Patterson.
In one of the counts in the declaration the dwelling house of the plaintiff was alleged to be ancient, and in another as a dwelling house which she and those under whom she had derived her title to it,had owned and possessed twenty years prior to the injury complained of. And such being, not only alleged in the narr, but a fact proved in the case, all the authorities which had been cited on the other side concede that when such is the case the owner of it may maintain an action for such a consequential injury to it, provided the owner of the adjoining premises has failed to exercise due care and skill, and to take the proper precautions to prevent any injury or danger to it; and in no case is that obligation of taking the proper precaution to prevent the injury, or avoid the danger of it, shifted from the defendant to the plaintiff in the action, unless the former has given the latter timely notice and warning of what he is about to undertake, and what may be the consequences of it to the property of the plaintiff. And that must be actual notice, for the law will not presume without it, that the plaintiff could know the necessity of such precautions as well as the defendant, whatever may be their respective situations at the time with reference to the building. There was, therefore, no evidence, and no fact or circumstance proved in the case, to warrant the jury in presuming that the plaintiff, although she was then residing in the house, had
any knowledge whatever at that time of the necessity or propriety of underpinning, or shoring up, or supporting her wall, or in any other manner to forestall and prevent the injury then likely to result to it from the undertaking of the defendants. It was their joh undertaken for their benefit, they knew the condition of the foundation of the wall as soon as they had unearthed it, and it was their duty to apprise her of it, and of the necessity of strengthening and supporting it in view of the use they were about to make of it, and it was their duty to fully admonish her of it, before they could require or expect her to do it. It was evident that such was their duty, if in any event, such was her duty; and it was great negligence on their part to neglect it, and still greater negligence after omitting to give it, to proceed with their undertaking without adopting the necessary precautions themselves to prevent the injury. The case of
Massey v. Goyner,
19
E. C. L. R.
821, is a direct authority on this point, in which it was expressly ruled that where such' notice is given to the plaintiff, the defendant is only bound to use ordinary care in the work. But even, if the plaintiff had received notice and had done the best she hould to secure and protect her house, and it had nevertheless been injured by reason of any negligence on the part of the defendants, the latter would have been liable.
Walters v. Pfiel,
22
E. C. L. R.
334. In regard to the other point first alluded to by him, that the plaintiff’s house was an ancient, and not a recent building, or in other words, had been erected, at least, twenty years before that time, he would only say that whatever doubt or question there might be in reason as to the soundness of the distinction first taken in the authority cited from 2
Roll. Abr.,
and referred to with more or less of sanction and approval in several of the subsequent cases also cited, between the undermining and falling of the soil itself simply, and of the foundations and walls of an ancient building or artificial structure with its additional weight erected upon it, all the cases, both English and American,
in which it had been at all adverted to, had, either clearly recognized, or declined to repudiate it, and had as distinctly declared without hesitation that for such an injury to an ancient building, at least, erected on the immediate confines of a man’s land, the action will lie whenever it is occasioned by the want of due care and proper skill and precaution on the part of the defendant in such a case. But could the ruling or the
dictum
as to the undermining and settling of the foundation and walls of a building recently erected in such a position, be possibly held to apply even at common law, much less under our statutory regulations, to building lots in the City of Wilmington, where most of the houses are built in compact rows along the streets with their respective party walls immediately on the partition lines which divide the lots ? Or could it with any truth or reason be said to be- the fault or folly of any proprietor to so build his house at any time in that or any other city ? The latest English case on the subject is that of
Hyde v. Thornborough,
61
E. C. L, R.
248, decided in the year 1846, in which the plaintiff and defendant were the owners of adjoining lands, and the house of the plaintiff had been supported for more than twenty years by the adjoining land of the latter, who dug a foundation for a new building, but entirely on his own land, so near the house of the plaintiff that the earth gave way beneath it, and it fell down. The declaration alleged that it had been built twenty years when that occurred, and Parke, B., charged the jury that if it had been so supported twenty years and both parties knew it, the plaintiff had a right to such support as an easement, and the defendant could not withdraw that support without being liable in damages for any injury that the plaintiff might sustain thereby, which damages should be such as to put the plaintiff in the same state in which he was before, but the jury should not give him a new house for an old one. And the same principle was recognized and ruled in the Supreme Court of the State of New York in 1853.
Farran
v.
Marshall,
19
Barb.
380.
As to the plaintiff’s adverse possession of the
locus in quo,
or so much of the defendant’s lot and ground as was occupied by that portion of the foundation and wall of her house which extended into it, the inception of it could not in the nature of things have been in a secret or furtive manner, as cellars are not dug, and the foundation walls of such houses are not laid in the dark, or in a single day, and could not possibly have been done in a covert, concealed or' hidden way; and if the objection which had been taken to it on the ground that in a few weeks or months after it was built, it had necessarily been filled in and covered up with earth, and had remained so until the defendant’s warehouse was begun, was good and available against it, then in no such case could any person ever acquire a legal title to the foundation and walls of his house beneath the surface of the ground, (or above either,' if that were so,) by adverse possession, however long it might continue. The fatal consequences which would follow the recognition of such a doctrine, was sufficient to show, not only the fallacy, but the utter absurdity of it. And the plaintiff having thus acquired the indisputable title and ownership of that particular portion of the foundation and wall by a peaceable and continuous adverse possession of it, and of the ground on which it rested below, the defendant, even if.
