112 Pa. 504 | Pa. | 1886
delivered the opinion of the court, May 10th, 1886.
The wall of the plaintiff in error was condemned as insufficient by the building inspectors under the Act of the 20th of May, 1857, P. L., 590, entitled “ An Act in relation to party walls.” Said Act is as follows: “ That it shall be the duty of
In Evans & Watson v. Jayne, 23 Penn. St. Rep. 34, it was said by this Court that “ There can be no available objection to the principle upon which our law as to party walls is based. The law as to partition fences involves the same principle. ...... The principle is no invasion of the absolute right of property, for that absolute right involves a relation, in that it implies the right of each adjoiner, as against the other, to insist on a separation by a boundary more substantial than a mathematical line. This imaginary line is common, and so ought the real one to be, and it is only in the character of this that the difficulty lies which requires legislation. When it is constructed, the regulation of its enjoyment and repair is as plain as that belonging to any other property held in common. And there is nothing more severe in submitting the question of the sufficiency of walls in the city to the city surveyor, than there is in submitting the sufficiency of fences in the country to fence viewers. The principle is the same, and if the interests involved in the one case are greater than in the other, it is only because of the nature of city property, that it requires more expensive partition walls or fences than are required in the country. The provisions of the law are substantially the same in both eases.”
This language was applied to the Act of 5th April, 1849, P. L., 411, but it is equally applicable to Act of 1857 above quoted. The Act of 1849 is not given in Purdon, for the reason probably that the editor regards it as superseded or supplied by the Act of 1857. Both acts were clearly intended to give a summary remedy for settling disputes in regard to
The wall in question was condemned by the building inspectors upon notice to the plaintiff. He refused to take down the wall or to allow the defendant to do so, whereupon the latter applied to the Court of Common Pleas by petition setting out the facts and praying for an order upon the plaintiff in error to take down said wall or permit the petitioner to do so. An answer was put in by George R. Childs, plaintiff in error, and after a hearing the order prayed for was made.
A number of assignments of error have been filed to this action of the court below, the most material of which are, 1st, That no affidavit of facts had first been filed by the building inspectors setting forth the said violation particularly, and 2d, There was no proof of the allegations of fact in the petition, which were denied in the answer.
It seems to have been assumed in support of the second objection that it was the duty of the court below to have referred the case to a master to have found the facts as in the case of a bill in equity. This view entirely ignores the whole scope and spirit of the Act of 1857, which was intended, as before stated, to give a summary remedy. Under that Act the decision of the building inspectors was final and conclusive, saving only an appeal to the board of surveyors which must be taken within three days. The Act gives no appeal to the Court of Common Pleas, and that court has no jurisdiction to review the case upon the merits. If it has jurisdiction at all, it is only to enforce the decision of the building inspectors, as was done in this case.
In regard to the absence of an affidavit, it is to be observed that the Act of 1857 does not, as this Act of 1849 did, contain a provision requiring the Court of Common Pleas to enforce the order or decision of the building inspectoi’s. Such a proceeding is not essential under the Act of 1857, and I can see no necessity for going into that court for such a purpose. The decision of the building inspectors is a finality and the Act declares that “ the wall shall be taken down by the last builder,” and if the latter is interfered with in doing so, it is simply an unlawful interference which any Court of Common Pleas may, by virtue of its equitable powers restrain in a summary way by an order or an injunction; or if such interference amounts to a breach of the peace, the Court of Quarter Sessions would have the power to bind the offending parties over to keep the peace.
The 10th' section of the Act of 7th May, 1855, P. L., 463, has no application. That section provides certain penalties for erecting buildings contrary to the building laws, and authorizes the Court of Common Pleas upon petition, verified by the oath or affirmation of a building inspector, to restrain such unlawful erection by an injunction. It has no reference to the question of condemnation of party walls.
The further point was made that the appeal given by the Act of 24th February, 1721 (1 Sm. L., 124), and the Act of 15th April, 1782, 2 Id. 48, has not been taken away by subsequent legislation.
It is a sufficient answer to this to repeat what was said by the court in Evans v. Jayne, (supra) in speaking of the Act of 1849: “ This proceeding was under the Act of 5th April, 1849, and the process there provided is complete in itself without any appeal, and we cannot imply that any was intended; and herein too it resembles the fence laws.”
If, however, we concede that the proceedings below were irregular for want of an affidavit it would not help the plaintiff in error. It was admitted upon the argument that the wall has been taken down and rebuilt. The court below merely enforced the decision of the building inspectors. There is and was no appeal from the latter to that court. There might, perhaps, have been an appeal to the board of surveys, but there was none. It would do no good to reverse the court below for simply enforcing the order of the building inspectors,
The proceedings are affirmed.
