Wilmington daily commercial., 1873-05-24

she had title from adverse possession, the de-
fendant had no right to build on It,
II you are not satisfied that the wall was not
on her own land, but partly on hers and the de-
not originally erected as such, OF although, in
fact, party wall. than the question arises Had
defendant right 10 build on plaintiffs founda-
tion without first complying with the provisions
OF the charter OF wilmington The Chief Justice
here read Sections "a and 75, of Chap. rs, of the
Revised Code, page 1873, In relation to the APP
pointment by City Council Of Surveyors and reg
ulation Of party walls and fences, their duties,
and the obligations imposed upon persons erect
ing party walls. II they had complied with the
statute, they had right TO use said wall, but
rot BEFORE the value thereof had bean assessed
by the regulators and the same had been paid
or they would be liable to penalty of fifty do,-
lars.
Assuming this to have been q party wall, ia
jury may presume wall standing for 20 years
to have been laid In due form , and that defen-
dants had had the regulators upon IL and the
value assessed, aud said value was paid to plain
TN, by defendants, who thereby acquired right
to use said wall, this did not exempt them from
the use and exercise of all proper care and eau
ton in building upon it. A person may use his
own property as he pleases, with this simple
qualification, that he does not injure his neigh
bor-may dig his cellar as deep as he pleases in
his own margin-but must use care and skill to
avoid injuring his neighbor's property.
The all important question in this case is one
OF negligence or negligence. This il to be con-
sidered IN the light Of all the transactions in the
casei and the necessity fol- the the exercise of
care, caution and skill is enhanced in proportion
to the danger OF adjoining property from the
nature of the work TO be done. What might be
negligence in one case would not be in another;
9. g., the same care would not be necessary in
building upon foundation standing upon clay
or rock, as one upon sand or quag. mire The
degree of skill depends upon the circumstances
in each particular case, and of the risk Of doing
injury to the adjoining property. Wherever
there is absence OF proper care or caution con-
sider1ng the circumstances of the case there
must be negligence, and if there is negligence
the party guilty of it is answerabe for damages.
It is admitted by the defendants that they
built their wall partly at the projecting ledge Of
the plaintiffs wal, Claiming it was ON their land.
II the foundation wall was on pltff's exclusive
land by her paper title, or by adverse possession
defendant had no right to build ON il and il .
party wall, defendant had no right to build on
it without first having. the value regulated and
paying the value. II they did 80, they were
guilty of an unlawful act, and therefore did not
exercise reasonable care and skill, and are re-
sponsible for any injury resulting from it.
You will also consider, il any and what, injury
was caused by the damage to the roof in the
excavation for the cellar; in the erection of the
building, and in the general prosecution of the
work, taking into consideration all the atten-
dant circumstances. II reasonable care WAS used,
defendants are not responsible. but il, at any
ercise care and skill, they were guilty of negli-
genoe and OF the injury resulting from such
negligence. II you consider defendants guilty,
you are to assess damages commensurate with
the injury sustained by plaintiff.
The jury retired at II A, M, and in an hour
brought in verdict for plaintiff for 2,575
While the jury were out Mr., Bird counsel for the
defendants took exceptions to the charge of
the Court, obtaining leave to file them subse-
quently.
Charles Raustead us John A. Harris AS
sumpsit for 10, with interest making a
claim Of about $2lO0 Plaintiffs agent furnished
defendant S3,616 feet of lumber in 1879, and suit
is to recover it's price. Defendant contended
that it was Of inferior quality to that ordered.
Jury seemed to think some allowance should be
made, and returned verdict for &1506. &c. Bird
for pltff., Bayard for deft.
BENZ. O. Pearce, d. b. a., Us Edmund Provost.
Appeal from Justices decision. Iu 1868 Provost
bet Archie Given 8l00., that Jacob Richardson,
(then candidate for Sheriff, had been mem
Der of the Union League" Pearce held the
stakes, and in 1868. Provost sued him for the
whole of them, 5000, alleging that he had won,
but upon trial, the Court ruled that such bet
was''against public policy" Provost now sued for
800, his half Of the stakes. Defence set up was
thatthe previous decision also covered this case
and also that Pearce was of opinion Provost had
not won the bet, by establishing Richardson's
membership in the "League."
Case on, when Court adjourned to Saturday,
at TO- A. M. Gordon for Provost and Bayard
for Pearce.