Pierce v. Lemon

7 Del. 519

• Court: Superior Court of Delaware
• Decided: July 5, 1862
• Status: Published

Opinion

The Court,

Gilpin, C. J.,

charged the jury: The object of the statute referred to, was to provide for the appointment of surveyors and regulators in the City of Wilmington, to set out the foundations, prescribing their depth and thickness, and to regulate the walls, their breadth, or thickness according to the height and dimensions of the buildings to be erected against them, and the uses to which they were to be devoted, between persons owning adjoining lots, and that the foundation of the walls in such cases, should be laid equally on the lands of the adjoining owners, the person building to be reimbursed one-half of the expense of such party wall, or so much thereof as the adjoining lot owner should have occasion to make use of in any building by him. afterward erected adjoining it, before using the same, the expense and value of which, was also to be determined and fixed by the regulators provided for in the act. In the present case, the party or division wall in question was erected in accordance with the provisions of the act, and was to be built of the width of nine inches, four inches and a half on either side of the division line and equally upon the adjoining lots of the plaintiff and defendant, and the complaint was, not that that regulation was violated, but that the defendant in erecting such party or division wall, wrongfully constructed it with certain openings or apertures in it, which had been described, and thereby abridged, or impaired the convenient use, privacy, occupation and enjoyment by the plaintiff of his messuage and premises adjoining it on the rear, and especially of his backyard, because, as he had contended, the defendant had no right to build the wall with such openings in it. But the court could discover nothing either in the language, or the design of the statute, and knew of no rule of statutory construction, or interpretation, which would deny to a party building a division wall under the provisions of it, the right or authority so to construct it, and they therefore considered that the construction of the wall in that manner by the defendant constituted no infringement, or abridgement of the plaintiff’s rights of property as the owner and occupant of the adjoiping messuage and premises, for which the law could afford him any remedy, or redress under the circumstances. The general principle of the common law on that subject was that no action lies for opening windows in party or boundary walls, though the privacy of the adjoining premises is thereby destroyed. 1 Saund. Pl. & Ev. 117. Moore v. Rawson, 3 Barn. & Cress. 340. Chandler v. Thomp son., 3 Camp. 80. The only remedy for the owner of the adjoining premises who was thus incommoded by the windows in such cases, was that adopted by the plaintiff in this case, and that was by means of blinds or some other erection on his own premises, to obstruct or exclude the view from such windows, or openings, and that the owner of them could not prevent, unless they had acquired the privilege of ancient windows. Ibd. And as the wall and openings complained of in this case, had only been erected and constructed according to the evidence, a year or two since, the defendant, of course, could lay no claim to such a privilege.

As to the other ground of complaint and damage alleged by the plaintiff, it the jury believed upon the evidence they had heard that any part of the roof or cornice of the stable erected by the defendant, or of the water spout attached to it, was so constructed by him as to project beyond the division wall on the plaintiff’s side, and overhung or overshadowed any part of his close and premises beyond the wall, it would constitute an unlawful and wrongful encroachment upon his property and an injury to his possession of it and his legal rights and title to it, for which he would be entitled to recover damages equivalent to the wrong and injury thereby done him in the premises.