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Patterson.
In one of the counts in the declaration the dwelling house of the plaintiff was alleged to be ancient, and in another as a dwelling house which she and those under whom she had derived her title to it,had owned and possessed twenty years prior to the injury complained of. And such being, not only alleged in the narr, but a fact proved in the case, all the authorities which had been cited on the other side concede that when such is the case the owner of it may maintain an action for such a consequential injury to it, provided the owner of the adjoining premises has failed to exercise due care and skill, and to take the proper precautions to prevent any injury or danger to it; and in no case is that obligation of taking the proper precaution to prevent the injury, or avoid the danger of it, shifted from the defendant to the plaintiff in the action, unless the former has given the latter timely notice and warning of what he is about to undertake, and what may be the consequences of it to the property of the plaintiff. And that must be actual notice, for the law will not presume without it, that the plaintiff could know the necessity of such precautions as well as the defendant, whatever may be their respective situations at the time with reference to the building. There was, therefore, no evidence, and no fact or circumstance proved in the case, to warrant the jury in presuming that the plaintiff, although she was then residing in the house, had
any knowledge whatever at that time of the necessity or propriety of underpinning, or shoring up, or supporting her wall, or in any other manner to forestall and prevent the injury then likely to result to it from the undertaking of the defendants. It was their joh undertaken for their benefit, they knew the condition of the foundation of the wall as soon as they had unearthed it, and it was their duty to apprise her of it, and of the necessity of strengthening and supporting it in view of the use they were about to make of it, and it was their duty to fully admonish her of it, before they could require or expect her to do it. It was evident that such was their duty, if in any event, such was her duty; and it was great negligence on their part to neglect it, and still greater negligence after omitting to give it, to proceed with their undertaking without adopting the necessary precautions themselves to prevent the injury. The case of
Massey v. Goyner,
19
E. C. L. R.
821, is a direct authority on this point, in which it was expressly ruled that where such' notice is given to the plaintiff, the defendant is only bound to use ordinary care in the work. But even, if the plaintiff had received notice and had done the best she hould to secure and protect her house, and it had nevertheless been injured by reason of any negligence on the part of the defendants, the latter would have been liable.
Walters v. Pfiel,
22
E. C. L. R.
334. In regard to the other point first alluded to by him, that the plaintiff’s house was an ancient, and not a recent building, or in other words, had been erected, at least, twenty years before that time, he would only say that whatever doubt or question there might be in reason as to the soundness of the distinction first taken in the authority cited from 2
Roll. Abr.,
and referred to with more or less of sanction and approval in several of the subsequent cases also cited, between the undermining and falling of the soil itself simply, and of the foundations and walls of an ancient building or artificial structure with its additional weight erected upon it, all the cases, both English and American,
in which it had been at all adverted to, had, either clearly recognized, or declined to repudiate it, and had as distinctly declared without hesitation that for such an injury to an ancient building, at least, erected on the immediate confines of a man’s land, the action will lie whenever it is occasioned by the want of due care and proper skill and precaution on the part of the defendant in such a case. But could the ruling or the
dictum
as to the undermining and settling of the foundation and walls of a building recently erected in such a position, be possibly held to apply even at common law, much less under our statutory regulations, to building lots in the City of Wilmington, where most of the houses are built in compact rows along the streets with their respective party walls immediately on the partition lines which divide the lots ? Or could it with any truth or reason be said to be- the fault or folly of any proprietor to so build his house at any time in that or any other city ? The latest English case on the subject is that of
Hyde v. Thornborough,
61
E. C. L, R.
248, decided in the year 1846, in which the plaintiff and defendant were the owners of adjoining lands, and the house of the plaintiff had been supported for more than twenty years by the adjoining land of the latter, who dug a foundation for a new building, but entirely on his own land, so near the house of the plaintiff that the earth gave way beneath it, and it fell down. The declaration alleged that it had been built twenty years when that occurred, and Parke, B., charged the jury that if it had been so supported twenty years and both parties knew it, the plaintiff had a right to such support as an easement, and the defendant could not withdraw that support without being liable in damages for any injury that the plaintiff might sustain thereby, which damages should be such as to put the plaintiff in the same state in which he was before, but the jury should not give him a new house for an old one. And the same principle was recognized and ruled in the Supreme Court of the State of New York in 1853.
Farran
v.
Marshall,
19
Barb.
380.
