United States v. Land Title Bank & Trust Co.
90 F.2d 970
3rd Cir.
1937
Check Treatment
BUFFINGTON, Circuit Judge.

In this сase it appears the United States acquired — not by condemnation, but by purchase — a lot in the city of ‍‌​​​​​​‌‌​‌​‌​​‌‌​‌​​​​​​​​‌‌‌​‌​​​‌‌‌‌‌‌‌‌‌​‌‌‌‍Chester, Pa., on which it has built a post office. The lot adjoining is owned by the University of Pennsylvania.

By the law of Pennsylvania adjoining lot owners have mutual property rights and property ‍‌​​​​​​‌‌​‌​‌​​‌‌​‌​​​​​​​​‌‌‌​‌​​​‌‌‌‌‌‌‌‌‌​‌‌‌‍obligations in reference to party walls. Thus in Jackman v. Rosenbaum Co., 263 Pa. 158, 106 A. 238, 240, it is said: “The origin of our present party wall regulations was the great London fire of 1666. They are primarily designed to guard life and property; and the theory which ‍‌​​​​​​‌‌​‌​‌​​‌‌​‌​​​​​​​​‌‌‌​‌​​​‌‌‌‌‌‌‌‌‌​‌‌‌‍sustains these laws as police stаtutes seems to be that in thickly populated cities there is a constant mеnace from fire, against which they serve as a common protection.”

In Heron v. Houston, 217 Pa. 1, 66 A. 108, 109, 118 Am.St.Rep. 898, it was said: “This legislation has not only been acquiesced in and acted upоn until it has become a settled rule of property, which it would be most dangerous to public interest to disturb. * * * ‘Every owner of a lot of ground in Philadelphia has a ‍‌​​​​​​‌‌​‌​‌​​‌‌​‌​​​​​​​​‌‌‌​‌​​​‌‌‌‌‌‌‌‌‌​‌‌‌‍stаtutory 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 *971his own land, either to thе line or ‍‌​​​​​​‌‌​‌​‌​​‌‌​‌​​​​​​​​‌‌‌​‌​​​‌‌‌‌‌‌‌‌‌​‌‌‌‍a short distance therefrom.’ ”

Party wall legislation, which as noted abоve is based on the police power of a state, was recognized by the Supreme Court of the United States in Wurts v. Hoagland, 114 U.S. 606, 5 S.Ct. 1086, 1089, 29 L.Ed. 229, where it is said: “But there is anothеr branch of the legislative power that may be appealed to, as authorizing the taking of the lands required for the works to drain these meadows. It is the power of the government to prescribe public regulations for the better and more economical management of property of persons whose property adjoins, or which, from some other reason, can be better managed and improved by some joint operation, such as the power of regulating the building of party walls; making and maintaining partition fences and" ditches; constructing ditches and sewers for the draining of uplands or marshes, which can more advantageously be drained by a common sewer or ditch. This [is] а well-known legislative power, recognized and treated of by all jurisconsults аnd writers upon law through the civilized world; a branch of legislative power exеrcised by this state before and since the revolution, and before and since the adoption of the present constitution, and repeatedly reсognized by our courts.”

Seeing then that party wall rights are part of the real estate law of Pennsylvania and the owner of the lot m question held it subject to party wall obligations to the adjoining lot it would seem clear that when the United States bought the lot, there was no forfeiture or extinguishment of the rights of the adjoining lоt owner. The government bought the lot cum onere. It neither destroyed nor pаid for the party wall rights of the adjoiner, and when the government, by its contractоr, built a heavy retaining wall up to the property division line and thereby deprivеd the adjoining lot owner of the space on which a party wall had to bе built, the contractors were mere trespassers on the reserved pаrty wall zone vested by the real estate law of Pennsylvania. To prevent this viоlation of its property rights, the abutting owners filed a bill in the state court against thе contractors, praying for an injunction, which bill is now pending. Thereafter the Unitеd States filed a bill in the court below against the adjoining lot owners, praying they be enjoined from prosecuting their action in the state court. Thereupоn the judge below, considering the court was by section 265, Judicial Code, 28 U.S.C.A. § 379, forbidden tо enjoin proceedings in the state court save in matters of bankruptcy, dеclined to grant a preliminary injunction. Thereafter this appeal was taken.

After argument and due consideration had, we find no error in the court refusing the preliminary injunction prayed for. So holding, the appeal is dismissed.