¶1The following opinion was filed July 8, 1915:
¶2(dissenting). I cannot agree with the majority of the court. I think the judgment below should be reversed for the following reasons:
¶3(1) At the time the party-wall agreement was made the title to the three-foot strip was in defendants, subject to an easement in plaintiff for stairway and hall purposes in common with defendants. (2) The title has never been transferred to plaintiff, unless the party-wall contract and the acts of the parties under it had that effect. (3) There is nothing in the party-wall contract impairing the title of defendants. (4) The party-wall contract recognizes the continuing rights of the defendants as owners subject to the easement in plaintiff. At least there is no relinquishment. (5) The manner of construction of the wall supports the idea that the parties understood that the defendants’ interest in the strip continued. (6) The evidence and manner of construction of the wall rebuts any presumption that defendants relinquished their interest in the three-foot strip. (I) On the admitted facts no rights have been acquired by plaintiff by estoppel, waiver, or acquiescence. (8) I think the defendants are the owners in fee of the three-foot strip subject to the easement in plaintiff. (9) But in any event the defendants are at least tenants in common with plaintiff of the three-foot strip and are entitled to equal enjoyment with plaintiff of all space embraced within the three-foot strip not occupied by stairways, halls, or supports for plaintiff’s building.
¶4Claim was made, but not strenuously pressed, that rights were acquired By plaintiff in the three-foot strip by adverse possession or estoppel. This contention is wholly unsupported by the record and is not made the basis of the decision *207of tbe court. The real contention of plaintiff, and the one upon which the opinion of the court rests, as I understand it, is that the defendants in some way relinquished their rights in the three-foot strip by force of the party-wall contract and the construction of the wall.
¶5In order to support the opinion of this court and warrant an affirmance of the judgment below it must appear that the rights of the defendants in the three-foot strip were relinquished either by the terms of the contract, or by the terms of the contract and the acts of the parties under it. Upon the undisputed evidence neither position can be sustained.
¶6The defendants owned property west of and adjacent to plaintiff’s property, described in a warranty deed to them as follows:
“Commencing in the south line of College avenue and the north line of block five (5) of the Appleton plat in the Second ward, city of Appleton, and seventy-five (75) feet west of the center of said block five (5), and thence running west twenty-three (23) feet, thence south one hundred and twenty (120) feet, thence east twenty-three (23) feet, thence north one hundred and twenty (120) feet to College avenue to the place of beginning. Being same land described in volume 47 of Deeds, page 468. Reserving therefrom the unobstructed right of way for travel with teams over the south twenty (20) feet of the above described land and reserving therefrom the right of way over the east three (3) feet to be occupied and used jointly and forever by and between the two owners of this tract and the adjoining twenty (20) feet east of this described tract.”
¶7The above conveyance covers the three feet in question^ and the only interest which plaintiff had when the party-wall' contract was made was the right of way described in the conveyance to defendants.
¶8Assuming to act under the agreement set out in the statement of facts, the plaintiff in 1897 and 1898 constructed a three-story building upon her property. Although the court found that the building was constructed according to plans. *208and specifications there is no proof that it was so built, unless it can be inferred from the evidence that the building was constructed and that there were plans and specifications. It appears from the record that the wall was not built upon the line described in the contract, but was built upon the following described line: Starting at the east line of defendants’ lot and the west line of the three feet, running south from the north end of the building thirty-two feet, then jogged to the east one and one-half feet, then south thirty-nine feet, then jogged back to the west one and one-half feet to the west line of the three feet, and then ran on said line south to the end of the lot. On each end of this jog thirty-nine feet long and on the west line of the three feet were placed stone abutments upon which rested I-beams to support the wall above. Over these I-beams and on a line with the west line of the three feet the wall was extended through the second to the third story, and I-beams placed in the wall between the second and third stories. Front and rear stairways were built from the first to the second story, and a rear stairway only from the second to the third story.
¶9The defendants constructed their building in 1911, and when they reached the second story the wall on that floor was torn out front and rear to afford defendants access to their offices and to run a stairway in the rear to the third story. The space on the second floor between the front and rear stairways was occupied by toilets in the center, leaving a passageway on each side, the toilets on the west side being for the use of defendants’ tenants and on the east side for plaintiff’s tenants, and doors provided openings for passage to hallways into the offices on either side. Defendants built their own stairway west of the wall from the second to the third floor.
