Wilmington daily gazette., 1873-05-24
o6vk4 pa8osEBiNus.
NHw CAsr1E, Nav 2s, ls73

We ahall not trouble you by enumerating the
referred to by counsel, but shall refer to the
general principles me ltioned in the cases, and
which are universally recognized, especially those
of the common law, which is the birth right of
every English and American citizen. This Is an
action against the defendants for damages for me-
gaence in digging their cellar and erecting their
building, which negligence consisted in this: that
| they dug ont large portion OF their cellar, and
afterwards abandoned the work for two months
/ or more, during which time the parts SO excava-
ted became flooded with water, which soaked
through Mrs. ODaniel's foundation walls into her
cellar, and injured said walls. That afterwards
they erected their building, partly their own
4 and partly on the stone foundation of plainth 5
building, which is claimed they had no right to
do. That they allowed the gutter way to become
Ubstructed by cart aud pile OF bricks, by reason
Ot which the water coming down the south side
of Fourth street, after heavy rain had fallen,
was turned into cellar OF plaintiff and damaged 1t.
By these acts of negligence plaintiffs foundation
settled, and thS walls and partitions OF Her honse
were thereby cracked and injured to the extent OF
rendering her house unsafe. That they damaged
her roof, and sufficiently repaired it; SO that
j the rain water down the walls, inlurtng them
and the pDper on them.
| TO thia action the defendants answered "nOt
guilty." and that il plaintiff was injured, 1T was
Il from no fault of theirs. That they had perfect
right dig their cellar to tho depth it is, and to
erect a stone house OH their own grounds, within
their own lines, and i'll so doing acted with all
reasonable caution and skill, anu without any ne
gllgenco. That part of plaintiffs foundation
wall was on their land, and they had a right TO
build on it without considering tho light of PLAIN
tiff to build on 1t.
This affects the question OF the plaintiffs right
to the ground on which the foundation wall
stands. Plaintiff insists she had an adverse pos
session for more than twenty years, by which she
has acquired in fact aud IN law n valid possession,
and therefore said ground was not the property of
the Bakers Union, but hers when the defendants
building was erected, and is now, although form
erly belonging to Mrs. Sharpe, who sold it to tho
Bakers Union.
1t is settled rulo of law that continued unin-
terruptcd and adverse possession of land for 20
years ami more, will mako valid title to the
| same The possession must have been adverse, /.
G., upon claim of right or title. If the possess
sion was taken furtvely or secretly, it would not
be adverse in law, and would not aquire q title.
| 1T the possession was acquired openly ami pub
licly and held unlnterruptedy undor q clalm OF
right ic would after 20 years havo I.pened into a
good title But it is contended thnt Mrs. Sharpe,
| the owner where plaintiffs house was built, had
| no netice at the time that Elias England, tho
builder of plaintiffs house, was digging tho celur
| or building on her adjoining land, and under the
| circumstances the possession canpot be held ad-
verse. In answer to that il you are satisfied from
the evidence that England openly and publicly
dug the cellar and laid the foundation for his
house on tho land then owned by Mrs Sharpe,
the latter who had IN opportunity to look after
|
Iact, that the wall, or palt of it, was on her
| ground.
II from the evidence you are satisfied that the
entiro wall was on plaintiffs ground, or that she
had title from adverse possession, the dOfendeut
/ had no right to build on it,
IL you are not satisfied that the wall was on her
own land but partly on hers and the defendants,
and therefore party wall, although not originally
erected rs such, although in fact party wall;
I then tho question arises If defendant had tho
N.Tfv t,I
lrst complying With the provisions OF the charter
of Wilmington Tho Chief Justice here read
| sections IA and 70 of chapter 70, of the revised
code pago 22S, IN relation TO the appointment by
City Council OF surveyors and regulators OF party
walls and fences, their duties and the obligations
imposed upon persons erecting party walls, ii
they had complied with the statute, they had q
right to use said wall but not before the value
thereof had b4en assessed by tho regulators
and the same had been paid or they would be lir.
/ bic to penalty OF fifty dollars.
Assuming this to have been party wall. Ia
| jury may presume wall standing for 20 Years 10
have been laid In due form and that defendants
/ had had the regulations upon il and the yalue
assessed, and said value was paid to plaintiff by
l defendants, who thereby acquired right TO use
said wall, this did not exempt them from Inc
use and exercise Of all proper caro- and caution i'm
/ building upon it. person may use his own
property us he plcases with this simple uuallca-
| LiOn that lie does not lnjure his neighbor-lnav
1
margin, but must use care and skill to avoid in
juring his neighbours property.
The all important question in this case is one
| of negligence or no negligence. This ia To he
considered IN the light of all the transactions in
i the case and the necessity for the exercise of
care, caution and skill is enhanced in proportion
to the danger TO adjoining property from the ma
/ ture of the work to he done. What mipht he
negligence in one case would not be in another
| c. g., the same caIa would not be necessary IN
/ n fDuO6atinn araIa
one upon clay or quagmire. The degree of skill
depends upon the circumstances in each particu.
lar case, and if the risk of doing injury TO the
adjoining property. Wherever there Is absence
| 0I proper care or caution considering the circum-
stances OF the case, there must be negligence and
IL there Is negligence, the party guilty OF it is
| answerable for damages
1t is admitted by the defendants that they built
| their wall partly on the projecting ledge of the
plalntlhs wall, claiming IL was on their land
Ii the foundation wall was on plaintiffs ex
elusive land, by her proper title, or by adverse
possession, defendant had no right to build on
II and 1t a party wall, defendant had no right
10 Duliu on IL without first having the value regu-
lated and paying the value, and if they did SO
they were guilty of an unlawful act, and there
lore did not exercise reasonable care and skill
ana are responsible for any injury resulting
from it.
You will also consider IL any and what iniurv
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 attendant
circumstances. Ii reasonable care was used, de-
| PENDANTS are not responsible but if at any time
they failed in any material respect to exercise care
and skill, they were guilty of negligence, and of
the injury resulting from such negligence. II
you consider defendants guilty, you are to assess
by plaintiff
The jury retired at II A. M. and in an hour
brought In verdict for plaintiff for sci
While the jury was out Mr.. Bird, counsel for tbe
defendants, took exceptions to the charge OF the
. court ODtalninIr In Ia