Brown v. Werner

Robinson, J., delivered the opinion of the Court. This suit was brought to recover damages for injuries done to the appellee’s house on East Baltimore street, by the careless and negligent manner in which the house of the appellant Otto, next adjoining, was improved; and for the direct losses consequent upon such injuries sustained by the appellee in his trade and business. The appoellee’s house was injured by the partial falling in of the division wall between the two houses, and this was caused by digging too near said wall, for the purpose of deepening the cellar under Otto’s house. No notice was given by the appellant, Otto, of his intention to deepen the cellar, and evidence was offered to show that the excavation was done in a careless and negligent manner.

The appellee’s house was built more than twenty-five years before the injuries complained of, and during all this time, the division wall had been used for the common support of the two houses, the joists of the apipellee’s house resting upon the wall. The plaintiff also offered in evidence, a deed of the property, one of the boundaries in which, it was stated, called for the division wall in question. The Court instructed the jury, that if they should find the wall between the two houses to be a party wall, and ¹⁹ that the defendant Otto, employed the defendant Brown, to improve his building, and with a view to such improvement, without giving notice to the plaintiff of such intention, the cellar of Otto’s house was dug below the foundation, and that the same was done so carelessly and negligently, that portions of the said wall fell in, and caused injury to other portions of the said wall of the plaintiff’s house, and hazarded the falling in of the entire Avail, so as to make the occupation of the plaintiff’s house dangerous, and that he was for some days unable to carry on his business, then the plaintiff was entitled to recover such damages as would enable him to reinstate the wall and house itself, in as good condition as they were before the injury, and as would compensate him for the loss consequent upon the interruption of his business. To the granting of this instruction, and to the refusal to grant the several prayers offered by them, the defendants excepted.

The Court’s instruction is objected to in the first place, on the ground that there was no evidence from which the jury could find the Avail betAveen the houses, was a party wall, but it does not appear from the record, that this objection Avas made below, and it cannot therefore be made in this Court. The question however, is presented by the defendants’ second and fourth prayers, and it becomes necessary for us to determine whether there was any evidence from which the jury could find the wall to be a party Avail. The appellants contend that there was not, because the appellee’s deed shows, that the wall was built exclusively upon the land of the appellant Otto. Without attempting a precise definition of the term, “party wall,” it is sufficient to say, that ordinarily, it means a Avail built partly on the-land of one and partly on the land of another, for the common benefit of both, in supporting timbers, used in the construction of contiguous buildings.

If the character of the wall in question, depended solely upon the appellee’s deed, there might be ²⁰ some ground for the appellants’ contention. But a division wall may become a party wall by agreement, either actual or presumed, and although such wall may have been built exclusively upon the land of one, if it has been used