Henne v. Lankershim

ANGELLOTTI, J.

This is an appeal from an order denying plaintiff’s motion for an injunction

pendente

lite, in an action brought by him for a decree perpetually enjoining defendant from constructing a proposed addition of two stories to a party wall, and from making certain proposed opening in the proposed new portion of said wall.

The parties are the owners of adjoining lots in the city of Los Angeles. Each contemplating the erection of a building on his lot, a written agreement was entered into between them, in July, 1896, for the construction by defendant of a party

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wall on the line dividing the lots, one half of said wall to be placed on plaintiff’s lot and one half on defendant’s lot. Under the terms of the agreement, defendant was to construct a wall of certain designated dimensions, varying in thickness from a footing of five feet four inches at the base to twelve inches at the top of the fire-wall, and according to certain specifications. The agreement specified the width of the wall from one story joist to another, to the under side of the fifth-story joist, and thence to the top of the fire-wall. Plaintiff agreed to pay to defendant the aggregate amount of two thousand seven hundred dollars, the same being made payable at various stages of the work, five installments being due when the wall was completed to the first, second, third, fourth, and fifth floor joists, respectively, one when wall was up to ceiling, and the last upon completion of the wall

It was further provided that “When said wall is constructed as aforesaid, the same shall be and remain as a party wall for the use and benefit of the respective parties to this contract, or their heirs, administrators and assigns in perpetuity.”

The agreement further provides that if it should ever become necessary to “repair or rebuild said wall or any portion thereof,” the expense should be borne equally by the parties. The wall was constructed, as agreed, five stories in height, and each of the parties erected upon his lot a five-story and basement building, using said wall therefor. In the year 1902 the defendant, contemplating the addition of two stories to his building was about to add two stories to said party wall, without plaintiff’s consent. He further proposed to leave an opening of about thirty-six feet in length, extending from the bottom to the top of the addition to the wall.