Bank of Escondido v. Thomas

BELCHER, C. The plaintiff is a corporation engaged in the business of banking. In 1887 it acquired the title to, and erected a two-story brick building on, a lot in the town of Escondido, county of San Diego. The defendants owned the two adjoining lots on the west, and shortly after the completion of the bank building they commenced the erection of a two-story brick building thereon, and completed the same early in 1888. To lay the foundation for the west wall of its building, the plaintiff excavated a trench three feet deep and three feet wide, which extended over its line, and upon defendants’ land, eleven and one-half inches. In this trench the foundation was laid, covering the whole space at the bottom, but narrowing toward the surface of the ground. The wall erected on this foundation was thirteen inches thick, and it projected over the plaintiff’s line to the extent of one-half inch at the ground, one and one-half inches at the second floor joists, and two and one-half inches at the top joists. When defendants were erecting their building, they claimed the right to use the plaintiff’s wall as a party-wall, and they inserted therein the joists for each of the three, floors of the building, and also plastered the wall without lathing. They also, with plaintiff’s consent, cut a doorway through the wall, on the second floor, so that free passage might be had between [96]the said buildings. After the opening of this doorway the plaintiff was required to pay an additional rate of insurance on its building by reason thereof, and it claimed that defendants should pay such increased insurance, which they did for about a year. Then they put an iron door in the opening, after which no increased insurance was charged. By. design, the defendants’ building, in finish and general appearance, was made the same as the plaintiff’s building; and when finished the two together presented “the appearance of virtually a single building,” and ever since they have been known as the “Escondido Bank Block.” Later—sometime in 1892, it would seem—the plaintiff, by one of its directors, presented to the defendants a bill for $300, “for materials and work in partition wall.” The bill was not paid, and thereupon, in June of that year, plaintiff commenced this action, alleging “that it is the owner and entitled to the possession” of its described lot of’land; that defendants, and each of them, claim some estate or interest in said real property adverse to the plaintiff; and that their claims are without right—and praying that it be adjudged that defendants have no estate or interest whatever in or to said real property, or any portion thereof, and- tha't they be forever enjoined from asserting any claim to the same adverse to the plaintiff. By their answer the defendants disclaimed any right, title, or interest in the land described in the complaint, except the right to use the said wall as a party-wall. The ease was tried, and the court found, among other things, that the west wall of plaintiff’s building was erected, extending over the dividing line of the lots, as before stated; that, with the knowledge and consent of plaintiff, the defendants inserted the joists of their building into the said' wall, and used the same as a party-wall, and that no objections were at any time made by the plaintiff to such use, until the commencement of this action; that said wall is, and since the construction of defendants’ building has been, a party-wall, and that plaintiff agreed with defendants that they might use it as such; that, with the consent of plaintiff, the defendants caused a doorway to be opened through the said party-wall, and afterward, to save extra insurance, placed an iron door therein, as above stated; and that defendants claim no interest in the lot of plaintiff, except for the support of said wall, and their right to use the same as a party-wall. Judgment was accordingly' entered that de