In this connection reference may also be made to Walters v. Pfeil, where the court held, that though if there be two houses adjoining each other, and it is necessary to take down one, the owner of the other ought to shore it up, if necessary to its security, yet, though he omit to do this, he would not be without remedy if the other party so irregularly and improperly took down his house as thereby to cause the other house to fall; or, in the words of the judge (Tenterden), if "the house of the defendant was pulled down in a wasteful, negligent, and improvident manner, so as to occasion greater risk to the plaintiff's than in the ordinary course of doing the work they would have incurred."

17. Questions somewhat related to those above alluded to, incidentally arose in the case of Chadwick v. Trower, which was an action for so carelessly taking down the defendant's vault, that the plaintiff's wine-vault and wine were injured. After discussing the form of the declaration, and what was averred therein in respect to the defendant's obligation to do certain [* 448] things in respect to the plaintiff's vault that adjoined his, the judge, Parke, B., says: "The question is, whether the law imposes upon the defendant an obligation to take such care in pulling down his vaults and walls as that the adjoining vault shall not be injured. Supposing that to be so, where the party is cognizant of the existence of the vault, we are all of opinion that no such obligation can arise where is no averment that the defendant had notice of its existence; for one degree of care would be required where no vault exists, but the soil is left in its natural and solid state; another, where there is a vault; and another and still greater degree of care would be required where the adjoining vault is of a weak and fragile construction." 2

18. And there is great force in the remark of Wardlaw, J., in Napier v. Bulwinkle, as to the gaining rights by one, and imposing duties upon another, of two adjoining estates by mere length of time in which a certain state of things has existed. "Where the enjoyment was in its nature hidden, or, although it was apparent, there was no ready means for resisting it within the power of the servient owner, assent was not implied, and the influence of twenty years' time, therefore, not acknowledged." 8

[* 449]

*SECTION II.

EASEMENT OF SUPPORT OF HOUSES.

1. Right of support of houses on each other gained by grant or prescription.

2. Rules of the civil law upon the subject.

3. Right of mutual support when incident to adjoining houses.

4. Right limited to adjoining houses, where it exists.

5. Of the care to be used in taking down a house adjoining another.

6. Right of support of houses may be gained by prescription.

7. One responsible for want of care in taking down his house.

1. OF a character somewhat analogous to that of the easement which the owner of a house may acquire by grant or prescription, of having it supported by the soil of an adjacent proprietor, and which has been above considered, is that which the owner of a house may acquire of having the same supported by an adjacent house. As both these are artificial structures, this right can in no sense be a natural one, and if, therefore, it exist at all, it can only have been acquired by grant or prescription.1

2. As a servitude, it was known to the civil law under the name of oneris ferendi, by which the wall or pillar of one house is bound to sustain the weight of the buildings of the neighbor, and the owner of the servient building was bound to keep it in repair, and sufficiently strong for the weight it had to bear, unless it was otherwise expressly stipulated by agreement, or it had otherwise been practised for a sufficient length of time. And while the wall was being rebuilt, the support of the dominant house was to be provided by the owner thereof.2

3. There may be a mutual right of support by two or more houses arising from grant or reservation, where they [* 450] * are erected by one owner, and are so constructed as to require such support, and are then conveyed to different owners, or one is conveyed and the other retained by the original owner. The right of support, in such cases, is incident to the property so far as to pass with it, unless excluded by the terms of

2

Solomon v. Vintner's Co., 4 Hurlst. & N. 598.

Ayl. Pand. 309; 3 Burge, Col. & F. Law, 402; Domat, B. 1, tit. 12, § 2, p. 7; D. 8, 2, 33; 2 Fournel, Traité du Voisinage, 413, § 248. The distinction between the above right or servitude and the " Droit d'appui," or a simple right of support, is pointed out in the above work of M. Fournel, § 31.

the grant. The law in such cases presumes a grant or reservation of the right of support in favor of each of the tenements.1

4. A question how far an easement of support may arise in favor of one house against another came up in Solomon v. Vintners' Co., where there were three houses in a block. The plaintiff owned the first, the defendant the third, and the intermediate house standing between them belonged to a third person. The houses stood upon a hill, and for over thirty years had been out of perpendicular, the first leaning towards and upon the second and third. The defendant's house being out of repair, he pulled it down in order to rebuild it. In consequence of this the intermediate house leaned more than before, and the plaintiff's house fell. And for this he brought his action. There had never been a common ownership of the houses, nor did it appear under what circumstances they were originally constructed.

