Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-07-22
P A R TY WALLS.
Judge Cole in an Opinion Construes
the Law.
BUILDING INSPECTORS POWERS.
It All Came Up on the Shoemaker
Partition Wall.
THE ORDER DISSOLVED.

.
As briefly stated In The STAR Of YESTERDAY, q
decision has been made by Justice Cole in the
case Of Mrs. Elizabeth Shoemaker against In
spector OF Buildings Eutwise. Az the case was
for an injunction to restrain the inspector from
prosecuting the complainant in the Police
Court for failing to femove a wall after he had
condemned it, and the powers of the inspector
were involved. as also the construction Of the
term party wall, the opinion Of the court is Of
interest.
The opinion il as follows:
Ihe complaint against the inspector Of build
ings 10 that he IL proceeding illegally to con-
denim this wall, and this court 10 appealed to to
enJoin his further proceedings. The bill and
the answer and the afidavits show that the in
spector has been proceeding under two sections
OF the building regulations. The first sections
to which will refer are the two subdivisions
numbered and Of section 2, found IN page
8 Of the pamphlet containing the building regu.
lations of the District of Columbia Those two
sections substantially provide that where the
inspector of buildings finds a house or wall
require the owner or occupier to take
the same down or take down the part that
he finds to be in a dangerous cOndi-
ton. 1t also requires that he shall at the Same
time notify the Occupiers Of the building to
vacate it. Now, il it were necessary to do so, in
order to determine this case, should have no
diMculty in coming to a conclusion that the
building inspector has not condemned that
wall under the provisions Of those two sec
tions. When YOU take the bill and the answer
and the affidavits on both sides together, with
the certificates Of the inspector Of buildings, /
think it is clear that he intended to and has pro-
ceeded under another section Of the building
regulations, to which I shall refer. Had he
really considered this wall dangerous to limb and
and life As provided in the and subdivisions
OF section 2. the law made 1t his duty to i'm
mediately require the building to be vacated.
He did not do that, and il he had considered it
dangerous he evidently would have directed il
to be vacated. l think there 10 no doubt
about his power in case An examination
Of . building il made, and he finds the whole or
and that he has the further right and that it IL
his further duty to immediately notify the &C.
cupant OF the building to vacate II, snd that he
has ample power to enforce his judgments in
that direction under the Goth section. either in
the Police Court or in this court il necessary.
But as / said before, do not think when you
take into consideration all the evidence that
court could find that he has proceeded under
that section. However. that Is an opinion that
/ formed IN my examination in the case. I do
not deem that question Of fact necessary to .
disposition Of 1t.
The other section under which he proceeded
il the 18th subdivision Of section four. ON page
T. may state in this connection that so far
as know. and have examined some authori-
ties in addition to those counsel referred to in
the argument Of the motion, there has never
been any construction Of the 9Th and 7th sub.
division Of section two, to which have re-
ferred, by this court. II there ever has been
any have not found it. and mono Of the judges
with whom have spoken about it remember
any construction Of those sections. OF course,
this one that have given il not An authorita-
tive construction, because 1t 10 not construc-
ton In my Judgment necessary to the DISPOSE
ton Of this case.
Now, referring to the twelfth subdivision Of
section 5, under which the building inspector
also gave notice, in relation to this wall. that
provides and relates wholly to . partition or
division wall, and authorizes the inspector Of
buildings, in case Of the building Of . new
structure Of which the partition wall 10 to form
. part, to inspect the partition wall with view
to ascertaining whether it is sufficient for the
purpose Of the new building. and IL he finds
that ID 10 not then he has the power and the
right to require the part Of the wall the whole
of it, II in his judgment the whole 10 insufficient,
to be taken down and rebuilt or to be strength
ened, il he thinksit may be properly done. But
he has the power to require the entire wall or
any part Of it to be taken down and rebuilt in
such manner as in his judgment will render 1t
safe and sufficiently 20, not only for the pur-
poses of the building that is standing. but
applies to q wall where it 10 sufficient for the
purpose of the standing building. but INSULT
cient for the purpose OF new building to be
erected. That section, however, provides that
the wall shall be taken down by the owner who
proposes to erect the new building and at his
expense, and that he shall be liable to any dam
ages resulting immediately to the adjoining
owner from the taking down Of the wall and
that he shall pay it. 1t fails to provide the
manner in which that shall be ascertained or
paid, and therefore. unless II is ascertsined by
the agreement OF the parties, of course, the
only remedy would be an ordinary suit at law
by one against the other. OF course, l have
nothing to do with the policy Of the building
regulations, but il seems to me it would be o
very good amendment to have some provision
in that regulation providing that before the
wall is torn down and before this damage 10
done to the adjoining owner that there should
be some estimate Of the damage and q sum OF
money deposited somewhere to cover 1t. At the
same time, as l said before, have nothing to
do with the policy Of it. 1t is in the nature Of
interrupting private property for q public use,
and the compensation to the party who is to be
damaged by 1t ought to be secured in some
reasonable wav, it seems to me. However, that
has really nothing to do with this case.
The Sun Building.
Now that section has been construed by this
court at special term-Eqmty Court-in sew
eral cases. The one in which it was most thor
oughly considered both by counsel and the
court was the case OF Eckert Vs. Abel, which
occurred at the time OF the building of the Sun
building. The building inspector then notified
Mrs. Eckert, who was the tenant in an adjoin-
ing house-she not the owner-that the
wall of the house which she occupied which
was division wall between that and the lot on
which the Sun building was to be erected, was
insufficient for the support Of the new building
or the new wall Of the new building that
Abel intended to erect-and authorized the ad-
joining owner to take that wall down and build
q sufficient wall. and the contractor and archi-
tect working under his direction were about to
take the wall down, when she ap-
piled before Judge Hagner, who was
then holding the Equity Court, for
an Injunction. The restraining order
was granted and upon the motion for an in
junction, which was argued very fully and ably
by Mr.. Perry for the complainant and Mr.
Davis for the defendant the motion for iniunc-
ton was denied. The main question argued
was whether the decision Of the building IN
spector upon the question Of the insuffciency
Of the wall was final And Judge Hagner after
a very full consideration of the matter deliv-
cred an opinion, in which he held that the
proceedings in that regard we're regular. that
the section authorized the proceeding, and that
under that section the judgment Of the building
inspector was final and conclusive, and that the
court could not review that finding and could
not 20 into the question Of the suficiency of
the wall, and he declined to 60 into that cues
ton, although a great many affidavits were
fled in the case pro and con, tending to show
lsu.~ -