of bricks and rubbish upon the plaintiff's close, by means of which several premises the wall of the plaintiff had been and was greatly weakened and injured, &c. Plea, Not guilty. At the trial before Alexander, C. B., at the Summer Assizes for the county of Norfolk, 1826, it appeared that the plaintiff was the occupier of a cottage and garden, as tenant to one Mr. Doman. They had formerly been the property of the plaintiff's father. The defendant was the owner of premises adjoining those occupied by the plaintiff, and separated therefrom by a wall, part of which the defendant, in July, 1825, had pulled down, and erected on the site of it another wall (of a greater height than the old wall), with a cottage and other buildings against it, and the present action was brought, after the new wall had been rebuilt, to try the right of property in that wall. There was evidence on both sides of various acts of user of the wall by the respective owners of the plaintiff's and defendant's premises. The Lord Chief Baron, upon this evidence, told the jury to find for the defendant, if they thought the wall was his, or if, from the common user of the wall by the respective owners of the plaintiff's and defendant's premises, they believed the plaintiff and defendant had a common property in it. The verdict returned by the foreman of the jury was: "We find this to be a party wall." The Lord Chief Baron said, That is a verdict for the defendant. After the jury had separated, the plaintiff's counsel observed, that the wall might be a party wall, and yet the plaintiff and defendant might not be tenants in common of it, or of the land on which it was built; for if each of the proprietors of the two estates contributed the site of the land on which it was built in equal moieties, or had contributed in proportion to the expense of building it, each of them would remain the owner of a moiety of the wall, and might maintain an action against the other for any injury done to that moiety. Storks, Serjt., in Michaelmas Term, 1826, obtained a rule nisi for a new trial, upon the ground, first, that the attention of the jury had not been drawn to that distinction, and that it might, therefore, be true that the wall was a party wall, and yet this action would be maintainable. Secondly, assuming that the verdict established that they were tenants in common of the wall, and of the land on which it was built, still the action was maintainable, because there had been a destruction of the subjectmatter of the tenancy in common by one of the two co-tenants. Robinson and Wallinger now showed cause.

the same

Storks, Serjt., and F. Kelly, contra.

BAILEY, J. I am of opinion that the rule for a new trial ought to be discharged. This was an action for pulling down the plaintiff's wall. If the wall was the exclusive property of the plaintiff, then the act done by the defendant was a sufficient ground for the action. If it was entirely the property of the defendant, then he was justified in doing There was a third view of the case, and that was the view taken of it by the Lord Chief Baron at the trial, viz., that it might property of the plaintiff and defendant. The question

what he did.

be the common

VOL. II. - - 14

The Lord
Until the

left to the jury was, Whether from the common use of the wall they would not infer that it was common property? Now there was certainly very strong evidence of common use, and the nature of the right may be collected from the manner in which a thing has been used. The jury found that it was a party wall; they did not in terms find that it was common property; but on having the question whether it was common property put to them, they found it was a party wall. Chief Baron observed, this was a verdict for the defendant. jury had separated, no observation was made upon the subject of the direction of the judge, or upon the answer of the jury on that point. And I think it is too late, on a motion for a new trial, to suggest that the case might have been differently presented to the consideration of the jury; and that if that had been done, the verdict might have been different. The probability is against the existence of that state of things which would have justified a verdict for the plaintiff, even on that view of the case, which was not presented to the consideration of the jury. Where a wall is common property, it may happen either that a moiety of the land on which it is built may be one man's, and the other moiety another's, or the land may belong to the two persons in undivided moieties. It does not appear whether at the time when this wall was built the land belonged wholly to one individual. It might at that time have belonged entirely to one, and then he might have sold off a part; or he might have sold an undivided moiety of the wall with the land on one side, and an undivided moiety of the wall with the land on the other side. If the land on which the wall was built belonged on one side to one party, and on the other to the other party, and they between them agreed to build the wall, it would have been prudent at least to make this bargain, that so long as there was to be a wall continuing on this property, the land on which it was built, and the wall which stood upon that land, should be taken and considered to be the common property of the two, and that the owners of the estates on each side should be tenants in common of the undivided moiety of that land and of that wall; with the power of adopting such remedies for partition as tenants in common may adopt. On the other hand, if the wall stood partly on one man's land, and partly on another's. either party would have a right to pare away the wall on his side, so as to weaken the wall on the other, and to produce a destruction of that which ought to be the common property of the two. It seems to me, the probability of the case is, that this was not a party wall according to the principle which was acted upon in the case of Matts v. Hawkins, 5 Taunt. 20, but that it was a wall built on the common property of the two, and that the wall was the common property of both. Matts v. Hawkins naturally led to a different conclusion; for under the Party Wall Act, each is to contribute the land for that which is to be built on the common soil of the two. If the land is to be contributed by the parties in equal proportions, it may be a probable consequence (I do not say whether it is or not) that the wall belongs one half to the one,