As to the plaintiff’s adverse possession of the
locus in quo,
or so much of the defendant’s lot and ground as was occupied by that portion of the foundation and wall of her house which extended into it, the inception of it could not in the nature of things have been in a secret or furtive manner, as cellars are not dug, and the foundation walls of such houses are not laid in the dark, or in a single day, and could not possibly have been done in a covert, concealed or' hidden way; and if the objection which had been taken to it on the ground that in a few weeks or months after it was built, it had necessarily been filled in and covered up with earth, and had remained so until the defendant’s warehouse was begun, was good and available against it, then in no such case could any person ever acquire a legal title to the foundation and walls of his house beneath the surface of the ground, (or above either,' if that were so,) by adverse possession, however long it might continue. The fatal consequences which would follow the recognition of such a doctrine, was sufficient to show, not only the fallacy, but the utter absurdity of it. And the plaintiff having thus acquired the indisputable title and ownership of that particular portion of the foundation and wall by a peaceable and continuous adverse possession of it, and of the ground on which it rested below, the defendant, even if. it was admitted that he was the owner of all above and around it within the limits of his lot, had no right to build and erect upon it either in whole or in part the wall of such a large and heavy warehouse without strengthening and securing the original defects and insufficiency of it to sustain the additional weight of such a superstructure, when erected upon it.
The Court,
Gilpin, C. J.,
charged the jury,
after recapitulating the facts proved and stating the alleged grounds of action and of defence of the parties respectively, that it is a well settled rule of law that continued, uninterrupted and adverse possession of land for twenty years and more, will make a valid title to the same. The possession must
have been adverse, i. e. upon a claim, of right or title. If the possession was taken furtively or secretly, it would not be adverse in law, and would not acquire a title. If the possession was acquired openly and publicly, and held uninterruptedly under a claim, of right, it would after twenty years, have ripened into a good title. But it is contended that Mrs. Sharpe, the owner of defendant’s lot when plaintiff’s house was built, had no notice at the time that Elias England, the builder . of plaintiff’s house, was digging the cellar or building on her adjoining land, and, under the circumstances, the possession cannot be held adverse. In answer to that, if you are satisfied from the evidence that England openly and publicly dug the cellar and laid the foundation for his house on the land then owned by Mrs. Sharpe, the latter who had opportunity to look after her interests, was bound to take notice of the fact that the wall or part of it was on her ground. If from the evidence, you are satisfied that the entire wall was on-plaintiff’s ground, or that she had title from adverse possession, the defendant had no right to build on it. If you are not satisfied that the wall was on her own land, but partly on hers and the defendant’s, and therefore a party wall, although not originally erected as such, or although in fact a party wall, then the question arises if defendant had the right to build on plaintiff’s foundation without first complying with the provisions of the charter of Wilmington ? The Chief Justice here read sections 74 and 75 of chapter 73 of the Revised Code, page 228, in relation to the appointment by City Council of surveyors and regulators of party walls and fences, their duties and the obligations imposed upon persons erecting party walls. If they had complied with the statute, they had a right to use said walls, but
not before
the value thereof had been assessed by the regulators and the same had been paid, or they would be liable to a penalty of fifty dollars. Assuming this to have been a party wall (a jury may presume a wall standing 20 years to have been laid in due
form) and that defendants had had the regulators upon it and the value assessed and said value was paid to plaintiff by defendants, who thereby acquired a right to use said wall, this did not exempt them from the use and exercise of all proper care and caution in building upon it. A person may use his own property as he pleases with this simple qualification, that he does not injure his. neighbor, may dig his cellar as deep as he pleases on his own margin, but must use care and skill to avoid injuring his neighbor’s property.
The all important question in this case is one of negligence or no negligence. This is to be considered in the light of all the transactions in the case; and the necessity for the exercise of care, caution and skill is enhanced in proportion to the danger to adjoining property from the nature of the work to be done. What might be negligence in one .case would not be in another, e. g., the same care would not be necessary in building upon a "foundation standing upon clay or rock, as one upon sand or quagmire. The degree of skill depends upon the circumstances in each particular case, and of the risk of doing injury to the adjoining property, whenever there is absence of proper care or caution considering the circumstances of the case, there must be negligence, and if there is negligence the party guilty of it is answerable for damages. It is admitted by the defendants that they built their wall partly on the projecting ledge of the plaintiff’s wall claiming it was on their land. If the foundation wall was on plaintiff’s exclusive land by her paper title, or by adverse possession, defendant had no right to build on it, and if a party wall, had no right to build on it without first having the value regulated and paying the value, and if they did so, they were guilty of an unlawful act, and therefore did not exercise reasonable care and skill and are responsible for any injury resulting from it. You will also consider if any and what injury was caused by the damage to the roof, in the excavation for the cellar, in the erection of the building, and in the general
prosecution of the work, taking into consideration all the attendant circumstances. If reasonable care was used, defendants are not responsible, but if any time they failed in a'ny material respect to exercise care and skill, they were guilty of negligence, and of the injury resulting from such negligence. If you consider defendants guilty, you are to assess damages commensurate with the injury sustained by plaintiff.
The plaintiff had a verdict for $2575.00.