There is at common law no right to build a party wall over a neighbor's land: Barlow v. Norman, 2 W. Bl. 959; Bloch v. Isham, 7 Am. Law. Reg., N.S. 10; Weston v. Arnold, L.R. 8 Chan. App. 1084.
The encroacher's foundation wall extended over the neighbor's property by one and three-eight's inches for a length of fifty feet. The encroacher contended that it should be permitted to enter the neighbor's land to remove the wall. The neighbor objected to paying one half of the costs. The court affirmed the judgment and permitted the encroacher one year to remove the wall. The court held that the encroacher had no choice but to remove the wall as ordered because the encroacher was trespassing on the neighbor's property. The court also affirmed the allocation of costs because it was within the trial court's discretion to allocate the costs.
Is the encroachment considered a party wall?
The court held that the wall in controversy was not a party wall. It was not intended to be. The defendants were building a factory and under the advice of their architect decided to build within their own lines in order to avoid the danger of injury to others from vibration which might result from the use of their machinery. They called upon the district surveyor to locate their line and built within it as so ascertained. Subsequent surveys by city surveyors have determined that the line was not accurately located at first but was about one and a half inches over on the plaintiffs' property. This leaves the ends of the stones used in the foundation wall projecting into the plaintiffs' lands below the surface one and three eighths inches. This unintentional intrusion into the plaintiffs' land is the narrow foundation on which this bill in equity rests.