to use said additional wall as a party wall, without any additional cost to them. Third.

That in case either the warehouse belonging to the sellers or the warehouse to be erected by you is so far destroyed by fire as.to either cause the destruction of said partition wall or necessitate its being taken down, it shall be immediately rebuilt at the joint cost of the owners of the lot now owned by the sellers and the owners of the lot now owned by you, and in case either has to build at his expense, the other shall not use said wall until he shall pay his proportionate part of the cost of the same, which proportionate part of said c.ost shall be due and payable within thirty days (30) after the completion of said wall. Fourth. If, in the erection of your warehouse, any injury is done to the said wall or to the warehouse owned by the sellers, or its contents, the cost of such injur)? is to be paid by you and you are to guarantee the sellers against all loss or injury which may happen to them, by reason of the use by you of the said wall as a partition wall. . Fifth.

You are to pay to the sellers the sum of eighteen hundred dollars ($1800) in cash, upon the execution and delivery of the deed which is to be prepared by you in a manner satisfactory to me, for the purpose of carrying out the above conditions. The title to the land to be in fee simple and marketable, subject to the easement on the twenty (20) feet in the rear of Wine alley, which easement prevents the erection of the party wall on this part of the lot; and if the dtle is not satisfactory to your attorney, the transaction will be declared off and all parties released from any obligation. In reference to the price of eighteen hundred dollars ($1,800) the sellers did not think they would consider a lower figure than two thousand dollars ($2,000) but have now decided to accept this figure, with the conditions contained in this letter. Sixth.

The transaction is to be completed within thirty (30) days from the date of this letter. You will observe, of course, that the hesitation we feel about the matter is due to the fact that we have already narrowed our lot by building our north wall entirely on our land. If ²⁰⁹ the wall is at any time destroyed and you or the then owners of your lot should take the same position with us that was taken by the Diamond Match Company and should refuse to unite in the erection of a partition wall, we would have to build the wall again entirely upon our own property and would narrow our lot by nearly a foot more, which would be out or the question. We, therefore, wish the transaction to take such shape as to give permanancy to the partition wall without regard to the plans of either party.

In other words, we wish to have an absolute guarantee running with the land, that in case the wall is destroyed, a similar wall will at once be erected on the same ground, at the joint cost of the owners or the two lots. Very truly yours, Francis K. Carey. Answer of Coggins & Owens. Baltimore, Apr. 7, 1905.

Mr. Francis K. Carey, Calvert Building, City. Dear Sir: — We beg to acknowledge receipt of your proposition. We have turned your letter over to our Attorney Mr. Horton S. Smith, who will investigate the Title and arrange the transfer. We wish to thank you for having given this matter your prompt attention and we appreciate your efforts in our behalf.

Again thanking you, we are, Yours truly, Coggins & Owens. In October of 1905 Francis K. Carey addressed the following letter to appellants. Oct. 30, 1905. Estate of James Carey, Party Wall 21 S. Charles Street.

Messrs. Coggins & Owens, Baltimore, Maryland. Gentlemen: My brother called my attention to the fact that in building your warehouse adjoining the warehouse owned by the estate of James Carey, you have opened windows in the party wall overlooking the rear of our lot adjoining you on the south. Under the agreement of May 2nd, 1905, between your firm and the estate of James Carey, no such right was reserved to you and, it is necessary that, the matter should be ²¹⁰ given your immediate attention, I will be glad to have a talk with you at my offices if you will make an engagement with me by telephone.

There are serious practical reasons why it is out of the question for these windows to remain, which I will be glad to explain to you when we meet. Very truly yours, Francis K. Carey. Then followed several letters between Mr. Willis, counsel for Coggins & Owens, and Mr. Carey which resulted in a declination on the part of Messrs. Coggins & Owens to close the windows.

