7 Watts 460 | Pa. | 1838
The opinion of the Court was delivered by
The first error assigned here has been abandoned. The second presents the principal question; and one which, on account of its connexion with almost daily occurrences in our state, more especially in our improving cities and towns, is therefore of some interest, and requires a distinct expression of opinion from this court in regard to it: so that all concerned in the erection of new buildings may know what they are bound to do, as well in justice to them
It cannot be doubted, but the respective owners of adjacent lots of ground, situate in cities or towns, and laid out and sold by the original owner of the whole ground plot for the very purpose of being improved by the erection of buildings thereon to the utmost boundaries thereof, have the right to do so whenever it may suit their ability and convenience; and are not bound to do any thing of the kind before, unless indeed an express condition, requiring it, be annexed to the grant from which the title is derived.
The counsel for the plaintiff seem to entertain the idea, that the owner of a lot can only build to the line between him and the owner of the adjacent lot, where it is practicable to do so without producing any damage or loss to the latter, though the latter or those under whom he claims may have been in a great degree the occasion of its being impracticable for the former to build without such loss happening to the latter. Now although the rule of the civil law, sic utere tuo ut alienum non laidas, has been adopted and become part of the common law, yet it will not secure and protect every reckless and careless owner of property, who has, through want of proper care and attention on his part, or of those under whom he claims, been the occasion of the loss complained of. The owner of the lot, who improves it by putting up a dwelling or other house thereon, extending to the boundary of the same, which is a mere line of length without breadth separating his lot from the adjacent one belonging to another and remaining unimproved, must be considered as bound to use suitable materials and the requisite skill in doing so, in order that the walls of his building next to the adjacent lot may, if the owner thereof should think proper, in preparing the foundation for the house which he may afterwards resolve on erecting, to excavate the adjacent earth or to go below the foundation of the walls of the first building, admit of this being done by ordinary care and caution, with the use of the common and ordinary means of accomplishing it. If the first builder, in the construction of his wall, use materials unfit for the purpose ; or the materials, though suitable, are so unskilfully built in the wall, that it cannot be preserved and supported by ordinary care and diligence, with the use of the usual and ordinary means resorted to in practice for that purpose : when the second builder comes to digout the foundation for his house, but notwithstanding the use of such care, diligence and means by the latter to prevent it, the wall gives way and with it a part or the whole of the first building falls, occasioning small or great loss to the owner thereof, it must be regarded as damnum sine injuria, for which the second builder is in no wise responsible. This would seem to be the doctrine laid down by the learned judge of the district court to the
Being of opinion that the charge of the court to the jury was correct on this question, and the jury having found the facts to be in favour of the defendant so far as they related to it, the direction of the court to the jury on the measure and extent of damages that ought to be given to the plaintiff in case they should find a verdict in his favour, and which is made the ground of the third error assigned, does not necessarily require to be noticed. But it may not be improper to say that we perceive no error in the direction of the court on this point either.
Judgment affirmed.