#### Charles Shiverick & Company v. R. J. Gunning Company.

Filed February 23, 1899.

No. 8701

1. Directing Verdict. Where only one conclusion can be drawn from the evidence, the court may direct a verdict consistent therewith,

2. Party Walls: Status of Owners. Owners of a party wall, built at joint expense, are not tenants in common, but each owns in severalty the part thereof situated on his own land, with an easement of supiport from the other part.

3. Trespass. Where one enters upon the premises of another and obliterates a display advertisement, he is liable to the owner for the costs and expenses of replacing- or restoring- the sign to its former condition.

4. Instructions: Review. It is not error to refuse an instruction which, in its theory, has no support in the proof adduced.

5. -: -. A party cannot predicate error .upon an instruction' which is in harmony with one which was given at his own request.

Error from tlie district court of Douglas county. Tried below before Hopewell, J.

*Affirmed.*

*Hall é AicCulloch,*for plaintiffs in error

References as *to- the proper*use *of*party walls: *Af line's Appeal,*81 Pa. St. 54; *Tollmen's Appeal,*61 Pa. St. 118; *Sullivan v. Graff ort,*85 la. 531; *Daucnhaucr v. Devine,*51 *30Tex. 480; *Gibson v. Holden,*115 111. 199; *Hendricks v. Stark,*37 N. Y. 106; *Andrea v. Haseltine,*58 Wis. 395.

*N. II. Ttinnicliff*and. *Elmer E. Thomas, contra.*

References as to the law of party Avails: *Matts v. Hawkins,*5 Tau. [Eng.] 20; *Hoffman v. Kuhn,*57 Miss. 746, 750; *Andrea v. Haseltine,*58 Wis. 395; *Wolfe v. Frost,*4 Sandf. Ch. [N. Y.] 72*; *Partridge v. Gilbert,*15 N. Y. 601; *Burton v. Moffitt,*3 Ore. 29; *Bloch v. Isham,*92 Am. Dec. [Ind.] 287.

References as to the law of joint tenancy: *Phelps v. Jepson,*1 Root [Conn.] 48; *Gity of Chicago v. Sheldon,*9 Wall. [U. $.] 50; *Graesslev. Oarpenter,*70 la. 166; *Yermilya v. Chicago, M. & S. P. R. Go.,*66 la. 606; *Sabine & E. T. R. Co. v. Joachimi,*58 Tex. 45'6.

Norval, J.

The R. J. Gunning Company, plaintiff below, is a corporation organized under the laws of the state of Illinois, with its principal office at Chicago, and engaged in the business of display advertising, leasing walls in different cities for that purpose. The defendants below, Charles Shiverick & Co., are a partnership engaged in the furniture and carpet business in the city of Omaha, occupying as lessees the four-story building situate on the west one-third of lot 8, in block 103, in said city. On and prior to August 15,1882, one John McCreary was the oivnermf the said Avest one-third of lot 8, and the east two-thirds of said lot was OAvned by one Samuel E. Rogers. McCreary was about to erect a building on his portion of said lot, so on said date he and Rogers entered into a party-wall contract, whereby it was agreed that they should unite in building á party wall on the line dividing the said premises; one-half of the wall to stand upon the property of each and one-lialf of the costs of construction to be paid by each. The wall was erected during, said year and the cost thereof was paid according to contract, and McCreary at the same time erected a four-story brick building on his *31portion of the lot, using the said party wall as the eastern wall of his building. No building has been erected on the east two-thirds of said lot 8. In November, 1890, Mc-Creary leased to the E. J. Gunning Company the east or outside surface of said party wall to be used for advertising purposes. Immediately thereafter S. G. Higgins, the then owner of the said east two-thirds of said lot 8, notified the agent of the E. J. Gunning Company that he was the owner of the east half of said wall, and on Mr. McCreary’s attention being called to the matter he paid back the money which he had received as rent and the lease was surrendered to him. Thereupon the E. J. Gunning Company entered into a lease with Higgins for the east half of said party wall for the term of two years. On May 22, 1893, said company entered into a new lease for said wall with the then owner of said east two-thirds of lot 8, for two years for advertising purposes, and on October 17,1894, the lease was renewed for another year. In 1890, in pursuance of the lease with Higgins, the E. J. Gunning Company caused to be painted upon the east surface of said party wall a Durham tobacco sign, 108-a- feet long and 50 feet high, advertising Blackwell’s Durham tobacco. The lettering on the sign was “Smoke Blackwell’s Genuine Durham Tobacco.” Besides, there was a picture of a large Durham bull, occupying a space of 18 feet by 35 feet. This sign remained on the east surface of the party wall until July, 1893, or a month after Charles Shi veri ck & Co. entered the building as tenants, when the E. J. Gunning Company brightened up the sign with a fresh coat of paint. Charles Shiverick & Co. at the time protested against the revival of the sign and asserted the right to put their sign on the building, and requested the E. J. Gunning Company to paint the same, which the latter declined to do. Plaintiff was thereupon notified it had no right to use said party wall for display advertising. In October of the same year Charles Shiverick & Co. obliterated said Durham tobacco sign and painted their own sign upon, said’wall. In March, 1894, *32the R. J. Gunning Company effaced this last sign and replaced upon the wall the Durham tobacco sign, which last sign was painted out by Charles Shiverick & Co. and their own sign urns again placed upon the wall. The following’ August the R. J. Gunning Company again replaced the Durham tobacco sign on the wall and during the night following it was painted out by Charles Shiverick & Co. This suit was brought by the R. J. Gunning Company to recover damages alleged to have been sustained by reason of the painting out of said sign by Charles Shiverick & Co. Plaintiff secured' a verdict in the sum of $600, and to obtain a reversal of the judgment entered thereon the defendants have prosecuted this error proceeding.

