Ailisa Sobien and Frank Sobien v. James Mullin

1 Appellant, James Mullin, appeals from the judgment entered on the
jury verdict finding him liable for the cost incurred by Appellees, Ailisa and
Frank Sobien (the Sobiens), in re-framing and siding their end wall, which
had become exposed to the elements due to Mr. Mullin’s removal of his
condemned building. On appeal, Mr. Mullin claims the trial court erred in
refusing his request for a judgment notwithstanding the verdict (JNOV). We
reverse and remand.

2 This case involves party wall rights between adjoining landowners in
the City of Pittsburgh, Allegheny County, Pennsylvania. The relevant facts
are not seriously in dispute. Mr. Mullin has owned the lot located at 876
Progress Street for the past twenty-five years. The Sobiens purchased the
adjoining lot numbered as 874 Progress Street in 1995. The buildings on
the respective lots date back to the early 1900’s. The building on Mr. Mullin’s lot was built first, and its brick side wall adjacent to the Sobiens’ lot
was constructed wholly within Mr. Mullin’s property line. The original owner
of the Sobiens’ lot built their residence in such a manner that the interior
framing of their north wall butted up against Mr. Mullin’s brick wall using it
as a curtain or firewall and thereby encroached upon Mr. Mullin’s property.
The structural weight bearing wooden beams ran from front to back, and
there was no tie into Mr. Mullin’s side wall. The parties were unable to
determine whether at the time of this construction the lots were owned
individually or by the same person. However, this information was
unnecessary in deciding whether the wall was intended as a party wall
because the Sobiens alleged they had acquired prescriptive rights to the
continued use of the wall as a protective wall.

3 On August 29, 1996, Mr. Mullin posted his building with a notice of
intent to demolish and the requisite permit obtained. On September 30,
1996, demolition of Mr. Mullin’s building began pursuant to the City’s notice
of condemnation. During the demolition work it was first discovered that the
Sobiens’ adjacent wall did not have any exterior finishing material. After
having removed the upper floor of the Mullin building the Sobiens’ third floor
attic became exposed to the elements. At this point the Sobiens called the
police, who directed the contractor to cover the third floor with a tarp and
notified the Bureau of Building Inspection. The following day a building
inspector visited the site and determined the brick wall could not remain standing independent of the building and directed the work to proceed.
After a three day delay to allow the Sobiens to remove their possessions, the
demolition of the entire building was completed. Subsequently, the Sobiens
hired a contractor to rebuild their exterior wall within their property line.
The total cost of repairs was $33,620.61, which consisted of cutting back the
framing to within the Sobiens’ property line, enclosing the wall and making
various repairs to the interior of the structure.

4 The Sobiens instituted suit to recover the cost of repairs alleging the
acquisition of party wall rights through prescriptive use for more than
twenty-one years. The complaint also alleged that Mullin negligently
demolished the party wall and thereby deprived the Sobien structure of the
support and protection it had received from the wall. Mullin filed an answer
denying any liability and also a two count counterclaim seeking damages
from the Sobiens. In Count I, Mullin sought damages for the allegedly
unnecessary delay in the demolition of Mullin’s structure caused by the
Sobiens’ complaints to the City of Pittsburgh. In Count II, Mullin sought
compensation for labor and materials expended in enclosing the third floor of
the Sobiens’ property. By stipulation of counsel, Count II of Mullin’s
counterclaim was withdrawn, and Mullin proceeded only with Count I at trial.

5 A jury trial was held before the Honorable Cynthia A. Baldwin on
February 7, 2000. At the conclusion of the Sobiens’ case, Mullin moved for a
directed verdict, asserting that the Sobiens had failed to demonstrate the existence of a party wall, that no proof of an interest acquired by adverse
possession had been shown, that no structural interdependence had been
shown, and that an absence of negligence had been conceded. Mullin also
took issue with the Sobiens re-introducing the settled matter of repairs to
the third story. The motion was denied. The jury subsequently returned a
verdict in favor of the Sobiens on their claim awarding $33,621.61 in
damages. The jury also returned a verdict in favor of the Sobiens on Mullin’s
counterclaim. Mullin filed a timely Motion for a Post-Trial Relief seeking
Judgment N.O.V., or in the alternative, the grant of a new trial. The Sobiens
filed a timely Motion for Delay Damages. Following the submission of briefs,
the trial court entered an order dated May 31, 2000, which denied Mullin’s
Motion for Post-Trial Relief and granted the Sobiens’ Motion for Delay
Damages in the amount of $3,475.29 for a total award of $37,096.90. This
appeal followed.

