Meyer v. Metzler

By the Court: The entire west wall of the defendant’s two-story brick building, both that portion of it erected in 1856 and the northerly portion of it erected'some five years later, leans to the west of a perpendicular line, and projects over the one-story wooden building of the plaintiff, which adjoins it on the west. The greatest projection—upwards of eight inches—is at the southeast corner of plaintiff’s building.

At the northern termination of the west wall of the old building the projection is some five and one-half inches. It appears that the new portion of defendant’s building—that commencing to' the northward and rear of the old building—was purposely built to lean over the building of the plaintiff, so as to make its line conform to the west wall of the old building, which had toppled to the west, in consequence of the fire of 1856, or some other cause.

The court below, notwithstanding this condition of the west wall of the defendant’s building, was of opinion, and accordingly found the fact to be, that the west wall and the entire building of the defendant are safe and secure, and not liable to fall or endanger the plaintiff’s building. But even if this conclusion be accepted, we are of opinion that the judgment is wrong upon other grounds. It is found as a fact that the projection of the defendant’s west wall prevents the plaintifffrom raising and repairing his oiun building, which improvement it is also found that he is desirous of making. This in itself certainly amounts to an obstruction to the free use of the plaintiff’s property, and one which interferes with its comfortable enjoyment by him, and is therefore a nuisance, as defined by section seven hundred and thirty-one, Code of Civil Procedure.

The maintenance by the defendant of the west wall of his building, in the condition in which it is, is an unwarrantable use of his property which works an injury and obstruction to the right of the plaintiff to enjoy his own property, producing thereby such material annoyance, discomfort and inconvenience as, in law, imports damage to the plaintiff.

[145]Judgment reversed and cause remanded, with directions to render judgment upon the findings not inconsistent with this opinion.