Sauer v. Monroe

20 Pa. 219, 1852 Pa. LEXIS 237

• Court: Supreme Court of Pennsylvania
• Decided: May 17, 1852
• Status: Published

Opinion

The opinion of the Court was delivered, by

Black, C. J.

The judge who tried this cause put it to the jury on what we think is precisely the true principle. The plaintiff below built a party-wall on the line between his lot and that of the defendant. It was perpendicular at first, hut settled afterwards, so that it leaned at the top several inches on the side of the defendant. This did not discharge the defendant from his obligation to reimburse the plaintiff one moiety of its value, agreeably to the act of 1820 (7 Sm. Laws 263). But by the act of Assembly and by the decision of the judge, he was required only to pay one-half of what it was worth to himself, and not an equal share of its cost. The jury were allowed to deduct the damage from his part of its price. The defendant has nothing to complain of, since the whole misfortune resulting from the defect in the wall is thrown upon his adversary.

I will not say that the provision in the statute for the fixing of the value of party-walls by the regulators or by arbitrators is merely permissive, or that it may be disregarded in all ca?es. But where the last builder breaks into and uses the wall without notice to the other pqrty of his intention to do so, he must be considered as declining to choose arbitrators, and as waiving his right to a decision by the regulators.

Judgment affirmed.