6 Mullin presents his questions on appeal in a single statement as
follows:

Did the [trial] court … err in failing to grant a directed
verdict or judgment n.o.v. when plaintiff failed to prove
any of its original allegations, altered the theory of its case, and proceeded on a theory of strict liability and a
concept of adverse possession not supported by the law?

* * *

Where a wall is built completely on the land of the builder,
without the intention to give it the quality of a party wall, it is a division wall,
and the laws regulating party walls do not apply to it. Benner v. Pollard,
53 Pa. Super. 227 (1913). A party wall has also been defined as follows:

A party wall may be defined generally as a wall located
upon or at the division line between adjoining landowners
and used or intended to be used by both in the
construction or maintenance of improvements on their
respective tracts, or, more briefly, as a dividing wall for the
common benefit and convenience of the tenements which
it separates. The term ‘wall in common,’ as sometimes
used, has the same meaning as party wall. A distinctive
feature of a party wall is that the adjacent buildings are so
constructed that each derives its support from the common
wall. Thus, where each of two persons is seised of a
specified half of a wall and nothing more, and no right of
support or shelter has been acquired by the one from the
other, such a wall is not a party wall.

40 Am. Jur. Party Walls § 2 at 485 (1942). However, such a division wall
may take on the character of a party wall by prescriptive use. See Bright v.
Morgan, 218 Pa. 178, 67 A. 58 (1907) (stating “ a wall erected and
continually used as a division wall by adjoining owners for 21 years is a
party wall, even though it does not rest on the division line, but is wholly
within the land of one of the adjoining owners.”).

8 Under the undisputed facts here presented, the wall in question was
wholly upon Mullin’s property and thus not a true party wall as contemplated by statute. Nor was there a scintilla of evidence of any express grant or
intention to treat it as a party wall by the builder. Thus, the Sobiens’ right
to use Mullin’s wall was wholly dependent upon the finding of a prescriptive
easement. “A prescriptive easement is a right to use another’s property
which is not inconsistent with the owner’s rights and which is acquired by a
use that is open, notorious, and uninterrupted for a period of twenty-one
(21) years.” Soderberg v. Weisel, 687 A.2d 839, 842 (Pa. Super. 1997)
(citing Waltimyer v. Smith, 556 A.2d 912 (Pa. Super. 1989)).

9 Mullin first contends the evidence was insufficient to support a finding
of a prescriptive right to use the wall because this use was not apparent.
The record belies this contention. It is conceded that Mullin’s structure was
built first and then the Sobiens’ home subsequently constructed. Further,
the Sobiens’ expert opined that their home was built in such a fashion that
the interior framing of their north wall encroached upon Mullin’s land and
butted up against his brick wall. He also estimated the structures existed in
this condition since the early 1900s. If this were a suit between the original
owners of the buildings it may be conceded that the original owner of
Mullin’s building must have known of the acts of the Sobiens’ original owner
and the use of the wall made when the building was erected. However, here
each lot has changed hands since these structures were built. Thus, the
question becomes whether Mullin as a subsequent purchaser had notice of
the alleged easement. In other words, could Mullin as a prudent purchaser exercising his power of observation see that the property he was about to
purchase was burdened with an easement? See Vanderwerff v.
Consumers Gas Company, 71 A.2d 809, 811 (Pa. Super. 1950) (stating “A
use must be apparent to be the subject of an implied easement on the
severance of ownership. Such use however, need not be plainly visible; it is
apparent when it may be discovered upon reasonable inspection.”). If the
use was apparent a presumption of an unqualified grant arises placing the
burden on Mullin to prove the use was under license, indulgence or special
contract inconsistent with the claimed right by the prescriptive user.
Steigelman v. Pennsylvania Yacht Club, Inc., 432 Pa. 111, 246 A.2d
116 (1968). In this respect the Sobiens’ expert testified the front brick
facade at the second story was tied together in a continuous fashion while
the first floor gave the appearance of separate walls. Moreover, Mullin made
no attempt to prove the use was under license, indulgence or special
contract. While scant, we find the evidence sufficient to raise a jury
question concerning the apparent nature of the use. Consequently, we will
not disturb the jury’s finding in this regard.

10 Alternatively, Mullin argues even if sufficient to establish a prescriptive
easement he was, nonetheless, within his rights in removing the wall
provided he did not do so negligently. Accordingly, since no evidence of
negligence was proven, or even submitted to the jury, he therefore
maintains he should not have been liable for the costs of rebuilding the wall. Based upon a careful analysis of the pertinent law regarding party walls and
prescriptive easements, we agree that under the circumstances here present
there was no duty to rebuild this wall.

* * *

Click the case caption above for the full text of the
Court's opinion.

Reversed and remanded.

Unknown

Unknown