Tate v. Fratt

Belcher, C. The plaintiff and defendant are the owners of adjacent lots, situate in the block bounded by I and J and Third and Fourth streets, in the city of Sacramento, each lot having a frontage of twenty feet on J street and a depth of one hundred feet.

Many years ago brick buildings, then two stories high, but now only one story above the grade of J street were erected on these lots by the grantors of plaintiff and defendant. Up to 1881 defendant’s building extended back from J street only seventy feet,- but in that year it was enlarged so as to cover the whole lot.

The east wall of plaintiff’s building is the west wall of defendant’s building, and by it the joists of both buildings are supported. This wall at its base and extending as high as the present grade of J street is sixteen inches thick, and above that to the ceiling joists it [616]is twelve inches thick, and from there to the top of the fire wall, about four feet, it is eight inches thick, the offset of four inches being on the plaintiff’s side of the wall.

The defendant concluded to add another story to his building, and for that purpose commenced to build up the said eight-inch wall. When he had built it up about six feet the plaintiff brought this action to obtain an injunction restraining him from constructing the new wall or any wall on the old eight-inch wall. It was alleged in the complaint that the plaintiff was the owner of the lot on which his building stood, and of a strip of land along the west-side of defendant’s lot about eight inches in width; that the said wall was wholly on his land and was owned by him; that the wall was not sufficient in strength to support a building higher than his own building; that defendant had commenced to construct, and was engaged in constructing on the top of the east wall of plaintiff’s building, another and additional wall eight inches in thickness, and that he intended to construct the same about fourteen feet high, and make it the west wall of the second story of the building east of plaintiff’s building; and that defendant was constructing the said wall with six openings for windows therein, facing to the west and over the top of plaintiff’s said building.

The defendant by his answer alleged that he was the owner of the west quarter of lot seven, on which his building was constructed, and denied that plaintiff was the owner of a strip of land along the west side of said lot about eight inches or any number of inches wide, or ever had possession thereof; alleged that the wall in controversy stands wholly upon his lot, and no part thereof stands or ever stood upon land belonging to the plaintiff; alleged that neither the plaintiff nor his grantors ever owned the said wall or had any possession thereof, other than such as he or they acquired by using the same to insert therein and rest upon it the floor and ceiling joists and roof timbers of his building and