The principal question presented for our consideration is raised by the giving of the first paragraph of the instructions, which was to the effect that the plaintiff had the right, under its lease, to paint and maintain the sign in question upon the east *r x*ace of said wall, and that the defendants are liable for the damages sustained by the obliteration of such sign. This instruction substantially directed a verdict for the plaintiff below, Avhicli, in our Anew, was entirely proper. There Avas no conflict in the evidence adduced, and but one inference could be drawn therefrom. The question Avas of laAv alone for the court, and therefore it Avas proper to direct a verdict for the party entitled thereto under the evidence, and the law. *(Woolsey v. Chicago, B.*& *Q. R. Co.,*39 Neb. 798; *Slayton v. Fremont, E.*& M. *V. R. Co.,*40 Neb. 840; *Knapp v. Jones,*50 Neb. 490.) The wall in question was built by two adjoining lot owners, under a written contract so that one-half of the wall, divided longitudinally, rested on the one’s lot and the other half on the other’s lot. Each party to the agreement paid one-half of the cost of constructing the wall, and each Avas the OAvner in severalty of the portion thereof that stood upon his land, subject to the easement or right in the other to have it support the building which he might erect and attach to or *33connect with the wall. The fact that the agreement under which the wall was erected speaks “of the joint ownership of said Avail by said parties in equal proportions” does not take the case out of the rule governing party walls. A consideration of the entire contract, in connection with the practical interpretation placed thereon by the parties thereto, discloses that the Avail was, nevertheless, a party wall, not owned either jointly or as tenants in common by the proprietors of the soil, but each possessed the portion of the Avail which stood on his lot, subject to the cross-easement of support in favor of the owner of the other lot and part of the Avail. *(Sullivan v. Graffort;*35 Ia. 531; *Dauenhauer v. Devine,*51 Tex. 480; *Burton v. Moffitt,*3 Ore. 29; *Bloch v. Isham,*28 Ind. 37; *Sherred v. Cisco,*4 Sand. [N. Y.] 480.)

“Land covered by a party Avail remains the several property of the OAvner of each half, but the title of . each owner is qualified by the easement to which the other is entitled of supporting his building by means of the half of the Avail belonging to his neighbor. The only proper easement attached to a party Avail is the easement of support.” It does not include the right to go upon the land of the other. The easement of support is all that either can convey. *(Ingals v. Plamondon,*75 Ill. 118; *Gibson v. Holden,*115 Ill. 199.)

In *Hoffman v. Kuhn,*57 Miss. 746, Chalmer, J., said: “The OAA-ners of adjoining buildings connected by a party Avail, resting partly upon the soil of each, are neither joint OAvners nor tenants in common of the Avail. Each is possessed in severalty of his own soil up to the dividing line, and of that portion of the wall Avhich rests upon it; but the soil of each, with the Avail belonging to him, is burdened with an easement or servitude in favor of the other, to the end that it may afford a support to the wall and building of such other. Each, therefore, is bound to permit his portion of the Avail to stand, and to do no act to impair or endanger the strength of his neighbor’s portion, so long as the object for which it Avas erected, to-wit, *34the common support of the two buildings, can be sub-served; and each will consequently be liable to the other for any damage sustained by a disregard of this obligation. But the obligation ceases with the purpose for which it was assumed, namely, the support of the houses of which the wall forms a part.”