The court assumed that the one who took down the defendant's house was negligent in the manner in which the work was done. The plaintiff insisted that he had, by long enjoyment, acquired the right to have his house supported by the adjacent house. But Pollock, C. B., in treating of this, says: "If the house removed had been the next adjoining the plaintiff's, we should have felt much embarrassed by some cases and dicta. In Stansell v. Jollard,2 and Hide v. Thornborough, such a right of support is stated to be* gained if the houses have stood for [* 451] twenty years, and in Humphries v. Brogden Lord Campbell refers to these cases. It is extremely difficult to see how the circumstance of the houses having stood for twenty years makes any difference, or creates a right where houses are supposed to have been built by different adjoining land-owners, each with its own separate and independent walls, but, upwards of twenty years ago, one of them got out of perpendicular, and leaned upon and was supported in part by the others, so that if the latter were removed, the other would fall. . . . And it seems contrary to justice and reason, that a man, by building a weak house adjoin

1 Richards v. Rose, 9 Exch. 218. See Partridge v. Scott, 3 Mees. & W. 220; Webster v. Stevens, 5 Duer, 553; Eno v. Del Vecchio, 4 Duer, 53; United States v. Appleton, 1 Sumn. 492, 500; Partridge v. Gilbert, 15 N. Y. 601; 1 Fournel, Traité du Voisinage, § 31.

Stansell v. Jollard, 1 Selw. N. P. 457.

3 Hide v. Thornborough, 2 Carr. & K. 250. Humphries v. Brogden, 12 Q. B. 739, 749.

ing to the house of his neighbor, can, if the weak house gets out of the perpendicular, and leans upon the adjoining house, thereby compel his neighbor either to pull down his own house, within twenty years, or to bring some action at law, the precise nature of which is not very clear. Otherwise, it is said, an adverse right should be acquired against him." But as the plaintiff's house did not adjoin that of the defendant, the court held the latter could not be responsible to the former for the injury to his house by the removal of the defendant's house.

Bramwell, B., agrees with the Chief Baron in his conclusions, but avoids the point of how far and when the owner of one house can gain an easement of support against another, as involving questions of very great difficulty and importance, and on which he would rather not pronounce an opinion, without a great deal more consideration than he had been able to give them.1

The case of Stansell v. Jollard, however, was that of a claim of a right to have an ancient house supported by the adjacent soil, and not of support of one house by another. The same was true of Hide v. Thornborough.

No duty, however, devolves upon one owning a house adjoining another, to keep it in repair, except the obligation he is under to prevent its becoming a nuisance by endangering his neighbor by its falling.2

[* 452]

*

* 5. In Peyton v. Mayor, &c., the action was for pulling down, by the defendant, of his own house without shoring up that of the plaintiff, which leaned upon it, by reason of which the latter fell. The defendant's house was old, and required to be taken down. The count in the plaintiff's writ assumed that the defendant, when he took down his house, was bound to shore up the plaintiff's house, and it did not aver that defendant failed to give him notice, so that the plaintiff could have done it himself; so that whether such notice was necessary was not a question raised in the case. It did not appear whether both houses were built at the same time or at different times. The freehold of the two was then in different hands. The plaintiff must, from his situation in this case, have known of the act of taking down the defendant's house. From the want of any evidence of a grant of a right of support of plaintiff's house upon defendant's, the court

1 Solomon v. Vintners' Co., 4 Hurlst. & N. 585–603.

2 Chauntler v. Robinson, 4 Exch. 170.

held, under the plaintiff's declaration, he could not recover for the injury to his house.1

No obligation or servitude of support of one building by another arises from their mere juxtaposition, however long continued. Nor, as it would seem, from the one house, tottering and resting against the other, which stands erect, in its original position."

6. But, from the cases before cited, it seems to be understood that one may, under some circumstances, acquire the right of supporting his house against that of his neighbor, if enjoyed for a sufficient length of time. And this will, at any rate, be shown to be the case if there be a wall of mutual support between them answering to a party wall.3

7. Still one may not, recklessly, and in a wasteful and

negligent manner, take down his own house upon his [* 453] own land, and thereby cause injury to the adjacent buildings of another. In taking down his own house he is bound to exercise reasonable care, and either to give the adjacent owner notice of the proposed alteration in the premises, and an opportunity to protect his premises by proper props and guards, or to provide them himself, unless the structure which he takes down is wholly his own and upon his own land. But if he give the other party notice, and he fails to protect his buildings from injury, the party who takes down the house is not bound to use any extraordinary care in preventing an injury to the premises of the other party.+

SECTION III.

1

EASEMENT OF PARTY WALLS.

1. Servitude of the civil law answering to party walls.

2. What constitutes a party wall.

2a. When a right of party wall an incumbrance.

Peyton v. Mayor, &c., 9 Barnew. & C. 725; Partridge v. Gilbert, 15 N. Y. 601, 612.

* See Napier v. Bulwinkle, 5 Rich. 311, 324.

3 Wiltshire v. Sidford, 8 Barnew. & C. 259, note; Cubitt v. Porter, 8 Barnew.

& C. 257.

4 Walters v. Pfeil, Mood. & M. 362; Massey v. Goyder, 4 Carr. & P. 161; Trower v. Chadwick, 3 Bing. N. C. 334; s. c. 6 Bing. N. C. 1, reversing the