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GIMBEL BROS. v. MARKETTE CORP.

December 14, 1961

GIMBEL BROS., INC.
v.
MARKETTE CORPORATION and Don Tesauro



The opinion of the court was delivered by: DUSEN

This case is now before the court on defendants' Motions for New Trial after a special verdict for plaintiff on its claim for the costs of tying-in an alleged party wall between 817 Chestnut Street, Philadelphia (owned by Markette) and 819 Chestnut Street, Philadelphia (owned by Gimbels) to plaintiff's 12-story building erected entirely on its property at 819 Chestnut Street. Also, the defendant Tesauro received a special verdict of $ 1500.00 on his counterclaim, where he demanded judgment of $ 9,880, for replacement of parts of the wall and damages due to demolition delays. The jury denied defendant Markette any recovery on its counterclaim for the value of the wall alleged by it to be on its property (see question B). *fn1"

 'The wall extends from the north side of Chestnut Street 173 feet in a northerly direction to the south side of Ranstead Street. It was built so many years ago that no witness was able to testify concerning its erection. The testimony (as accepted by the jury and) which is substantially without contradiction established that the wall is approximately 24 inches thick at the ground level and that at every point along the length of the wall a portion of the wall is on either side of the deed line between the two properties. Prior to 1926, the plaintiff and its predecessors apparently used the wall to support the existing buildings on the plaintiff's side. In 1926, the plaintiff, having acquired title, erected a 12-story steel frame building on the premises at 819 Chestnut Street flush against the wall, but not depending upon the wall for support. The wall in question was used as a curtain wall enclosing the east side of the plaintiff's building, protecting the interior of the building from the elements, from fire, and other such hazards.

 'Thirty years later, in October, 1956, the defendant Markette Corporation acquired title to the adjoining four-story building at 817 Chestnut Street. In December, 1956, defendant Markette Corporation engaged defendant Don Tesauro to demolish the building at 817 Chestnut Street.

 'On instructions from Markette Corporation, defendant Don Tesauro began to demolish the upper portion of the wall in question. Upon protest from the plaintiff the demolition of the wall was ordered stopped.

 'Pursuant to conferences between the parties a written agreement was entered into on July 26, 1957, providing that the wall be restored. Inasmuch as the wall would not stand by itself, it was agreed that the wall would be tied in to the Gimbel Building by bolts at a cost of $ 3,850.00, to be paid by the plaintiff, and that the replacement of brick be made at the expense of defendant Tesauro. This action was brought to determine the liability of the respective parties for the expense of supporting the wall in place, for which the plaintiff made claim, and for the expense of replacing the brick, for which defendant Tesauro had made counterclaim. Defendant Tesauro also made counterclaim for recovery of the penalty paid by him to defendant Markette for the delay in the completion of the demolition. Defendant Markette filed a counterclaim for the cost of construction of the wall and for the reasonable value of the use of the wall taken at one-half the cost of constructing it.'

 I. A wall which is a dividing wall between two buildings held in separate ownership and is used equally as an exterior wall for each may be a party wall, even though it is not used for support.

 The Pennsylvania cases support the following definition of a party wall, as applied to the facts of this case, in the charge (N.T. 461-2):

 '* * * a party wall is a dividing wall between two buildings held in separate ownership which is used equally as an exterior wall for each. It is not necessary that such a wall be used to support the roof or floors of both buildings. It is enough that the wall be used as a curtain wall, protecting the buildings from the elements and protecting the spread of fire.' See McVey v. Durkin, 136 Pa. 418, 20 A. 541 (1890); Neilson v. Hummel, 280 Pa. 483, 124 A. 642 (1924); Pennsylvania Co., etc. v. Odd Fellows, 50 Pa.Super. 255 (1912); Moye v. Morrison, 81 Pa.Super. 251 (1923). In the Moye case, supra, the court used this language at page 257:

 'The front wall of the new building extended up to and adjoined the party wall, the roof, at the time the action was brought, extended up to and adjoined the party wall; the party wall was the only wall which enclosed the new building upon that side. It was not necessary, in order to involve a use of the wall contemplated by the statute, that the party wall should carry the weight of the new building: * * *.'

 II. Markette could not tear down the building on 817, removing all support of the party wall formerly provided by the front and back walls and floors, without supplying any other support to prevent the wall from falling down to the east. (Pp. 2-5 of Markette's brief, being Document No. 34) *fn2"

 Each adjoining owner has a cross-easement of support in a party wall and neither such owner can so alter his building as to cause the wall to fall down through lack of support on his side. See Thompson v. DeLong, 267 Pa. 212, 216, 110 A. 251, 252, 9 A.L.R. 1326 (1920), and cases there cited. In the Thompson case, supra, the court said, '* * * plaintiff had an easement in defendant's part (of the party wall) which the latter could not destroy.'

 III. Abandonment of a party wall for purposes of support of a building does not necessarily mean abandonment of such a wall for protection from the elements and fire.

 The charge on the issues of abandonment (N.T. 483-4) is in accordance with the Pennsylvania cases cited under I above, holding that a party wall may exist for the purposes of protection from the elements and fire, even though it does not support the floors or roof of the building. See, also, Restatement of Property, § 504, comment d; Graham et ux. v. Safe Harbor Water Power Corp., 315 Pa. 572, 575, 173 A. 311 (1934); Werry et ux. v. ...


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