1. The finding is that the wall in dispute is a party-wall, belonging to plaintiffs and defendants as tenants in common. It is also found that the agreement A has no reference to the plaint wall.
2. The plaint asks that the part of the wall newly raised by the defendants shall be removed, and on the authority of Watson v. Gray L.R. 14 Ch. D. 192 I am of opinion that plaintiffs are entitled to the relief asked for. It is true that the refusal of plaintiffs to give the required permission may be ill-natured and that the raising of the wall will not really harm them; but, at the same time, the altered wall is no longer the same wall and the newly-erected portion will not be a common or party-wall. The erection of it might give rise to inconvenience and quarrels.
3. I would give second plaintiff a decree for removing the portion of the wall newly raised, but as both parties have set up false pleas, I would direct that each pay his own costs throughout.
Subramania Ayyar, J.
4. I was at first inclined to hold that the sound view to take with reference to the point at issue was that adopted in Brookes v. Curtis Gray's Cases on Property, Vol. II pp. 225 226. There the Court of Appeal of New York observe: 'The fairer view and the one generally adopted in legislative provisions on the subject in this and other countries is to treat a party-wall as a structure for the common benefit and convenience of both of the tenements which it separates, and to permit either party to make any use of it which he may require either by deepening the foundation or increasing the height, so far as it can be done without injury to the other. The party making the change, when not required for purposes of repair, is absolutely responsible for any damage which it occasions; but in so far as he can use the wall in the improvement of his own property without injury to the wall or the adjoining property, there is no good reason why he should not be permitted to do so.' On further consideration, however, I have arrived at the conclusion that the better rule to lay down is the simpler one enunciated in Watson v. Gray L.E. 14 Ch. D. 192 since it will compel such of the owners of party-walls as are desirous of adding to, or otherwise materially interfering with, the common property to obtain beforehand the consent of the others interested in it to the change being effected, and consequently is the one less likely to lead to disputes among joint holders of party-walls. I agree, therefore, with my learned colleague in giving a decree to the appellant as proposed.