and the other half to the other; but that, as it seems to me, in the country where the Party Wall Act does not apply, is such an improbable state of things, that we ought not to send it down again to a new trial on the ground that that view of the case was not presented to the consideration of the jury, when at the trial it was not desired by the counsel that it should be so presented to them.

Then, the next point is, whether, assuming that the land on which this wall was built, and that the wall itself, was the common property of the two, the act done by the defendant entitled the plaintiff to maintain trespass. It has been contended that trespass is maintainable, on the ground that there was a destruction of the thing, and that if one tenant in common destroy that which is the subject of the tenancy in common, that is an actual ouster and expulsion by the one of the other, and that the party so expelled may maintain an action of trespass for what has been done in that respect. Perhaps if one had entirely destroyed the wall, that might have been a foundation for an action of trespass. But I take it, that in the case of a wall, a temporary removal, with a view to improve part of the property on one side at least, and, perhaps, on both, is not such a destruction as will justify an action of trespass. There is no authority to show that one tenant in common can maintain an action against the other for a temporary removal of the subject-matter of the tenancy in common, the party removing it having at the same time an intention of making a prompt restitution. It was not a destruction; the object of the party was not that there should be no wall there, but that there should be a wall there again as expeditiously as a wall could be made. But then it is said the wall here is much higher than the wall was before. What is the consequence of that? One tenant in common has, upon that which is the subject-matter of the tenancy in common, laid bricks and heightened the wall. done further than it ought to have been done, what is the remedy of the other party? He may remove it. That is the only remedy he can have. If there be land belonging to two as tenants in common, and one builds a wall on that land, the other cannot bring trespass, because he is excluded from the surface of that ground for a certain period of time, viz., for so long a period as that wall stands. This case falls within the principle acted upon in Wiltshire v. Sidford, 8 B. & C. 259. The view in which it was presented to the jury by the Lord Chief Baron was the right view of it. There was evidence of a common user by both parties, which justified the presumption either that the originally built, on land belonging in undivided moieties to the owners of the respective premises, and at their joint expense; or that it had been agreed between them that the wall and the land on which it stood should be considered the property of both as tenants in common, so as to insure to each a continuance of the use of the wall. For these reasons I am of opinion that this rule ought to be discharged. HOLROYD, J. I am of opinion that this rule ought to be discharged. It is incumbent on the plaintiff to establish his right of action.

wall was

If that be

The

declaration in this case was for pulling down the old wall and building the new one. The presumption arising from the acts of enjoyment is, that the wall was the property of the plaintiff and defendant as tenants in common; for the law will presume that what was done without opposition for a considerable time was done rightfully, and that these acts of enjoyment were lawful. That being the case, there was abundant evidence upon the trial to raise a question to go to the jury, whether the wall was or was not the common wall of both. There having been a joint use of the wall by both, each must have had the right originally, or have acquired the right in the course of time by legal means. The jury have found in effect that it was their common property. The question then arises, whether one tenant in common can maintain an action of trespass against another for such acts as were done in this case by pulling down the old wall and building the new one on its site. Taking it to be the law, that where there is a complete destruction by one tenant in common of that which he has in common with others, so that that other is wholly deprived of the use of it, an action of trespass will lie, I think the act done by the defendant in this case cannot be considered as a destruction of the wall; the removal of the old wall having been effected merely for the purpose of rebuilding another on its site as speedily as possible.

