23 Pa. 34 | Pa. | 1854
The opinion of the Court was delivered by
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. It exists partially in London: St. 14 Geo. 3, c. 78. It has constituted part of the law of France for ages, and is fully carried out in the Code Napoleon, ss. 653-673. In that law (s. 659) we find the very provision on which this case proceeds, that the builder of a new house may take down a party-wall that is insufficient for his purposes, and rebuild it at his own expense; and this expense is the best protection against an abuse of the right, the exercise of which cannot be of frequent occurrence. See also Pothier’s Traité de Société, app. du Voisinage, s. 247, &c.; Pothier’s Coutumes, Des Servitudes, art. 235, &c., Voet ad Pand. 8, 2, 15-17; Pothier ad Band. L. 10, s. 67.
The principle is no invasion of the absolute right of property, for that absolute involves a relative, 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 a 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 re
Taking these suggestions in connexion with the facts that the wall in question was a party-wall, built half on each side of the line of the lots, and that the Acts of Assembly of 1839 and 1849 apply only to such walls, we can see in those acts no such invasion of private rights as requires us to regard their provisions with suspicion. This proceeding was under the act of 5th April, 1849, P. L. 411, 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.
Proceedings affirmed.
