Godshall v. Mariam

1 Binn. 352, 1808 Pa. LEXIS 47

Opinion

Tilghman C. J.

delivered the opinion of the court.

The only question now to be decided by the court is, whether the regulation of the lines of a lot in the Northern Liberties of the city of Philadelphia, made by virtue of the act entitled “ An act for appointing regulators in the southern parts of the “ Northern Liberties of the city of Philadelphia, and for other “ purposes therein mentioned,”

(a) is conclusive on the parties, not only as to that part of the lot on which buildings are erected, but throughout the whole extent of it.

The act, after reciting in the preamble, that great inconvenience had ensued for want of surveyors or regulators to lay out the proper gutters, channels, and conduits for carrying off the waters, “ and to set out the lots and to regulate the walls “ to be built between party and party f goes on to enact, “ that “ the regulators shall upon application made to them have full “ power and authority to regulate and lay out the proper gut- “ ters, channels and conduits for the carrying off the waters “ within the limits of the said described piece of land, and to “ enter upon the lands of any person or persons in order to set “ out the foundations, and to regulate the walls to be built “ between party and party as to the breadth and thickness “ thereof, which foundations shall be equally laid on the lands “ of the persons between whom such party wall is to be made.” &c. &c.

The third section inflicts a penalty on persons who shall begin to lay the foundation “ of any party wall, or any xvall “ fronting on any of the streets,” before the same is viewed and' directed by the regulators.

The fourth section gives an appeal to the justices of the next county Court of Common Pleas, in case either party, between whom such foundation or party xvall is to be made, shall conceive himself aggrieved by any order or direction of the regulators; and the justices are forthwith to summon a jury and proceed to determine the matter in dispute, according to the course of the common law. The fifth section ascertains the fee to be paid to the regulators for their trouble, “ in setting out “ and regulating the lines of each lot.''''

These are the only parts of the law material in the present question. It appears then that although the preamble speaks of setting out the lots, yet the enacting part of the law gives no power to the regulators to enter on any man’s land for any other purpose than that of regulating the foundations and party walls of buildings; consequently they have no power to enter at all for the bare purpose of ascertaining the lines of a lot, nor is there any appeal given but in case of a building. There is’great reason why the decision of the regulators, unappealed from, should be conclusive as to the building; because if it were not, the walls which were built under the authoi-ity of officers, whom the party was obliged to employ, might be afterwards pulled down. This would be a grievance too ruinous to be submitted to, and cannot be intended to be the meaning of the law. Indeed considerable inconvenience may result from questioning the boundaries in any part of the lot, after a house has been built. And if it was in the power of the court to make or alter the law, they would prevent that inconvenience by directing that the lines fixed by the regulators should be conclusive. But in a case where valuable property is to be affected, they are not authorized to draw inferences from slight expressions, not warranted by the principal parts of the law. No express power is given to fix the lines of the lot, when there is no party wall. But it is objected that a fee is given for setting out and regu- “ lating the lines of each lot” The answer is, that this cannot enlarge the power given before, but must be construed by reference to that power; that is to’say, the fee is given for setting out and regulating the lines, so far as is necessary for the purpose of regulating the front and party walls; and it is evident that part or the whole of two lines at least, must be set out and regulated in order to do this. This construction renders the whole law consistent, without doing violence to any part of it. I am therefore of opinion that the parties are not concluded by the regulation made in 'that part of the lot, which lies back of the house. There must of course be a new trial, because the. court suppose that the jury found their verdict under an opinion that the act of the regulators was conclusive. The weight oí the evidence was against the regulation. On the second trial, the parties knowing precisely on what point the cause will turn, will come better prepared to contest the real merits, that is, the true location of Coates's street; for that will be the only matter in dispute.

New Trial granted.

9th March 1771, 1 St. Laws. 549.