one for neglecting to keep the roof of the same in repair, the only remedy being in equity. They also refer to the cases above cited from Keilwey, and Modern Reports, and seem to assume the law to be settled, that, for such neglect to repair the roof by the owner of the upper story, the owner of a lower one might have a complete remedy in equity. To the above cases may be added one from a later volume of Modern Reports, quantum valebat, where it is said: "If a man has an upper room, an action lies against him by one that has an under room, to compel him to repair his roof; and so, where a man has a ground room, they over him may have an action to compel him to keep up and maintain his foundation." 1 In giving the opinion of the court in a case in New York, the judge, Rosekrans, uses this language: "The rule seems to be settled in England, that, where a house is divided into different floors or stories, each occupied by different owners, the proprietor of the ground floor is bound, by the nature and condition of his property, without any servitude, not only to bear the weight of the upper story, but to repair his own property so that it may be able to bear such weight. The proprietor of the ground story is obliged to uphold it, for the support of the upper story." It, however, should be stated, that every case which he cites to support his position is one in relation to subjacent support of land, which has come to be well-settled law.2 7. This subject has been treated of here as a question of servitude at common law, if for no other reason, because of the analogy there is between the support of one part of a dwelling-house by another, and that of land by what is adjacent or subjacent thereto. The Scotch and French systems treat of it as embraced under the law of servitudes. The former prescribes minutely what each proprietor of the several stories of a house is required to do in supporting or maintaining the same. "Where a house is divided into different floors or stories, each door (floor?) belonging to a different owner, the proprietor of the ground floor is bound by the Anonymous, 11 Mod. 7. 2 Graves v. Berdan, 26 N. Y. 501. In Ottumwa Lodge v. Lewis, the court of Iowa held that, if one owns the upper story in a house, and the roof requires repair, it must be done at his own cost, and he may not call upon the owner of a story below to contribute to the expense. 34 Iowa, 67. nature and condition of his property, without any servitude, not only to bear the weight of the upper story, but to repair his own property, in order that it may be capable of bearing that [*485] weight. As the roof remains a common roof to the whole, and the area on which the house stands supports the whole, the proprietor of the ground story is obliged to uphold it for the support of the upper, and the owner of the upper must uphold it as a roof or cover to the lower. . . . Where the property of the highest story is divided into separate garrets among different proprietors, each proprietor must uphold that part of the roof that covers his own garret.”1 8. In the French law the subject is regulated by the Code,2 by which: "Where the different stories of a house belong to different owners, if the writings relating to such property do not regulate the custom of repairs and rebuildings, they shall be done as follows. The main walls and the roof are at the charge of all the owners, each one in proportion to the value of the story belonging to him. The proprietor of each story is at the expense of his own flooring. The proprietor of the first story makes the staircase which leads to it; the proprietor of the second story makes, beginning from where the former ended, the staircase leading to his, and so on." This rule is based upon the above suggestion, that, while each is to do whatever is necessary within his own premises, so much of the structure as is for the common benefit of all the proprietors is made a common charge. And Toullier accordingly says, it is not only the principal walls of the house that become party (mitoyens), but also the roof, the stairs, the large beams, &c., and it was necessary to determine the manner of contributing to the several repairs which were common to the proprietors, which led to the adoption of the article of the Code above cited.3 The proprietor of either story may do what he sees fit [* 486] * within his own premises, provided he do nothing to prejudice the proprietors of the other stories, either in respect to the convenience or stability of the same. He may not, 13 Burge, Col. & F. Laws, 404; Ersk. Inst., fol. ed., 357. See also Humphries v. Brogden, 12 Q. B. 739, 756. 2 Code Nap., Art. 664. 3 3 Toullier, Droit Civil çais, 384. See Pardessus, Traité des Servitudes, 288, 290. Nor may he change. for example, place a forge therein, because of the inconvenience it would occasion to the proprietor above him. the flues of the chimneys or make new ones. changes or new structures which run through the parts of the house belonging to other proprietors.1 In several of the departments mentioned by Merlin, substantially the same rule prevails as to the support and repairs of houses as that given above as the Scotch law.2 Duranton refers to the position of M. Delvincourt, that, where there is no agreement, the several proprietors ought to contribute ratably to the repairs and reconstruction of the embankments, the arches and walls of the cellar of houses, and, in a word, of all the parts which are necessary to the stability of the edifice as a whole, or which serve for the convenience of the several tenants, such as wells, cess-pools (fosses d'aisance), and common passage-ways. But he differs from him in respect to arches in cellars. Such arches are not essential to sustaining the edifice, at least not generally, for the division walls which serve to support the several stories start from their foundations. The arches of the cellar are the flooring upon which the proprietor of the ground floor treads, and consequently they ought to remain at his charge, even though he