¶10In the construction of their building the defendants attempted to break out the wall north of the rear stairway, claiming the right to the whole or part of the three-foot space *209east of tbe wall and not occupied in common and included in the plaintiff’s inclosure on the third floor east of the wall. The injunction awarded-below restrained such interference.
¶11It appears from the evidence that no wall was called for in the specifications on the third floor, but it was extended directly over the wall on the second floor and on the west line of the three feet, and I-beams constructed therein so that the wall could be removed and the beams remain to support the structure above.
¶12The evidence also shows that blind doors or openings were left in the wall on the second and third floors, and that there was some tali of using the third floor over both buildings as a common hall; also that the beams were placed in the wall on the third floor so that the wall could be removed, leaving the beams for support.
¶13The production of the plans and specifications of plaintiff’s building was demanded by defendants upon the trial below, but they were not produced and no proof made of their contents.
¶14There is no evidence that the defendants consented or agreed that the party wall constructed by plaintiff should be the dividing line between the real estate of plaintiff and defendants, unless it can be said that the contract and acts of the parties under it furnish such evidence. There is no evidence that the defendants acquiesced in the manner of the construction of plaintiff’s building or relinquished their rights in the three-foot strip. The deed in evidence shows title in defendants- of the three-foot strip subject to the easement in plaintiff, and the party-wall contract recites that the plaintiff has “an undivided interest in that strip of land three feet wide east and west, and one hundred feet long north and south, which adjoins said premises on the west, and which strip has been reserved for common use by adjacent owners.” Counsel for plaintiff in their brief say: “But it is undisputed that the rights of plaintiff and defendants in *210and to tbis tbree-ioot strip are equal and tbe same.” This is the most favorable construction to plaintiff that the record will bear. The acts of the plaintiff in constructing the wall seem to indicate that that was her construction of the party-wall contract, because on the first floor the wall in the middle- and between the stairways was constructed in the center of the three-foot strip, and on the second floor the three-foot strip was used in common without objection from plaintiff. So there is nothing in the evidence, aside from the express-terms of the party-wall contract, which tends in the slightest degree to show that the defendants relinquished any of their rights in the three-foot strip.
¶15The opinion of the court seems to be based upon the theory that the following part of the contract has that effect, namely r
“And on the third story there shall be a row of I-beams- and columns for the support of the roof and third-story ceiling, and these columns and I-beams to be built in with masonry so as to form the outside west wall.” . . . “Said foundations, abutments, walls, etc., shall be of sufficient strength to be used for and constitute the west wall of the first party’s brick building she is to erect and also the east wall of any brick building of a like number of stories or less which second parties or their heirs and assigns may hereafter build upon their lot.”
¶16Now, assuming as most favorable to the plaintiff that the defendants were tenants in common with plaintiff in the three-foot strip, these provisions did not transfer to the plaintiff all the defendants’ interest in the three-foot strip on the third floor. The fact that the wall was to be used as the west wall of plaintiff’s building and the east wall of the defendants’ building did not transfer the defendants’ interest in the whole strip to plaintiff, or deprive the defendants of their right to use the space in common with plaintiff in any manner not inconsistent with the easement in the same in the same manner that the first and second floors were used. The manner of construction and the evidence show that there was no relinquishment by defendants of their interest.
¶17*211The decision of this court holds that the party-wall contract and construction of the wall under it had the effect of depriving the defendants of all use of the three-foot strip not occupied by the rear stairway and opening and gives the exclusive use of all the unoccupied space on the third floor over the three-foot strip to plaintiff. This in my opinion is wrong. The defendants cannot he divested of their interest in the three-foot strip by assumption or presumption. Sec. 2302, Stats. The party-wall contract does not convey to plaintiff the defendants’ interest in the land upon which the wall stands, much less the part of the three-foot strip east of the wall. Andrae v. Haseltine, 58 Wis. 395, 17 N. W. 18; Washburn, Easem. & Serv. (3d ed.) 564.