On the 2ist of December, 1905 the appellees filed their first bill of complaint; in which after setting forth substantially the facts above recited and complaining of the thirty windows inserted in the extended wall and the injury resulting therefrom to them, and that they are deprived of so much of their land as is used for one half of said wall as extended easterly from the northwest corner of their warehouse without any benefit to'them, the said appellees, and that the opening of .the windows seriously depreciates the commercial value of their appellees' property and its salability, and they pray for a Mandatory Injunction and general relief, and file as an exhibit a deed between the parties dated May 2nd, 1905 which is in these words: “This Deed made this second day of May, nineteen-hundred and five by and between Susan B. Carey under and by virtue of the powers conferred upon her by the last will and testament of James Carey deceased which is recorded in the office of the Register of Wills of Baltimore County in T. W. M. No. 72, folio 466, etc. Susan B. Carey, life tenant, Thomas K. Carey, John E. Carey, James Carey, Jr., A. Morris Carey, Francis K. Carey and Susanne C. Allison remaindermen, being all of the devisees -under the will of James Carey aforesaid, as parties of the first part and Frank V. Coggins and William A. Owens co-partners trading as Coggins & Owens as parties of the second part. Witnesseth that whereas the parties of the first part are the owners of Lot No. 21 on the east side of South Charles Street in the City of Baltimore and the parties of the second part are the owners of the lot adjoing on the north and known as No. 19 South Charles Street ²¹¹ the dividinglinebeingseventy-one feet eleven and one-half inches southerly from the south east corner of South Charles street and German street and running thence easterly to Wine Alley; and Whereas to enable the parties hereto to use a wall now standing in the northern most outline of lot No. 21 as a party wall and to insure its use forever, as a party wall between the warehouse now standing on lot No. 21 and the warehouse to be erected upon lot No. 19 these are executed. Now therefore in consideration of the foregoing and of the further consideration of the sum of eighteen hundred dollars ($1,800) paid by the parties of the second part to the parties of the first part prior to the delivery hereof and the performance of the covenants and agreements hereinafter set out to be performed by the parties hereto the said Susan B. Carey under and by virtue of the powers conferred upon her by the will of James Carey, deceased, Susan B. Carey life tenant, Thomas K. Carey, John E. Carey, James Carey, Jr., A. Morris Carey, Francis K. Carey and Susanne C. Allison, the devisees under the said will do grant and convey subject to the said covenants and agreements unto Frank V. Coggins and William A. Owens, co-partners, trading as Coggins & Owens, their heirs and assigns in fee simple all that lot of ground lying and being in Baltimore City and more particularly described as follows: (Here follows a description of the property as heretofore mentioned.) Together with the buildings and improvements thereon erected and all and every the rights, alleys, ways, waters, privileges and appurtenances to the same belonging or in any way appertaining. To Have and To Flold the above described and mentioned lot of ground together with the portion of the said wall standing and the rights and privileges and appurtenances thereto belonging unto and to the use of the said Frank V. Coggins and William A. Owens, co-partners, trading as Cog-gins & Owens, their heirs and assigns, in fee simple, subject however to the operation and effect of the following conditions and covenants (which is intended and expressly agreed shall run with and bind the land hereby conveyed and shall be kept by each and all the persons owning or occupying the two adjoining lots aforesaid) whereby the said parties of the first part for themselves their heirs, executors, administrators or assigns covenant by to and with the parties of the second part their heirs, executors, administrators or assigns and the said parties hereto of the second part for themselves their heirs, ex ²¹² ecutors, administrators and assigns covenant by to and with the parties hereto of the first part their heirs, executors, administrators or assigns in manner following that is to say: 1.

That the brick wall part of which will be erected and located on the strip of land hereby conveyed and the balance of the land of the parties of the first part shall be used as a partition wall between the warehouse now erected on the Lot No. .21 belonging to the parties of the first part and the warehouse to be erected on the Lot No. 19 belonging to the parties of the second part and if the parties of the second part desire to erect their wall to a greater depth eastwardly from Charles street than the present wall now standing on Lot No. 21 the said wall is to be erected entirely at the expense of the parties of the second part and in the same line and of the same thickness as the north wall now standing on Lot No. 21 with the privilege to the parties of the second part their heirs, executors, administrators and assigns to use this new wall without any additional costs or charges therefor. 2. In case the parties of the second part elect to build a wall higher than the north wall now standing on Lot No. 21 the right is reserved to the parties of the first part their heirs, executors, administrators and assigns if they hereafter desire to add to the height of their warehouse to use the additional wall without further cost to them. ■ 3. That in case either the warehouse belonging to the parties of the first part on Lot No. 21, or that belonging to the parties of the second part on Lot No. 19, shall be destroyed by fire so as to cause the destruction of the party wall or to necessitate its being taken down it shall be immediately rebuilt at the joint cost of the owners of the lot now owned by the parties of the first part and the owners of the lot now owned by the parties of the second part and in case