Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-07-22

clearly insufficient. and directed McReynolds,
the owner Of the adjoining lot, to take it down
and erect brick partition wall in the place of
It. Bennett thereupon applied for an injunc-
ton on the ground that that was not partition
or division wall, and. therefore, the section did
not apply to it, and Judge Cox 30 held. Judge
Cox granted the injunction in that case upon
the ground that that was not partition wall.
He held that where there were two vacant lots,
side by side, that whoever built first might
elect either to build partition wall or to build
q wall wholly upon his own lot, and il he built
wholly on his own land that did not become q
partition wall. asd tho next adjoining owner
when he came to bui,i would have to build his
own WALL And upon that ground he granted
the injunction in that case There was Q motion
to dissolve that injunction, and Judge Cox GER
tilted to be heard In the General Term in the
first instance. Mr. Matthews appeared for
McReynolds, but he never proceeded with the
case.
APartition Wall.
/ am satisfied that that is a correct construc-
ton of that section. Thstitapplies only to par
tition wall, aud that where there are two vacant
lots the first builder may or may not builda par
tition wall as he sees it. The adjoining owner
cannot be compelled to submit to the building
of partition wall in the first instance. That
is. II he has structure on his own lot which
does not contain partition wall. 30 that the
question whether the building inspector may
properly require the wall in this case to be
taken down bv the owner who now proposes
to build the new structure at his expense,
and at his damage il there be any. and
new wall erected there. depends upon
the question very much discussed in this case,
as to whether this WAS or il a partition wall. /
think 1t Is think that the Maryland case and
the PennsyivaniA case. referred to by Mr.. Du-
vail. as well as the general principles governing
in matters generally of that sort, make that
wall partition wall The two lots were at the
time OF the building of that wall the property
Of single owner. He built the two houses,
constructed the wall between them and then
by two separate and distinct deeds. think
that OF itself, without regard to when the deeds
were made or in what order they were made,
constituted that Of necessity party wall or
partition wall existed.
The Shepherd Wall.
In addition to the authorities referred to by
Mr.. Duvall, there Is Q case in this court, in the
General Term, which holds the same doctrine.
That is the case OF BARLEY vs.. Spalding 20
Washington Law Reporter. 457, which was de-
cided In general term by the chief Justice.
Judges James and Bradley. There, IN this
case. the wall In controversy was built by Alex
ander Shepherd when he owned both lots. He
built two houses and constructed this wall. The
weight Of the evidence is upon one lot, though
there was . controversy there as to whether it
was all upon one lot or not. Here there Is no
controversy upon that point Of fact. 1t was
largely upon one il not wholly SO, and the
question was whether that was a partition wall.
Judge James, in delivering, the opinion Of the
court In that case, referred to that ma tier in
this language: ''This was q suit for an injunc-
ton, requiring the defendant, Spalding, to close
certain windows in what is alleged to be party
wall overlooking the premises Of the complain
ant and interfering directly with their enjoy
msnt in privacy In certain rooms in their
house. It appears that the complainant and
defendant are owners Of two adjoining proper
ties originally belonging to Alexander r. Shep-
herd, in his subdivision Of square 1874
The houses were sold at different
periods by Shepherd a. lots IL and
is. The defendant claims some peculiar
right on the ground that Shepherds convey.
ance Of his title was prior to that Of complain
ants, and that in that way 1t became necessary
in order to save any rights to the party wall SO
called to the complainant that there should
have been . reservation out Of the deed to
Shepherd. His claim 10 that he bought the
whole division wall as an appurtenance. Where
the wall 10 built in row Of houses the whole Of
IL IL not An appurtenance to one Of them. The
purchaser Of each house has half Of the parti
ton wall % party wall"
Dissolves the Order.
The calls in the deed of the complainant in.
clude the whole Of this lot, but think that the
fact that this wall was there when the deed wal
made would govern the calls Of the deed upon
the familiar principle that where the calls OF
deed are for . land mark, that is well known
and can be identified, the well-known land
mark must govern, and in this case it could not
be presumed that 1t was the intention Of the
grantor to convey away absolutely that wall &c
some other party which he had erected there &c
be used by the two houses in common I thinh
that is a partition wall, and that the building
inspector has the right 10 proceed under thi,
section a. he has been proceeding. Now. whst
II tho result Of these conclusions on this case?
The bill prsys simply for an injunction to en-
join the building inspector from proceeding il
the Police Court to enforce q penalty, which
the building inspector claims that the com
plainant has incurred by failing to comply with
the regulation that he made under subdivisions
8 and Of section 2. Although have reached
the conclusion that that penalty has not been
incurred. at the same time, do not think that
q court OF equity interfere and enjon a
party from proceeding in a criminal prosecu
ton. think that the case that was referred tc
in the argument. the case Of the Washing
against the District. reported in tht
| sixth Of Mackey. is conclusive upor
that question. or course, to grant this injunc.
ton would be in violation OF the principle tina.
as long as party has remedy at law he can
not apply to the court Of equity. and il this
after the party had exhausted his remedy in the
Police Court, but l do not think that thi,
court could interfere at all either in the trial oil
the case or the enforcement OF the penalty oil
that court. / think, therefore, that this re
straining order will have to be dissolved anG
leave the party to his remedy in the Police
Court.