Duer v. Fox

In the absence of expressive language charging s lien upon the land, only those obligations in regard to a party wall which flow from the user of the structure can be deemed in the nature of covenants running with the land, as creating a' privity of estate in contrast with a privity of personal contract. Thus the obligation to maintain the wall, keep it in repair, and suffer its use in the support of present and future buildings, may well be deemed appurtenant to the respective estates and essential beneficial rights in privity and co-extensive servitudes, while the personal obligation to pay a part of the original cost of the party wall may rest only in privity of contract, and remain purely a chose in action without security. Continuous uses and servitudes are transmitted by conveyances without restrictions, while the personal right of collection for the cost of the original wall would not pass from the constructing grantor to his grantee. Sebald v. Mulholland, 155 N. Y. 455 , 50 N. E. 260 ; Mott v. Oppenheimer, 135 N. Y. 312 , 31 N. E. 1097 . That portion of the party wall constructed upon a lot belongs to the owner, subject only to those rights of user for the purposes of the adjoining lot which are inferable from the purpose of its mutually beneficial construction, and the land is freed from, other obligation except by direct contract, imposing a lien. In the year 1897, Hobart and Thompson owned adjoining lots on the western side of St. Yicholas avenue, in the city of New York. Hobart erected a party, wall, presumably finding it advantageous to widen the free use of the space inclosed between his outside wall and the party wall in question, by placing a portion of the latter on the adjoining premises. Thereafter he made a recorded agreement with Thompson, which recited that Hobart had, with the consent and at the request of Thompson, erected such wall partly on each lot, and by which the parties agreed that Thompson might, upon paying $500 to Hobart, use such wall, and the same-should thereupon become a party wall, and so remain as long as it should stand. The repairs were to be at the expense of the parties equally. It was further agreed that no title to any land should be deemed to be conveyed to either party by the agreement, and that when the wall should be removed, the land on which it stood should belong to the parties in the same' manner as if the wall had never been built. Thompson had the right to close the windows, openings^, or recesses when he pleased, and the parties, for themselves, their heirs, executors, administrators or assigns, further agreed that either of them, his heirs, or assigns, or any subsequent owner of either of the lots, might add to the height of the wall, or extend the same in the rear, and, in case the owner of either of the lots should at any time add to the height or extend in the rear, the owner of the other lot, upon making use of such addition or extension, should pay one-half of what it then would cost him to construct the same to the person who originally made the same, or his assigns, and the amount so> to be paid should become a lien and charge upon the lot of the party