Delaware state journal. [volume] (Wilmington, Del.) 1870-1883, 1873-05-31
ssw CASTLE COUNTY COURT.

Ne" we're opened at the usual hour,
Co S ,hs ease OF Elizabeth e. 0'Daniel Is.
~ pskers Union OF Wilmington, the
~. us,,t delivered the charge 10 the Jury.
ny charge occupied three quarters Of an
t tne and was pronounced by the Chief
9 9oss,cs sub,tentlally as follows
'u W. nall not trouble you by enumerat-
,.n,he cases referred 10 by counsel, but
" iI refer 10 the general principles men
. spsd in the cases, and which are uni
Ie osIl recognized, especially those of
,hs cannon law which Is the birth right
w ~ avery English and American citizen.
rhIs IA an action against the defendants
Co. damages for negligence In digging
,Sslr cellar and erecting their building, |
Inch negligence consisted In this that
they dug out q large portion OF their
cellar and afterwards abandoned the work |
for Two months or more, during. which |
lime the parts so excavated : became
gooded with water which soaked through
Nrs. O'Daniel's foundation walls Int
her cellar and injured said walls That
aIerwards they erected their building
a.,,iv On their own and partly on the
i,one foundation of plaintiffs building,
wbich II Ia claimed they had no right to
a. That they allowed the gutter way
~ ha opsirueted by cart aud pile of
h,eks. BY reason Of which the water
canning down the south side Of Fourth
s,rset after heavy rain had fallen was
turned into the cellar of plaintiff and
damaged IL. By these acts of negligence
nlanil1rs foundation settled, and the
walls and partitions Of her house were
thereby cracked and injured TO the extent
of rendering her house unsafe. That
tb,y damaged her roof, and never sufh-
GENTLY repaired II, so that the rain water
ran down the walls injuring them and
the paper on them.
10 tbls action the Defendants answer
iinot guilty.n and that IL plaintiff was
Iniured II was from no fault of theirs.
That they had perfect right 10 dig their
cellar TO the depth IL Is, and 10 erect a
More house on their own grounds, with
in their own lines and in so doing, acted
with all reasonable caution and skill, and
without any negligence. That . part Of
paintiff7s foundation wall was on their
And and they had a right to build on II
without considering the right OF plaintih
10 build on II.
This affects the question Of the plain
ud's right 10 the ground on which her
foundation wall stands. Plaintiff insists
she had an adverse possession for more
than 20 years, by which she has acquired
in fact and In law a valid possession and
therefore said ground was not the prop
erty Of the Bakers Union but hers when
The Defendants building was erected,
and Is now, although formerly belonging
to Mrs. Sharpe, who sold IL TO the Bakers
Union. ....-. .IL.r
IL Is we'll settled rule Of law that
continued, uninterrupted and adverse
possession OF land for twenty years and
more, will make valid title to the same
The possession must have been adverse
a.. upon a claim OF right or title, II the
possession was taken furtively or secretly
II would not be adverse in law, ana
would not acquire title. II the posses
sion was acquired openly and publicly
and held uninterIuptedly under claim
Of right, II would after twenty years
have ripened into good title. But II Il
contended that Mrs. Sharpe, the owne
when plaintiffs house was built, had NJ
notice at the time that Elias England
the builder of Plaintiffs house, was dig
gng the cellar or building on her adJoin
Ing land, and, under the circumstances
the possession cannot be held adverse
In answer to that, II You are satisfies
from the evidence That England openl.
aud publicly Dug the cellar and laid tn
foundation for his house on the land the
owned by Mrs. Sharpe, the latter VIII
had opportunity to look AFTER her intel
ests, was bound TO take notice of the fac
that the wall or part of 1t was on he
ground.
If from the evidence, you are Statistic
that the entire wall was on plaintiff
ground, or that she had title from &C
verse possession, the defendant had n
right TO build on II.
III Won are not satisfied that the wa
was on her own land, but partly on hel
and the defendants, and therefore
rarity wall, although not original
encted. a. such, or although 10 fact
tarty wall, then the question arises
defendant had the right to build Q
plaintiffs foundation without FIRST COZ
plying with the provisions OF the chart
ofWilmington The Chief Justice ne
read sections "a and rs of chapter ~
the Revised Code, page 228, In RELATE
To the appoin,ment by City Council
surveyors and regulators OF party wal
4 and feuds, their duties and the obllg
tons Imposed upon persons erectil
party walls. Ii they had complied viii
& the statute, they had right to use pa
walls, bnt not before the value there
X had been assessed by the regulators al
the same had been paid, or they wou
Il beliAble TO a penRltyof hfly dollars.
q Assuming this to have been par
wall "a Jury may presume wall stan
n ing 20 years TO have been laid In d
& form) and that defendants had had
regulations upon Il and the value assess
VI and said value was paid to plaintiff
defendants, who thereby acquired a RIG
81 10 use said wall this did not exempt thu
\ from the use and exercise of all prof.
81 care and caution in building upon It,
person may use his own property as
pleases with this simple qualifieati'
M that be does not injnre bis nelghbor, n
g. dig his cellar as deep as he pleases on
own margin, but must use care anc 81
81 TO avoid injurlng his neighbours proper
The all important question In this 9
Is one of negligence or no negligence. L
b 10 " be considered In the light Of all
a transactions In the case; and the nee
sity for the exercise of care caution Z
skill ls enhanced in proportion ITO
danger TO adjoining property from
nature of the work to be done. W
might be negligence in one case wo
f. mol be in another 9. 9. the same G
would not be necessary 10 building ~
4 foundation standing upon clay or re
Is one upon sand or quag-mire. Inc
gree of skill depends upon the cire'
stances in each particular case, ant
the rick of doing injury to the edjol1
property, whenever there is absence
proper care or caution considering
n circumstances of the case, there mus
negligence, and II there is no neghg'
The party guilty Of It is answerapie
damages.
1t is admitted by the defendants
& they built their wall partly on the
leeIing ledge of the plaintiffs wall eli
lug Il was on their land.
If the foundationwall was on plain
exclusive land, by her paper title, 0
h adverse possession, defendant had
right to build on 1t, and If party
had no right to build on II without
having the value regulated and pa
lhe value, and If they did so, they
guilty of an unlawful act, and then
Al did not exercise reasonable care and
aud are responsible for any injury re
ing from IL.
You will also consider II any and
Injury was caused by the damage :
roof; in the excavation for the celli
The erection Of the building and ]
general. prosecution Of the work, u
into confederation all the attendan
If reasonable care was used Defen'
are not responsible, but If any time
JAILED In any material respect TO ex'
care aud skill, they were guilty OF
gence, and of the injury resulting
euch'negligence. 1fyou consider Dt
ants guilty you are to assess dar
eeonmensurate with the injury sust
n BY plaintiff
IL The Jury retired at II a. m, and
l0ur brought Ia a verdict for plant