| Ala. | Jun 15, 1846
This is an action assumpsit, to recover damages for the use, by the defendant, of the wall of the plaintiff's house, in the construction of the house of the de-defendant. The counsel for the defendant contends, that the right to use another man’s wall, in the construction of a house on his own land, is derived from the principles of the civil law, and is called the right of support, which he admits can be obtained by grants or prescriptions only. [3 Kent’s Com, 436-6.]
Conceding this to be the rule of the civil law, as it doubtless is, it must, as is admitted, depend upon the-stipulation of the parties. If the right is claimed by prescription, it supposes a grant, nor can we conceive of any case, in which one man can appropriate to himself the use of another’s property without his consent.
In cities, where the houses are contiguous, and ground exceedingly valuable, the necessities of mankind has given rise in many instances to legislation, for the regulation of a subject which would otherwise be a fruitful source of vexation and dispute. The act of 14 Geo. 3, is an example of this kind, on the subject of party walls, making them joint property, and requiring each to contribute for their erection and repair. In such cases, the wall is built on the land of each, and is joint property. Here, the wall of the plaintiff in error is on his own land, is his own property, and may be removed at his pleasure.
If this action can be maintained, it is because of the benefit conferred on the defendant, by the use of the plaintiff’s wall, in the construction of his house, and the necessary corollary from the proposition, is, that the judgment against the defendant would convey to him an interest in the wall. What would be the nature of this interest? Would it be a conveyance in fee, for a term of years, or during the continuance of the wall ? There is no such thing known to our law, as an implied contract for the sale of an interest in land; nor indeed do we know of any law by which one can acquire an interest in a chattel, without the consent of the owner;
The argument here urged, is, that although there is po express contract to pay the proper proportion of the costs of the wall, the law creates a duty to contribute, when the wall is used, and from this duty, the law will imply a promise to pay. The error of this argument is in the assumption that the law creates the duty of contribution, when one man without the consent of the owner, uses his wall in the construction of his own house. Such an act, in the absence of a law authorizing it, would be a trespass, which might entitle the party injured to compensation, in damages, but could not be the foundation of an action ex contractu. As it respects personal property, in many cases the injured party may waive the tort, and affirming it as a contract, recover as upon a contract. But in such a case, the judgment would be a transfer of the property. No such consequence could follow the judgment in this case j the plaintiff might remove his wall the next day.
The nearest approach to this case, is the action for the use and occupation of land, which must be upon a contract — and although where there is a holding over after the demise, or the tenant occupies by the sufferance of the owner, a promise is implied, it is for the use of the land, and not for an interest in the land itself.
We felt a strong inclination to sustain this action, if possible, from its obvious justice, but as the legislature have not acted on the subject, we feel constrained to say, that upon the principles of the common law, no such action can be maintained. No precedent has been produced of the allowance of such an one, and none we apprehend exists.
Let the judgment be reversed and the cause remanded.