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But if the case in Keilway is law, the plaintiff cannot recover; for by that case the defendant could have compelled the plaintiff to repair his house, or compensate her in damages for the injury she had sustained from his neglect to repair it. And he has the like remedy against her.

If the case in Keilway is not law, then, upon analogy to the writ at common law, the plaintiff cannot compel the defendant to contribute 10 his expenses in repairing his own house. But if his house be considered as adjoining to hers, she might have sued an action of the case against him, if he had suffered bis house to remain in decay to the annoyance of her house.

In every view of this case, there is no legal ground on which the plaintiff's action can be supported. We do not now decide on the authority due to the case in Keilway; but if an action on the case should come before us, founded on that report, it will deserve a further and full consideration. The plaintiff must be called."

Bidwell, Attorney-General, for the plaintiff.
Sproat, for the defendant.

CAMPBELL v. MESIER.
COURT OF CHANCERY OF NEW YORK. 1820.

(Reported 4 John. Ch. 334.] THE CHANCELLOR.2 From the proof in this case, it is manifest, that the wall in question was a party wall, in which the owners of the two houses and lots had an equal interest. All the witnesses who examined the lots and houses, and have expressed any opinion on the subject, unite in establishing that fact. Three of the witnesses were master builders or masons, and skilled in questions and observations of that kind. It is, also, a fact, equally well ascertained, that this party wall, in 1803, when it was taken down by the plaintiff, was in a state of ruin and decay, and dangerous, and utterly incapable of being partially cut down. It was impossible for the plaintiff to rebuild on his lot with. out taking down that whole party wall to the foundation. The plaintiu had the wall examined in April, 1803, by the city surveyor, ang * master carpenter and mason, and they united in a certificate, that the wall was unfit to stand, and incapable of being repaired, and that the plaintiff could not build on his lot with safety, without taking 1 down. This certificate was served upon the defendant Mesier, .. agent for his father, the then owner, with a proposition from the plane tiff, that the owners should unite in the expense of rebuilding the w The answer to this proposition contained a refusal to bave the wa taken down, or to unite in the expense of rebuilding it, and for

1 So Ottumwa Lodge v. Lewis, 34 Iowa, 67. 2 The opinion states the case.

the plaintiff to pull down or injure the wall, under the pain of being re sponsible as a trespasser. The wall was taken down, and a new wall rebuilt by the plaintiff, on the site of the old one, with all reasonable care and diligence; and the question now is, whether the defendant Mesier, as heir and devisee of the original owner, who sold the lot to the other defendant, after the new wall was erected, ought not to be held to contribution for a moiety of the expense.

T bave not found any adjudged case in point, but it appears to me, that this case falls within the reason and equity of the doctrine of contribution, which exists in the common law, and is bottomed and fixed on general principles of justice. In Sir William Harbert's Case, 3 Co. 11, and in Bro. Abr. tit. Suite and Contribution, many cases of contribution are put, and the doctrine rests on the principle, that where the parties stand in equali jure, the law requires equality, which is equity, and one of them shall not be obliged to bear the burden in ease of the rest. It is stated in F. N. B. 162 b, that the writ of contribution lies where there are tenants in common, or who jointly hold a mill, pro indiviso, and take the profits equally, and the mill falls into decay, and one of them will not repair the mill. The form of a writ is given, to compel the other to be contributory to the reparations. In Sir William Harbert's Case, it was resolved, that “when land was charged by any tie, the charge ought to be equal, and one should not bear all the burden, and the law, on this point, was grounded in great equity.” Lord Coke illustrates the rule of law requiring equity, and, consequently, contribution, by a case from 11 Hen. VII., and in reference to this most just and reasonable doctrine of contribution, he breaks out into an animated eulogy on the common law, as being “ the perfection of reason, and not according to any private or sudden conceit or opinion.” The doctrine of contribution is founded, not on contract, but on the principle, that equality of burden, as. to a common right, is equity; and the solidity and necessity of this doctrine were forcibly and learnedly illustrated by Lord Chief Baron Eyre, in the case of Dering v. Earl of Winchelsea, 1 Cox's Cases, 318; 2 Bos. & Pull. 270, 8. c.

