108 Ky. 322 | Ky. Ct. App. | 1900
Opinion op tee court by
Affirming.
Appellee brought this action in equity against appellant, alleging that he owned a house and lot on the public square in the city of Bowling Green; that, unlawfully and without right, appellant had, by force and arms, taken
The property of appellee has for years been known as the “Keel Lot.” The property of appellant adjoining it has for years been known as the “Herdman Lot.” At the earliest recollection of the witnesses who testified, there was a house on both lots, with a common wall between them. The Keel house burned during the war, and some years after the war appellee purchased the lot, and erected on it a three-story brick house. The old house was two-stories high, and ran back only forty feet from the street. When appellee began to build, he found ,the old wall badly cracked and bent. This wall then served as the end wall of the Herdman house. It was in such bad condition that appellee was unwilling to build upon it, and tore'it down. He then rebuilt this wall, and extended it back sixty feet; making his new structure 100 feet deep, and leaving the timbers of the Herdman house supported by it as before. Thus matters stood for something over twenty years, when appellant tore down the Herdman house, and erected on that lot the three story stone structure above referred to; using the whole wall built by ap-pellee as a part of his building. There are a number of-
It being established that the wall belonged to appellee, and stood entirely on his ground, it is insisted for appellant that no judgment could be rendered against him for the use of the wall. In support of this contention, we are referred to a number of authorities holding that there is no obligation at common law on the part of the other owner to contribute towards the expense of the construetion of a wail, when he subsequently uses it as a support of a building erected by him, in the absence of a contract between the parties to pay for such use. Bisquay v. Jeunelot, 44 Am. Dec., 483; Abrahams v. Krautler, 66 Am. Dec., 698; Wood, Nuis.,, section 221. In a number of States, statutes have been passed changing the common law rule on this subject. Id., section 225. But it is insisted that, as we have no such statute in Kentucky, the recovery in this case can not be sustained. But the common law, where the owner of a wall has, without his consent, been