In *Andrea v. Haseltine,*58 Wis. 395, Lyon, J., in speaking of party Avails, observed: “It seems to be the settled Iuav that the owners of a party Avail standing in part upon the lot of each are not tenants in common of the wall, but that each owns in severalty so much thereof as stands upon his lot, subject to the easement of the other owner for its support, and the equal use thereof as an exteifior Avail of his building. Such being the tenure by which the Avail is held and owned, it seems logically to follow that either owner may, at least upon his own land, do anything with the wall, or make any use of it, which does not interfere with or impair the enjoyment of such easement by the other owner.”

Applying the principle governing the foregoing decisions to the case at bar, it is very plain that the defendants, below had no right to go upon the lot of the adjoining owner and obliterate the sign painted by plaintiff on the east surface of said party wall. The instruction criticised was pertinent and proper.

Instructions were tendered by the defendants, which were refused, announcing the doctrine that the owners of the lots on which the wall was erected were joint owners of the wall, and directing the jury to find a verdict for the defendants. From what we have already said in this opinion it follows that said requests to charge were properly refused.

It is urged in the brief that the court erred in not giving instruction No. 3 asked by the defendants “found on page 177{-.” No instruction tendered by defendants appears on said page of the record, but such page contains instructions requested by the plaintiff, which were refused by the court. On page 177| there is recorded de*35fendants’ request No. 3, which is probably the instruction sought to be criticised in the brief, which is in the language following: “The jury are instructed that if they believe from the evidence that the character of the painting placed upon the wall in question was such as to be injurious and detrimental to the other person having an interest in said wall, so as to injure said building or its use for any purpose for which it might properly be used, you will find for the defendants.” This request is based upon the theory that the sign in question was detrimental to the business of the defendants. No evidence is found in the record on which to base this instruction. It is true evidence was offered, and rejected, to establish that defendants’ customers were mainly ladies of the city of Omaha and the advertisement greatly impaired and injured their trade. The ruling upon this point was not assigned for error in the petition in error. The proofs show that the sign contained a perfect picture or likeness of a Durham or shorthorn bull, but we cannot take judicial notice from this fact that the picture was so immodest or indecent as to prevent the most fastidious or refined ladies visiting defendants’ store. There was no error in refusing to charge the jury as requested by said instruction.

Complaint is made of the rule of damages laid down in the following portion of the charge of the court: “The plaintiff is entitled to recover as its measure of damages in this action such amount as will compensate it' for the loss it sustained in consequence of defendants’ wrongful act in erasing and marking out the sign in question, the cost of replacing said sign, including railroad fare of workmen from Chicago or elsewhere, if sent specially for that purpose, together with hotel bills to plaintiff. The actual cost of repairing, replacing, and maintaining said sign under its contract to the Durham tobacco people is-plaintiff’s full measure of damages, and this you will ascertain and allow in such sum as from a preponderance of the evidence you find to be such cost, but you cannot *36allow exemplary damages; that is, you must not assess damages for the purpose of punishing the defendants.” It is argued that the true measure of damages is the market value of the material and labor necessary to replace the sign, and that the instruction was erroneous in allowing plaintiff to recover hotel bills and railroad fare. Ordinarily, the reasonable costs and expense of replacing or restoring the sign each time it was obliterated by the defendants was the proper measure of damages. (3 Sedgwick, Damages [8th ed.] sec. 932; *Harrison v. Kiser,*79 Ga. 588; *Graessle v. Carpenter,*70 Ia. 166; *Vermilya v. Chicago, M. & S. P. R. Co.,*66 Ia. 606.) As to the allowance for railroad fare and hotel bills these might or might not be proper elements of damages, according to the circumstances of the case. In this action the defendants brought out on cross-examination of one Cartwright,, a witness called and examined on behalf of the plaintiff, the testimony relating to expenses incurred by plaintiff for railroad tickets and hotel charges for the persons who repainted the sign, and it was likewise shown beyond controversy that workmen could not be obtained in Omaha who could restore the sign. It was proven that such workmen were employed at a monthly salary ranging from $80 to $100 and their expenses paid. Moreover, the defendants tendered, and the court gave, this instruction on the subject: “The jury are instructed that the plaintiff, if entitled to recover, is entitled to recover only the value of the necessary expense in replacing the sign upon the wall, and unless you believe from the evidence that in replacing said sign it was necessary to bring workmen from another city to do the work, you will not consider the evidence as to railroad fare in connection with your estimation of the amount of damages.” Plaintiff cannot be heard to complain of the instruction given by the court on its own motion, since it was along the same line, and announced the same principle, as that given at the request of the defendants. *(Jonasen v. Kennedy,*39 Neb. 314; *Richards v. Borowsky,*39 Neb. 774; *City*of *Omaha**37*v. Richards,*49 Neb. 244; *American Fire Ins. Co. v. Landfare,*56 Neb. 482.) No prejudicial error in the record having been pointed out, the judgment is

Affirmed.