by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
The comment here is by Daryl Wilson, professor at Nova Law School, who is the ABA reporter for cases in the Northwest Reporter system.
EASEMENTS; SCOPE; PARTY WALLS: Contiguous proprietors of a party wall are restricted to uses of the wall which are of common and mutual benefit. Covert v. Richards, 535 N.W.2d 701 (Neb. 1995).
The plaintiff successfully enjoined the defendant from erecting a pitched roof and gutter system on her half of the party wall separating the adjoining buildings. The defendant had sought the construction in hopes of eliminating leaks affecting her premises due to the flat roof. The court noted that the jurisdiction had rejected the English rule in favor of the common American view that party wall owners were not tenants in common but instead owned in severalty the portion of the wall on their respective properties. The owners also enjoyed reciprocal easements of support as to the wall portions on the other party's land. The court then looked to precedent from outside the state to reach its conclusion that one owner's use of the party wall is limited by considerations of the uses available to the other. Since the roof and gutter system was only to the benefit the proprietor suffering the leaks the court felt the use could not be allowed.
Reporter's Comment: The court appears to fall into a circular reasoning trap arising from the failure to realize that one owner's benefit is another owner's burden. In essence, under the ruling, party wall owners can only act in instances where there is an agreed problem which needs resolution. For it is certain that any time one contiguous proprietor feels some matter needs attention relative to his/her property and acts accordingly, it can be argued that there is no "common" benefit and vice-versa.
The court implies as well that the resolution to the agreed problem must also be agreed upon. Such requirements may be exceedingly difficult to satisfy. Furthermore, the opinion may be read as exerting at least a limited taking of a recognized property interest by failing to acknowledge an ownership interest in severalty of the space above a party wall. Instead of demanding mutual benefit a more logical approach appears to be one demanding assurances of no harm to the contiguous proprietor complete with a exclusive lists of exemplary harms that are actionable and those that are not.
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