Dorsey v. Habersack

Boyd, J., delivered the opinion of the parties. The appellee was the owner of a house and lot in the city of Baltimore which adjoined a vacant lot owned by the appellant which he was about to improve. Some negotiations for the use of the wall of the appellee’s house resulted in the execution of an agreement under seal between them, which was acknowledged and recorded in the Land Records of Baltimore City. After reciting the ownership of the respective properties, Mr. Dorsey’s desire to build a three-story brick building and that he “ has agreed to purchase the right to use the westernmost wall of said Habersack’s house as a party or division wall, and the right to build ¹²⁵ into and-against the same,” Mr. and Mrs. Habersack, in consideration of thirty-five dollars, granted to him “ the full right, privilege and license to place joists to the depth of four inches and to otherwise build into and against the westernmost wall of said Engelina Habersack’s house above mentioned, and to otherwise use the same as a party or division wall; also to extend said division wall southerly for a distance of about twelve feet further upon said Haber-sack’s ground; provided, however, the said William C. Dorsey will promptly repair, or cause to be repaired, all damages done to the said Engelina Habersack’s house by reason of the exercise of the rights and privileges hereby granted him,” etc. The appellee, who was plaintiff below, sued the appellant for damages.

The declaration, which is peculiarly drawn, contains three counts, and the defendant plead the general issue as to certain allegations and license under the above agreement or deed, as it is called in the plea, as to the others. The plaintiff claimed that the agreement had been altered after its execution, and a great deal of the evidence was on that question, which, however, is not before us. The first exception was taken to the ruling of the Court in admitting some photographs offered by the plaintiff The objection to them is upon the ground that there was no evidence to show that they were correct and accurate ; but that on the contrary the testimony of the photographer was to the effect that he had altered the negatives. But there is nothing substantial in this objection, as there is sufficient evidence of the experience, etc., of the photographer to justify the Court in admitting them, and as both sides had photographs in evidence the jury could judge of their accuracy from the testimony of the witnesses.

The important question in the case is whether the Court below erred in granting the plaintiff’s fifth prayer, which instructed the jury that if they found “ that the defendant built on top of the west wall of the plaintiff’s house a wall two or three feet in height and extended the materials of ¹²⁶ said wall so built by him over the whole thickness of the plaintiff’s said west wall for its whole length, and built upon the plaintiff’s chimneys several courses of brick, increasing thereby the height thereof, then the defendant is not entitled to rely on said deed as a defence against his so building his said wall on the whole thickness of the plaintiff’s said west wall or against his so building on the plaintiff’s chimneys.” The effect of granting that was to instruct the jury that the defendant had no right under the agreement to build on the wall of the plaintiff, or raise it higher than it was. In thus construing the agreement we think the Court erred. The plaintiff was not only authorized to place joists to the depth of four inches and to otherwise build into «and against the wall, but to “otherwise use the same as a party or division wall.” It is no longer an open question as to whether one having the use of a party wall can build on it. In the recent case of Poultney v. Depkin, decided at the October term, 1894, of this Court, and referred to in 80 Md., xviii , in the list of cases designated “Not to be Reported,” which can be found in 30 Altantic Reporter, 705, the Court said in reference to an agreement that the defendant might have the right to use the wall of the plaintiff’s warehouse as a party wall: “ Under this agreement the defendant had the right, upon the payment or tender of the sum agreed upon, to use the wall for the purposes to which a party