ests in the real estate will be in proportion to their contributions of capital. Molineaux v. Raynolds, 54 N. J. Eq. 559 (35 Atl. Rep. 536).

PARTY WALLS.

EPITOME OF CASES.

Sec. 634. As to what constitutes a party wall. In a recent case the supreme court of Connecticut reviews the authorities and holds that in the absence of some statute, a strict party wall can exist only by prescription or by contract express or implied. Whiting v. Gaylord, 66 Conn. 337 (34 Atl. Rep. 85; 50 Am. St. Rep. 87). It is not necessary that a party wall shall stand half upon each of the adjoining parcels of land. It may stand half upon each or wholly upon one, and may or may not be the common property of the two proprietors. Tate v. Fratt, 112 Cal. 613 (44 Pac. Rep. 1061). A division wall may become a party wall by agreement, either actual or presumed; and although such wall may have been built exclusively upon the land of one, if it has been used and enjoyed in common by the owners of both houses for a period of twenty years, the law will presume, in the absence of evidence showing that such use and enjoyment were permissive, that the wall is a party wall. In such cases the law presumes an agreement between the adjacent owners that the wall shall be held and enjoyed as the common property of both. Barry v. Edlavitch, 84 Md. 95 (35 Atl. Rep. 170; 33 L, R. A. 294).

Sec. 635. Party walls by prescription. In order to establish a party wall by prescription, it is essential that the use be adverse, so much so as to give a right of action in favor of the party against whom it has been exercised; and that the right to the use of a wall does not pass as an appurtenant to the land, unless such easement be open, visible, continuous and necessary to the enjoyment of the estate granted or retained.

Whiting v. Gaylord, 66 Conn. 337 (34 Atl. Rep.

85; 50 Am. St. Rep. 87). The right to use a wall as a party wall which has been acquired by prescription, is an appurtenance which passes by deed even though the word " appurtenant" be not used. Barry v. Edlavitch, 84 Md. 95 (35 Atl. Rep. 170; 33 L. R. A. 294). One who has acquired the right to use a wall as a party wall by adverse possession of the same, cannot object to the owner building the wall up higher and placing windows therein, or making other changes so long as he does not invade the rights of the owner of the dominant estate. The presumed grant does not extend further than the user in which the owner has acquiesced. Barry v. Edlavitch, 84 Md. 95 (35 Atl. Rep. 170; 33 L. R. A. 294).

Sec. 636. Contracts concerning party walls. Where a party by written contract, obtains the right to place joists in, and otherwise build into and against a wall, and otherwise use the same as a party or division wall, he thereby acquires the right to build on such wall. Dorsey v. Habersack, 84 Md. 117 (35 Atl. Rep. 96). Where a wall resting equally upon the lands of adjoining owners has been erected to the height of two stories under a contract making it a party wall, a continuation of the wall upward by one owner must be made as a party wall, although the adjoining owner acquired title from the owner making the continuation under a deed containing a condition forbidding him from erecting buildings exceeding two stories in height. Fidelity Lodge v. Bond, 147 Ind. 437 (45 N. E. Rep. 338). An agreement for the construction of a wall in common by joint property owners, to the height of three stories on the land of one, does not justify the assumption that the other party may, of his own motion, and for his own sole benefit, extend said wall upward still another story, irrespective of a therefrom threatened easement ripening, or of injury likely to result to the property adjacent. The adjacent property owner whose rights and estate are threatened by the proposed erection about to be made by the other, as above indicated, is entitled to the protection afforded by an injunction. Calmelet v. Sichl, 48 Neb. 505 (67 N. W. Rep. 467; 58 Am. St. Rep. 700). For construction of party wall contract depending upon particular facts, see Palmer v. Evangelical

Baptist B. & M. Soc., 166 Mass. 143 (43 N. E. Rep. 1028).

Sec. 637.

Rebuilding party wall. One who is clothed with the right to rebuild a party wall is not liable for the inconvenience and damage necessarily imposed upon his adjoining neighbor, but he is responsible for any exaggeration of these necessary damages which by any diligence could have been prevented. The party building is bound to replace the neighbor at the end of the work, in a position equal in every respect to that which he occupied in the beginning and furnish him with a wall fit and adequate to support his building without injury. Levy v. Fenner, 48 La. 1389 (20 So. Rep. 895).

