Heron v. Houston

217 Pa. 1 | Pa. | 1907

Opinion by

Mr. Justice Stewart,

It is too late at this day to question abstractly the right of the legislature to confer upon municipalities the power of regulatingparty walls. Never since we have beenastate have we been without legislation of this kind; and every enactment on the subject has contained the fundamental feature here challenged —constitutional warrant for the appropriation, under municipal regulation, by one of two adjoining lot owners of a certain portion of the other’s land, for the construction of a party wall for their common enjoyment and use. This legislation has not only been acquiesced in and acted upon until it has become a settled rule of property, which it would he most dangerous to public interest to disturb, but its constitutionality has been recognized by judicial authority in unmistakable terms. “ There can be no available objection,” is the language of the court in Evans & Watson v. Jayne, 23 Pa. 34, “ to the principle upon which our laws as to party walls is based. . . . 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.” The principle upon which these enactments rest is the general police power of the state. While it must be admitted that they are to a certain extent an interference with that exclusive enjoyment ordinarily incident to ownership of land, and arc therefore to be strictly construed: Hoffstot v. Voight, 146 Pa. 632; yet our adjudication under them are but so many repeated recognitions of their correspondence with constitutional limitations.

Nor can the other question sought to be raised by appellant be regarded as an open one. A strict construction of the statute leaves the appropriation of appellant’s property,- for purposes of a party wall, within their legitimate operation according to our own adjudications. In appeal of the Western National Bank, 102 Pa. 171, it is said: “ Every owner of a lot of ground in Philadelphia has a statutory right to make a party wall between himself and his neighbor, and may enter upon the adjoining lot for that purpose, not going beyond the prescribed limit. This right cannot be taken from him by the adjoining owner building exclusively upon his own land, either to the line or a short distance therefrom.” What is true of the law relating to Philadelphia applies with equal force to the particular statute here under consideration. The fact that the erection of the party wall here complained of will involve the appropriation and possible removal of appellant’s eastern wall, built wholly within his own line, and so contract the dimensions of his present hall or entry to his building, only furnishes another illustration of how general laws in their application may in individual cases result in apparent severity and injustice. Such apparent inequality necessarily results; but all are alike exposed to the chance, and the risk is part of the price which each pays for equal participation in all that is provided for the general safety and the common good.

The assignments of error are overruled. The decree affirmed, and the bill is dismissed at the costs of the appellant.