10 Conn. 318 | Conn. | 1834
The declaration, in substance, is, that the plaintiff'Owns the fir.t and second stories of a brick store, and the defendant owns the third story and roof. The defendant, has suffered the roof to decay and become leaky and ruinous, so that the lower part of the building is injured ; and for this neglect of the defendant this action is brought. The superior court, on a trial, found the facts alleged true, but adjudged the declaration insufficient. It is now to be decided, by this court, whether this action can be sustained.
Nor can we say, in the absence of statute regulation, or express decision, that this doctrine is so reasonable that an action can be sustained. In large cities, houses generally consist of four or five stories. The owner of the fifth story, upon the principle assumed by the plaintiff, is compellable to furnish a sufficient roof to protect the whole building against water. Also, the owner of each story is obliged to secure the side and ends, as the case may be, against the entrance of water to the annoyance of all those who own or occupy below. The owner of the lower story is compellable, also, to keep the foundation suitably repaired, to sustain each of the other stories, with their additional (as the case may be) superincumbent weight.
These considerations, and others easily suggested, would lead to the conclusion, that a remedy, in such case, can be furnished, only by a court of chancery. The principles adopted, by Chancellor Kent, in Campbell v. Mesier & al. 4 Johns. Ch. Rep. 334. countenance this idea. The case of Loring v. Bacon, 4 Mass. Rep. 575. was pressed, by the counsel for the plaintiff. There, it was decided, that the owner of the upper story could not recover in assumpsit against the owner of the lower floor and cellar, for necessary repairs to the roof. Chief
On the whole, I incline to adopt, as the result of my deliberations, the opinion, that in a court of chancery only can the plaintiff have adequate remedy; and that there is, therefore, no error in the judgment complained of.
Judgment affirmed.