Sec. 638. Miscellaneous notes. It seems to be a settled law that where there is a party wall, each of the owners may increase the height thereof when it can be done without injury to the adjoining building, and without impairing the value of the cross-easements to which the adjoining proprietor is entitled. Tate v. Fratt, 112 Cal. 613 (44 Pac. Rep. 1061). Citing, Brooks v. Curtis, 50 N. Y. 339 (10 Am. Rep. 545); Graves v. Smith, 87 Ala. 450 (6 So. Rep. 308); Everett v. Edwards, 149 Mass. 588 (22 N. E. Rep. 52). The Iowa Code, § 2019, is as follows: "In cities and towns and other places surveyed into building lots, the plats whereof are recorded, he who is about to build contiguous to the land of his neighbor, may if there be no wall on the line between them, build a brick or stone wall at least as high as the first story, if the whole thickness of said wall above the cellar wall does not exceed eighteen inches, exclusive of the plastering, and rest one-half of the same on his neighbor's land; but the latter shall not be compelled to contribute to the expense of said wall." It is held that this statute does not authorize the building and maintenance of a stone wall with one-half on the lot of the adjoining owner by one who simply intends at some time in the future to build a brick super-structure thereon. Switzer v. Davis, 97 Ia. 266 (66 N. W. Rep. 174).

PLATS AND SURVEYS.

EPITOME OF CASES.

Miscellaneous notes.

The vacation by the

Sec. 639. owner of a plat of an addition to the city, the land being within the corporate limits, does not ipso facto disconnect the land platted from the corporation. Kershaw v. Jansen, 49 Neb. 467 (68 N. W. Rep. 616). Minn. Gen. Stat., 1894, § 2315, applied -judgment vacating plat-recording. Kiewert v. Anderson, 65 Minn. 491 (67 N. W. Rep. 1031; 60 Am. St. Rep. 487). A survey made by the proper officers of the United States and confirmed by the land department, is not open to challenge by any collateral attack in the courts. Colorado Fuel Co. v. Maxwell Land Grant Co., 22 Colo. 71 (43 Pac. Rep. 556). Citing, Maxwell Land Grant Case, 121 U. S. 325 (7 Sup. Ct. Rep. 1015); Beard v. Federy, 3 Wall 478; More v. Steinbach, 127 U. S. 70 (8 Sup. Ct. Rep. 1067); Russell v. Land Grant Co., 158 U. S. 253 (15 Sup. Ct. Rep. 827). Where on account of the change of the names of streams mentioned in a survey it is impossible to locate them, contemporary maps and surveys may be resorted to for the purpose of identifying them. Kain v. Young, 41 W. Va. 818 (24 S. E. Rep. 554). Minn. Laws, 1895, ch. 249, providing for the location of section and quarter section corners by the county surveyor on the application of the resident owners of the section, is unconstitutional, for the reason that it deprives the landowners of their property without due process of law, no provision being made in the statute for notice to any of the landowners of the time when the work is to be done. Davis v. Board of Com'rs, 65 Minn. 310 (67 N. W. Rep. 997; 33 L. R. A. 432; 60 Am. St. Rep. 475). U. S. Rev. Stat., §§ 2395, 2396, construed and applied-survey of townships 37 and 38 touching Lake Michigan and Wolf Lake. Kean v. Roby, 145 Ind. 221 (42 N. E. Rep. 1011). As to rules for establishing section corners in government survey of public lands see Holler v. Emerson, 112 Cal. 573 (44 Pac. Rep. 1073). Rules where line

of survey encounters impassable or unsurmountable objects. Stack v. Pepper, 119 N. C. 434 (25 S. E. Rep. 961).

POSSESSION.

6

EPITOME OF CASES.

Sec. 640. As to what is peaceable possession-Quieting title. The New Jersey Statute, 3 Gen. Stat., p. 3486, provides that an action to quiet title may be maintained "when any person is in peaceable possession of lands * * * claiming to own the same." Construing and applying this statute it is held that peaceable possession may be established by the proof of such acts of ownership as the nature and situation of the property would admit, and that such possession need be peaceable only so far as the defendant was concerned. Allaire v. Ketcham, 55 N. J. Eq. 168 (35 Atl. Rep. 900). The court say: "If by peaceable' is meant quiet and peaceable as to every trespasser, whether claiming title or not, then the possession cannot be said to have been altogether peaceable, for the trespassers whom complainant ordered off disturbed this peaceable possession. But I think the true construction of the statute is that the possession must be peaceable as against the defendant. And, further, it seems to me that in determining whether the possession, as to the defendant, is peaceable, the test must be whether the defendant setting up a claim of title has interfered with complainant's possession by an act which is suable at law, and suit upon which will or may involve the title of the defendant."

Sec. 641. Possession as notice. Possession is notice of whatever rights may exist in the person holding possession. Monroe v. Hanson, 47 Neb. 30 (66 N. W. Rep. 12); Kansas City Inv. Co. v. Fulton, 4 Kan. App. 115 (46 Pac. Rep. 188); Lowe v. Turpie, 147 Ind. 652 (44 N. E. Rep. 25; 37 L. R. A. 233); Cooper v. Thomason, 30 Ore. 161 (45 Pac. Rep. 296). Possession of a part of a building by one having a contract of purchase for the whole is notice of his rights under