delivered the opinion of the Court.
Tlie declaration in this case contains two counts, the first of which alleges that the defendant being the owner of a lot adjoining the lot of the plaintiff on the west, entered upon the plaintiff’s lot on the 12th day of August, 1876, while erecting a building on his own lot, and broke and entered upon the western wall of plaintiff’s property, and, by tearing open, undermining, building against, and weakening the support of the same, did cause the front wall of the plaintiff’s house to give way, and to become separated, so as to damage and ruin the same, and so as to permanently injure the plaintiff’s property.
The second count charges that said defendant on the 12th day of August, 1876, while erecting on his premises an improvement, with force and arms did cut and tear away a part of the front wall of the plaintiff’s building, and did extend the front wall of the defendant’s building over and upon the ground of the plaintiff, and took possession of part of the same, so as entirely to deprive the plaintiff of the use of the same. At the trial of the case in the Court below, the plaintiff offered six prayers, the first, second, fourth and fifth of which were granted, and the third and" sixth of which were refused; and the defendant offered four, all of which were rejected, and the verdict and judgment being in favor of the plaintiff, the defendant has taken this appeal.
The most important question presented by the prayers, depends upon the construction of the deeds under which the parties respectively claim title. The deed, under which the appellee claims title was executed by Nicholas Ruxton Moore to George Poe, in January, 1795, and the lot thereby conveyed is described as beginning “ at the distance of seventy-seven feet east from the intersection of Baltimore street and Hanover street, and on the south side of Baltimore street, and running thence west nineteen feet six inches, bounding on Baltimore street, then south parallel
The deed under which the appellant claims was executed by the.same grantor to John McKoy, in October, 1795, and the lot thereby conveyed is described as begin-, ning at the “west corner of George Poe’s house in Baltimore street, and running thence on said street, west nineteen feet four inches, to Mr. John Starch’s tavern, then south eighty-one feet and an half; thence east thirty feet two inches; thence south twenty-eight and an half feet; thence east five feet, to a five feet alley; thence north twenty-one and an half feet, until it intersects the southeast line of Mr. George Poe’s lot; thence northwest until it intersects a line drawn south from the plane of beginning, and •thence north to the place of beginning.”
It was proved by the City Surveyor, who made a survey and plot of the two lots above described, since this suit was instituted, that he first ascertained the location of the south-west corner of Baltimore and Hanover streets, as they had been established some years before by the City, and then from that point measured easterly sixty-six feet to ascertain the south-east corner of Baltimore and Hano•ver streets, and then, in order to find the beginning of the' lot of the appellee, he measured seventy-seven feet east from the intersection of Baltimore and Hanover streets, ascertained by him as above stated, and took the end of that seventy-seven feet line as the true beginning of the appellee’s lot, and then measured west along the- south side of Baltimore street nineteen feet six inches, as called for in the
The proof further shows that the wall, a part of which was included within the lines of the appellee’s deed as run by the surveyor, was fourteen inches 'thick, and that, either the appellee or some one of the parties under whom he claims title, had erected a' nine inch wall on it, without having first removed its coping stones, and run the nine inch wall up to a height of five stories, and had also built up the front wall of the house on that lot, and had lapped it over the front of the old fourteen inch wall, and that the appellant’s agents while engaged in the erection of a large store-house on his lot, had taken down the nine inch wall built on the old fourteen inch wall, and had that portion of the appellant’s front wall which was lapped over the north or front end of the fourteen inch wall, removed, and that the severing of the connection of' the plaintiff’s front wall from the end of the old wall had caused the front wall to bulge out so as to be in danger of its falling into the street. It was also found that the employés of the appellant had underpinned the old fourteen inch wall in the basement, and there was some proof tending to show, that by reason of such 'underpinning and repairing this wall, it had settled, and, in consequence thereof, the front wall of the appellee had bulged out towards the street. If the fourteen inch wall was the east wall of Nicholas R. Moore’s house against which the appellee had the liberty of building, he had no right to.
Again, if the fourteen inch wall, spoken of, was the east wall of Nicholas Ruxton Moore’s brick house mentioned in his deed to Poe, then that old wall was not a party wall, as under the deed to George Poe, he and his assigns had no title whatever to the wall itself or any part of it.
The only right which he and his assigns derived under his deed, was the right to build against it. This did not prevent Nicholas R. Moore and his assigns from repairing said wall, whenever repairs became necessary, provided such repairs were made in a careful and skillful manner, and with as little damage as possible to the building of the appellee.
Nor is there any proof in the record as to the time when the nine inch wall was built upon the old wall, or the front wall of the appellee’s connected with the end of the old wall. When a right by prescription is sought to be established, the onus of proving the prescription is on the party seeking to establish the right, and in this case the proof does not show that the nine inch wall was built upon the old wall, or the front wall of the appellee’s house had been connected with the end of the old wall for twenty years before the commencement of this suit.
It appears from the letters of the appellant to the appellee and his reply thereto, as set out in the record,, the appellant had a license to enter the building of the* appellee for the purpose of securing him and his tenants from any injury, likely to he caused by the acts of the appellant and his agents, theretofore done in taking down the nine inch side wall, and cutting away that part of the-front wall which had been built across the end of the old wall, and consequently no right of action exists for such entry, and acts done under the license.
Erom these views it follows, that there was error in granting the first, second, fourth and fifth prayers of the appellee, and rejecting the four prayers of the appellant.
As a new trial will he awarded, we are required to pass upon all the points presented by the record, and as to the third and sixth prayers of the appellee which are contained in the record, we nepd only say that they were properly rejected.
Judgment reversed, and new trial awarded.