LITTLEDALE, J. I am entirely of the same opinion. The plaintiff seems to have claimed the wall as his own exclusive property, and so did the defendant. There was abundant evidence to raise the question for the consideration of the jury, Whether the plaintiff and defendant were tenants in common? It is suggested, that although the learned judge left it to the jury to find whether the wall was the property of the plaintiff or of the defendant, and also whether it was the common property of both as tenants in common, yet that the foreman of the jury when he returned the verdict did not in express terms answer the question put to them by the learned judge, but said that the jury found it to be a party wall; and that that finding is consistent with the fact of the wall, and the soil on which it was built, having originally belonged to the plaintiff and defendant, or those under whom they claimed, in equal moieties. It appears that when that verdict was returned, the Lord Chief Baron observed that it was a verdict for the defendant. The plaintiff's counsel did not then suggest to the Lord Chief Baron the propriety of leaving to the jury the question in any other form than that in which it was left to them, or intimate any doubt as to the sufficiency of the evidence to warrant the jury in coming to the conclusion to which they did come. That being so, a new trial cannot now be granted on that ground. But even assuming the parties to have been tenants in common of this wall, then it is said that trespass will lie in this case by one tenant in common against the other, because there was in this case a destruction of the subject-matter of the tenancy in common. In Com. Dig. Estates (K), 8, there are various cases as to the remedy which one tenant in common has against another. It appears that

with regard to actions in respect to matters not chattels, in some cases an ejectment will lie, if one actually oust his companion of the possession, and trespass will lie where there has been a complete and total destruction of the subject-matter of the tenancy in common; as if one tenant in common destroys the whole flight of a dovecote, or all the deer in their park. In other cases where there has not been a total destruction of the subject-matter of the tenancy in common, but only a partial injury to it, waste or an action on the case will lie by one tenant in common against another; as if one tenant in common of a wood or piscary does waste against the will of the other, he shall have waste; or if one corrupts the water, the other shall have an action on the case. There are other cases where the only remedy is to retake the property. As if one take a chattel real or personal entire, the other may retake it when he has an opportunity; but he has no remedy by action. If, again, there be two tenants in common of a house or mill, and it fall into decay, the one is willing to repair, and the other will not, he that is willing shall have a writ de reparatione facienda. It has been said that trespass will lie in this case by one tenant in common against the other, because there has been an expulsion amounting to an actual ouster. Now, if there has been an actual ouster by one tenant in common, ejectment will lie at the suit of the other. But I am not aware that trespass will lie, for in trespass the breaking and entering is the gist of the action; expulsion or ouster is a mere aggravation of the trespass. If the original entry therefore be lawful, trespass will not lie. In Taylor v. Cole, 3 T. R. 292, the first count was for breaking and entering the plaintiff's house, and expelling him. As to the breaking and entering, the defendant justified as sheriff of Middlesex under a fieri facias. Upon general demurrer it was held that the plea, which only justified the breaking and entering by showing a good cause for it, was a full answer, because the breaking and entering were the gist of the action, and the expulsion was only matter of aggravation; and that if the plaintiff had wished to take advantage of the expulsion, which was merely matter of aggravation, he ought to have shown the special matter in a new assignment, in order to make the party a trespasser ab initio. Then, if the expulsion be mere aggravation, trespass will not lie for it, because the original entry is lawful. The original entry being the gist of the action in trespass, and the expulsion mere aggravation, I doubt much whether trespass can be maintained even for an expulsion. Here the defendant pulled down one wall, and built another on its site. If two persons be tenants in common of land on which there is a wall, and one refuses to repair, and the other pulls down the wall, and sells the materials, and builds a better wall, it may be said that there has been a total destruction of the original wall, more especially if he sold the materials. Still if he did that for the purpose of getting other materials to make the new wall better than the old one was, and he builds the new one, though there was a destruction of that originally the subject-matter of the tenancy in common, an

which was