The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1867-03-18
LEGAL INTBLLIGENL. L. q.


Court Of Common Pleas-The following opnioN
upon an argument in the Common Pleas was
read by his Honor Judge Brewster in this
Court, on Saturday last:-
City of Philadelphia VS.. Abraham Friday aud
John Crump Opinion by Judge Brewster
This is an action Tor special mJnncuon. The
bill AYERS that the defendant Friday is the
owner of q lot at the southeast corner Of Second
! and Chcsnut streets in this city, and of a brick
building, erected partly on said lot and partly
! on Second street. public highway OF the city,
laid out of the width OF nifty ieet, long before
| the erection of said building" That the north
| wall of the said building enCrOaChes upon
! Second street about two feet nine inches and
seven -pghths Of an inch, and that the south
! wall also encrOaches upon said street about two
! feet three and one-iOurth inches, a plan of said
| alleged enCrOachment being attached to the bill
! as Exhibit A. The bill further charges that the
! defendant Friday has recently torn down the
! upper part of sa building, intending to erect
new structure upon the first story, and then by
| removing the first story, and replacing ii in a
style to CORES pond with the upper part to
create au entirely new butldmg, and thus to
peTpetuGte the CnCrOaChment. The complain
ants then refer 70 the Act of April l5, 1882, de-
Clariug that no length of possession of any part
OF public street in this city shall be available
to par the removal of any nuisance by buildings
which had been, or might thereafter be erected
upon any street, lane, or alley in the city.
And the bill concludes with the usual pray
ers for special and perpetual iniunctons.
and that the building Is now in process of
alteration; buj the defendant denies all the
obligations OF ContriyanCe" contained in the
bill, and he ayers that the act of 1882 has no
application to q building erected before l72l."
He also alleges that ''as appears by deed in
the line OF his title" the foundations of his
building were 'lad before 1907, Daniel England
having received proprietary grant III 1893,
and having ere cted a building on its present
site some time theredtter" The defendant, while
he asserts that he has no ''knowledIe of the
| enCrOaChments stated in the BILL" yet admits
! that ''he believes Exhibit A is true" He, how
| ever, contends that prior to the passage of the
act OF February IA, 1921, regulating party walls,
| etc, it was impossible TO have the line
| OthCIally run, and he insists that the Common
wealth is a necessary party-that even II she
| were a complainant, mo court of equity would
| decree that building erected so far back as
1907 should be removed without just Compensa-
tion to the owner for his loss, which would be
! in this case very erievous."
Upon the hearing, the complainants read the
! atldavits Of d. hudson Shedaker and Oliver
! Evans. These were received without obiec-
| tion because case OF nuisance Is an exception
| to the rule iOrbidding the reading OF atldaylts
! in opposition to the answer. Lord Eldon, who
said in Clapham VS.. White Is Vesey 3, @, that
| not one of five hundred atiidaVlts could Oe adj
mitted after ans weT, in the later case Of Peacock
! We. Peacock 6 Vesey, 50) allowed such atlida-
! Wits TO be read in a partnership suit And the
| exceptions have been extended to cases of waste
and nuisance. (See a tull collection of cases in
"
! editions OF Daniels Oh. Pr, II, 6S.)
Mr.. Shedaker is the Surveyor and Regulator
| of the Third District Of this city. He has had
large experience IN his profession, and he quail
tles with great cearness to the fact of the al
legged encrOaChment and gives the data and
tests of his measurements, and the results, from
which it would appear that he proceeded III
this matter with great care and skill.
The affidavit of Oliver Evans IL to the effect
that tue defendant Friday has been an occupant
OF the store in the third house below this cor
ner, as tenant 10 Mr.. Evans for several years
past; that Mr.. Evans was compelled, when he
put up new building, to reCede t. the line of
the street; and that when Mr.. Friday was III
treaty with MIR. Evans for a lease OF the new
building, he spoke of putting up a frame and
sash on, the line OF the adjoining build
ings, and that he was then informed OF
the encroaChment of Mr.. Evans old house. and
that his proposed extensions would be at his
cost and risk The complainants also gave ii
evidence Holmes map, and read from William
| Pcnn's letter 10 the Free Society of Traders
dated August l6, 1858, and from the city char
ter of October 25, lTOl. The first patent fol
this lot, issued April l, 1893, to Humphrey Mur
ray, was also referred to as recorded in Exem
plihCatlOn book 3, p. So.
The averment that the defendants present
alteration is "a device and cOntrlvance' is en
r phatiCally denied by the answers not, in ou
| opinion, sustained by the contract between thu
? two defendants exhibited to us, and may there
| fore be dismissed from the case.
Looking at thep pleadings and afiidavits, W
t ! may regard the following facts as established
| by admissions or by uncOntradicted proof
e First That Second street in this city, wa
laid out of its present width of 80 feet, at leas
as far back as 1858, and that the first patent 70
j this lot was issued to Humphrey Murray, Apr
l, 1893.
d encroaches upon this highway, so that, at tina
part, II is less than AZ ieet in width.
n Third That before MIR. Friday purchased thi
s property he was advised of this encroaChmen
/ The first point is clearly proved by Holme
J. Map, the aumssibility and reliability OF whlc
J. were the subject of much discussion IN the cas-
S, of the Commonwealth VS.. Alburger, VIII, 46
g 1t was there received by Chief Justice Glbsol
and his ruling was sustained by the whole Cour
~ Sergeant j., in a very able opinion. gives a
~ interesting history of Penn's original Design
" city of l0,0 600 acres, of his change oil pan VI
IL grant of the liberty lands, and the preparauo
n OF this Map OF the city.
~ lie cites all the decisions to ancient recorS
Ia from the case in l Salk, 28l (where, to prove
u forgery OF deed, chronicles were admltteu
OF snow lhe lme OF the surrender OF ChaIles
ne ana as 10 TINS map, says 'it was undoubtedly eN
an dence," and that 1t lays down the streets OF u
re CITY, ana the hye public squares lying aero
ig with the rest OF the ground assigned for lots
d, left vacant" That this map existed in l6
r. would seem 10 be very clear from the note
IL Smiths Laws, vol. 2, D. lO7 quoting from Prou
lie | from the letter OF William Penn TO the FIR
It's Society of Traders, and also from Reeds eXpl
US nation of the maD of the City and Liberties.
We was not denied upon the argument that the tl
al patent for this lot was issued April l. $685. III
oy is the earliest trace of title averred in t
nd answer.
n The enCIoachment would appear to be clear