Charles Sargent, C.J.
1. The plaintiffs in this suit are the owners of a house situate in Hornby Row, on land held by them under an agreement made with the Secretary of State for India. The defendants are the owners of an adjoining house built on land which they also hold under an agreement with the Secretary of State, the terms and stipulations of which are precisely the same as those contained in the agreement made with the plaintiff. Under these agreements the plaintiff and defendants were required to erect buildings of a specified description within a certain prescribed time, and it was provided that the buildings to be erected should be 'continuous, with party walls common to both adjoining houses.'
2. Both parties accordingly proceeded to build the houses which now stand on the two plots of land mentioned in the agreements, and they employed the same contractor.
3. The wall in question in this suit is the wall to the north of the plaintiff's house. The defendants have made use of a portion of this wall as the southern wall of their house; but, as their house is not so deep as that of the plaintiff, a considerable portion of the wall, which separates the two properties, has not been required by the defendants in budding their house, and has not been used by them for that purpose. In 1870 a dispute arose between the plaintiff and his contractor as to the amount to be paid for the work. That dispute was not finally settled until the month of August in the year 1878, when the plaintiff paid the contractor the sum found to be due.
4. Until 1880 the plaintiff and the defendants appear to have been on friendly terms, but in that year the plaintiff desired to make openings in the part of the wall which extended beyond the defendants' house. This was objected to by the defendants, and the dispute has resulted in this suit, in which the plaintiff claims either to be paid by. the defendants half the cost of the portion of the wall unused by the defendants, or to be declared the owner of that part, with an injunction restraining the defendants from interfering with him in the enjoyment of it. The defendants deny their liability, and plead limitation, and the first defendant claims a set-off,
5. A decree was made on the 11th December, 1882, by which it was declared that the defendants were severally liable to pay the half of whatever sum the Government surveyor might certify to be due for the construction of the disputed portion of the wall, and that the defendants were entitled to set-off in the calculation of what was due from them, the cost of any work or materials the Government surveyor might find that the first defendant had contributed to the erection of the said wall, and the case was adjourned in order that the decision of the Government surveyor might be obtained.
6. On the 5th April, 1883, Mr. Adams, the Government surveyor, furnished a certificate to the plaintiff's solicitors which certified that, 'in his opinion, the share of the cost to be borne by the defendants (after crediting to them the cost of Porebunder stone work in the front arcade) for the superstructure of that portion of the party wall under dispute was Rs. 44.' In a letter accompanying the certificate he stated that, 'with reference to the foundation, he was unable to decide who was the owner,' and he requested that this question might be settled by a Court of law. A correspondence then took place between the plaintiff's solicitors and the Government surveyor, in which it appears that the certificate related to that part of the wall which was used by the defendants. He was thereupon informed that it was with reference to this unused portion of the wall that his certificate was required, and ultimately on the 2nd March certified the cost of the whole of that part to be Rs. 2,078.
Government surveyor as to what might be due from, one of the parties to the other. The question is not free from difficulty; but, we think, upon the proper construction of Clause 7 of the agreement, the certificate of the Government surveyor was a condition precedent to the right to sue. In construing the clause it is to be borne in mind that the object the Government presumably had in view was to provide a speedy solution for disputes which were tolerably sure to arise out of the term in the agreement requiring the adjacent owners to build with party walls, and, therefore, it is a fair inference that in using the term 'party wall in Clause 7 they are speaking of walls built in pursuance of the provisions of Clause 1. If that be so, the reference of 'disputes as to the cost' of such wall must, we think, have been intended to include all questions as to how such cost should be borne in the event of their being built. Now the wall in question was undoubtedly built as a party wall under the provisions of Clause 1; otherwise it could not have been built equally on Lots 2 and 3, and it is clearly intended to be used by the owner of Lot 2 as a party wall. We think, therefore, that the real question raised by this suit, viz., as to how the cost of this wall should be borne, was intended to be referred to the Government surveyor by Clause 7 of the agreement.
10. That being so, does the agreement to refer, oust the jurisdiction of the Court? Was the certificate of the Government surveyor an antecedent condition to the right to sue? We think it was. In Dawson v. Fitzgerald L.R. 1 Ex, Div. 257 the principle, which determind whether the plea to the action that it was agreed to refer the question to arbitration could be successful, is stated by Jessel, M. R,, with his usual lucidity, 'I take the law as settled by the highest authority, the House of Lords, to be this. There are two cases where such a plea as the present is successful: first, where the action can only be brought for the sum named by the arbitrator; secondly, where it is agreed that no action shall be brought till there has been an arbitration, or that arbitration shall be a condition precedent to the right of action.'
11. Here there is no express covenant or agreement to contribute to the cost of the party wall, but it is left to be implied from the agreement to refer all disputes as to the cost of the party walls to arbitration. In other words, the reference to arbitration was intended to be a condition precedent to a right of action.
12. This view of the clause would appear to have been taken by West, J., in his judgment in Coverji Luddha v. Bhimji Girdhar I.L.R. 6 Bom. 528. We must hold, therefore, that the Court could only pass judgment for Rs. 44 (as certified on the 5th April, 1883, by the Government surveyor) against Coverji Luddha, who was the lessce of Lot 2 when the wall was built.
13. It appears, however, from Mr. Adams' letter of the 5th April, 1883, accompanying the certificate, that this certificate was confined to the cost of the superstructure and defendant's claim for Porebunder stone in the front arcade, and that, as to the foundations, Mr. Adams desired that before giving a certificate it should be determined by a court of law who was the owner of the foundations-meaning, I presume, who built them.
14. In our view of Clause 7 of the agreements Mr. Adams was the person to decide this question as best he could, and as this action has already been suspended at the plaintiff's desire to obtain a certificate, it should be again suspended to allow the defendants to obtain a certificate from Mr. Adams after this expression of our opinion.
15. It remains to consider the plaintiff's claim, to make openings in the part of the wall to the cost of which the Government surveyor has not made the defendants contribute by his certificate. It was said that if the defendants do not share in the cost, it must be regarded as the plaintiff's wall in which he may make any openings he pleases. Although the materials of which it is composed, may be his, still the wall was erected under the provisions of the agreement; and although the owner of Lot 2 was obliged to allow it to be built partly on his land, it was only for the purpose of its being used as a party wall. That it should be used for a purpose inconsistent with the idea of its being a party wall, would be opposed to what must be understood to have been the true intention of the parties to the agreement whether of Government or of the lessees. It would be contrary to the reasonable intention of the parties that the plaintiff should acquire the full right of ownership over the wall as if it had been built on his own ground.
16. We must, therefore, refuse to make the. declaration prayed for, or grant an injunction against the defendants.