In the case before me, the parties had equality of right and interest in the party wall, and it became absolutely necessary to have it rebuilt. It was for the equal benefit of the owners of both houses, and the plaintiff ought not to be left to bear the whole burden. The inconvenience of the repair was inevitable, and as small and as temporary as the nature of the case admitted. This is the amount of the proof. The case of the mill, stated in Fitzherbert, is analogous, and no reason applies to the one case, but what will equally apply to the other. In England, the Statute of 14 Geo. III. c. 78, has made special and very ample provision on this subject in respect to houses and partition walls in the city of London ; but in the absence of Statute regulation, we are obliged to call up and apply the principles of the common law. As was observed by Ch. B. Eyre, the doctrine of equality operates more effectually in this court than in a court of law. There is more difficulty in

enforcing contribution at law, and this was felt in the case in Coke. There the parties were put to their audita querela, or scire facias. Contribution depends rather upon a principle of equity, than upon contract. The obligation arises not from agreement, but from the nature of the relation, or quasi ex contractu ; and as far as courts of law have, in modern times, assumed jurisdiction upon this subject, it is, as Lord Eldon said, 14 Ves. 164, upon the ground of an implied assumpsit. The decision at law, stated in the pleadings, may, therefore, have arisen from the difficulty of deducing a valid contract from the case ; that difficulty does not exist in this court, because we do not look to a contract, but to the equity of the case, as felt and recognized, according to Lord Coke, in every age, by the judges and sages of the law.

Papinian, Dig. 17, 2, 52, 10, states it as a rule of the civil law, that if one part owner of a house in decay, repairs it at his own expense, upon the refusal of the others to unite in the expense, he can compel them to contribute their proportion, with interest, or upon their default, at the end of four months, the house, at his election, becomes his sole property. This unreasonable penalty, or forfeiture, has, in modern times, gone into disuse, but the claim to contribution remains. Voet ad Pand. h. t. sec. 13.

The rules and doctrines of the French law, may be referred to by way of illustration, and to show the prevailing equity and justice of the rule of contribution, in respect to party walls.

A common, or party wall, by that law, is, when it has been built at common expense, or if built by one party, when the other has acquired a common right to it. Every wall of separation between two buildings, is presumed to be a common or party wall, if the contrary be not shown; and this is not only a rule of positive ordinance, but is a principle of ancient law. Code Civil, No. 653; Fournel, Traité de Voisinage, édit. 1812, tom. 2, 217; Pothier's Contrat de Société, Première Appendice, No. 199, 203. If the common wall be in a state of ruin, and requires to be rebuilt, one party can compel the other, by action, to contribute to the expense of rebuilding it; but the necessity of the reparation must be established by the judgment of men skilled in the business, and made on due previous notice; and if the new wall is made wider or higher, &c., the party building it must bear the extra expense. Pothier, ubi sup., No. 214–222; Fournel, ubi sup., pp. 236, 237, 239, 242; Code Civil, No. 655.

The customs of Paris and of Orleans, have special and minute regul. lations on this subject; and the previous view and judgment of skilful men, and the judicial process in these cases, to ascertain the state of the wall, and to compel contribution, resemble the provisions of the Statute of 13 Geo. III. in respect to the city of London. Either neighbor may, in certain cases, discharge himself from the duty of contribution, by abandoning entirely his right in the middle wall (Fournel, tom. 1, p. 2; Code Civil, No. 656); and there is another principle in the French law, which applies directly against the claim set up on the part of the

defendant Mesier to damages for the annoyance of the repairs. “If I, necessarily,” says Pothier, “ deprive my neighbor of the profits of his business arising from the use of his side of the wall, during the time of the repair of the party-wall, I am not bound to indemnify him for his loss, because I am only in the exercise of a lawful right, unless I consume unnecessary time in the reconstruction of the wall."