may not be the proprietor of the cellar.3 * If in a house divided as above supposed it shall be necessary to place props or supports, as, for example, while relaying the underpinning of the lower part of the same, in doing which it may require stays or supports for the upper parts thereof, a question has been made at whose expense these props [* 487] are to be provided. It might seem that it should be at the expense of the proprietor of the upper part, that being the part which is needed to be supported. But the custom of cities having imposed it upon the proprietor of the lower part of the house alone to sustain, at his own expense, the walls of the interior part, although they support the upper part of the house, it seems to be a necessary conclusion, that whatever occupies the place of these walls ought to be provided at the expense of the proprietor of the 1 Merlin, Répertoire de Jurisprudence, tit. Batiment, § 2. 2 Ibid. 3 5 Duranton, supra, 385, 386. See 3 Toullier, Droit Civil Français, 153; 1 Le Page Desgodets, 108-118. lower part. Consequently, the proprietor of the upper part of the house is not bound to contribute towards such support.1 In fixing the proportions of the joint expense of maintaining the walls, &c., of houses, as stated in the above article of the Code, among the several proprietors of the respective stories, regard is not had to what may have been incurred by way of embellishment or ornamentation by the proprietor thereof.2 If, in case a house be destroyed by fire or demolished on account of its age, one of the proprietors oppose the wishes of the others for rebuilding it, the latter may compel him to elect whether he will abandon his rights or contribute to its reconstruction, which will be apportioned upon each story according to the rules of law above stated. And the writer expresses an opinion, that in such case it ought not to be in the power of any one to change the nature of the ownership of the land, into a common heritage, subject to be divided among the proprietors, for the proprietor of the ground floor or lower story ought not to be required to yield any part of the land, and the other proprietors have an interest to have their respective stories entire.3 [* 488] *9. The common-law doctrine of compelling a party to repair his house when it is ruinous by a writ de domo repa randa, was mentioned in the case of Loring v. Bacon,1 above cited. By the French law, if a house is in such a ruinous condition as to threaten to fall, and the owner neglects to take it down or support it by sufficient props, he may be compelled by the police to do so, and his neighbor may also be authorized to make the demolition, or apply such necessary props at the expense of the delinquent proprietor. 10. Questions have arisen between the owners of adjacent estates, upon one of which an existing privy is in use, as to whether the owner of the privy or the owner of the other estate is to protect the latter from the effect of the same. The rule, as stated in the case of Tenant v. Goldwin, seems to be this: If A 1 Merlin, supra, § 2. 25 Duranton, supra, 387; 3 Toullier, supra, 153. 3 5 Duranton, supra, 388. For the effect upon a demise, of a destruction of the demised premises, see Winton v. Cornish, 5 Ohio, 477; Stockwell v. Hunter, 11 Metc. 448. 4 Merlin, supra, §3. See on the same point Calvert v. Aldrich, 99 Mass. 74. has a privy upon his estate, which is separated from the house of B by a wall, and the wall belong to A, he is bound to keep the same in repair, and thus protect the estate of B. So if one own two houses, and there is a privy belonging to one, against which the other house is protected by a wall, and he sell the house and privy together, the purchaser will be bound to keep it in repair, and this duty will run with the estate. But if one erect a house with a privy adjoining a vacant estate, and the owner of the latter would dig a cellar and erect a house near the privy, it will be for him to erect a wall to protect his premises. And the same rule would apply if the owner of such house is also the owner of the vacant lot, and he sell the latter. If the purchaser would occupy it, he must protect himself, by works upon his own land, against the privy already standing upon the adjacent lot.1 *SECTION VI. EASEMENTS AND SERVITUDES OF LIGHT AND AIR. 1. Of the nature of the easement of light and air. [* 489] 12 Ld. Raym. 1089; s. c. 6 Mod. 313, 314; Holt, 500; s. c. Salk. 360, where the language of the court is, “an old privy," when speaking of one's digging a cellar, &c., near an existing privy, which may be regarded a material qualification of language reported in Lord Raymond. In the French law, the Code prescribes rules regulating the distances at which one proprietor of an estate may construct cess-pools and other causes of nuisance in reference to that of an adjacent owner. Thus, Art. 674 provides that " He who digs a well or cesspool, near a party wall or not, is obliged to leave the distance prescribed by the regulations and usages particular to such things, or to do the work prescribed by the same regulations and usages to avoid nuisance to a neighbor." It is understood that this extends also to privies (latrines). There is also a duty imposed upon the owners of these to keep them cleaned out; and if they shall fail to do so, the nearest neighboring owners may cause the same to be done at the expense of the owner of what causes the nuisance. 2 Fournel, Traité du Voisinage, 190; Code Nap., Art. 674, Barrett's ed. See Fletcher v. Ryland, L. R. 1 Exch. 265, as to liability of owner of land for erecting a reservoir upon the same, the water of which escapes and discharges itself upon the premises of the adjacent owner, where it was held that an action will lie, the general principle being that one is responsible for bringing upon his premises that which causes damage to others, if of a nature to cause such damage. See also in the same case the remarks of the court upon the case of Tenant v. Goldwin, p. 283. See Smith v. Fletcher, 20 W. R. 987. |