In the present case, the defendant M. had not previous notice of the examination of the wall, in April, 1803. It was altogether ex parte. But the defendant, in his answer, put himself upon the denial of the right of the plaintiff, and refused absolutely to unite in a friendly arrangement. The ruinous state of the wall, and the necessity of taking it down, and the character of the wall as a common or party wall, depended then upon the proof to be exhibited in the cause; and, in all these respects, the plaintiff has supported the charges in his bill, and the defendants bave failed in proof to the contrary. But the estimate of the expense furnished by the plaintiff, does not discriminate between the expense of the wall up to the former height, and up to the height to which the new wall was carried by the plaintiff'; and on this point a reference may be necessary.

The materials of the new wall were better than those of the former Fall, but they were such as are usual, and proper, and beneficial, and they were of the same nature. If the new materials had been of a different and unusual kind, such as marble, for instance, then, undoubtedly, the plaintiff ought to have borne the extra expense of the new and rare materials, and this, according to Pothier, is the rule in the French

law.

I am very forcibly struck with the equity of the demand. The houses on each side of the lot were old and almost untenable ; and it would be the height of injustice to deny to the plaintiff the right of pulling down such a common wall, and of erecting a new one suitable to the value of the lot, in the most crowded part of a commercial city. It would be equally unjust to oblige him to do it at his exclusive expense, when the lot of the defendant was equally benefited by the erection, and much enhanced in value. Persons who own lots in the midst of a populous city, must, and ought to submit to the law of vicinage, which applies to such cases, and flows from such relations.

I shall, accordingly, declare, that the wall in question was a party Wall; that it was ruinous; and that the plaintiff was in the exercise of a la sful right when he took it down and erected a new one; and that the defendant M., as heir and devisee of his father, P. M. (and it is ad. mi tted in the answer that for the purpose of this case, he represents his father), ought to contribute ratably to the expense of the new wall, and that a reference be had to ascertain the amount.

Decree accordingly.1
Wells and C. Baldwin, for the plaintiff.
Slosson, for the defendants.

i See Sanders v. Martin, 2 Lea, 213.

PRESCOTT v. WHITE.
SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1838.

[Reported 21 Pick. 341.] TRESPASS quare clausum for entering and digging out the raceway froin the defendant's mill, where it runs through the plaintiff's land. Trial before Morton, J.

The judge instructed the jury, that the defendant, as owner of an ancient mill above, and an artificial raceway as appurtenant to or connected with it, had the incidental right to enter upon the plaintiff's land and clear out the raceway in the ordinary and usual method, and to throw the materials so cleared out, upon the banks of the same, doing no unnecessary damage.

No evidence was introduced of the defendant or the former proprietor of the mill ever having cleared out the raceway or ever having entered for that purpose.

The plaintiff objected to the ruling of the judge; and if it was erroneous, the verdict, which was for the defendant, was to be set aside and a new trial granted.

Mann and Clarke, for the plaintiff.
Simmons and Cushing, for the defendant.
Shaw, C. J., afterwards drew up the opinion of the court.

As we understand the direction of the judge, we are of opinion that it was correct. There is a slight ambiguity in the report of the instruction to the jury. It was taken for granted, and it seems to have been so understood at the argument, that the usual and ordinary method of clearing out similar raceways in the country, is to pass over the grounds through which such raceways are conducted, and remove that portion of material which has fallen into it and place it upon the adjoining bank. The effect therefore of the rule adopted by the judge and applied to the actual circumstances of this case was, that where one is the owner of an ancient mill, to which there has been attached a raceway, being an artificial canal for conducting off the water from the mill, and without the free and unobstructed current of which the mill could not be worked, and such canal has from time immemorial passed through the land of another, and there is no grant or contract regulating the rights of the parties, the owner of the mill has a right to enter upon the land through which the raceway passes, and to clear out the obstructions therefrom, in the usual and ordinary mode in which such canals are cleansed, doing no unnecessary damage, and that if the defendant had so done, it would have been a good justification for entering the plaintiff's land and clearing out the raceway.

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