Wilmington daily commercial., 1873-05-24
COURT PROCEEDINGS.
NEW CAsr1r NInr OF

New CASTLE May "a, 1873.
The Courts were opened at the usual hour
and in the case ef Elizabeth Z. O'Daniel Va. the
Bakers Union, of Wilmington, the Court dey.
cred the charge TO the jury. The charge occu-
pied three-qnarters of an hour, and was pro-
nounced by the Chief Justice, substantially, as
follows
We shall not trouble you by enumeratng the
cases referred to by counsel, but shall refer to
the general principles mentioned in the case
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 negligence in digging their cellar
and erecting their building, which negligence
consisted in this, that they dug out large por-
tlon OF their cellar, and afterward abandoned
the work for two months or more during which
time the parts 80 excavated became Hooded with
water, which soaked through Mrs. ODaniel's
foundation walls into her cellar. and injured said
walls that afterwards they erected their build
ing, partly OH their own and partly on the stone
foundation OF plaintiffs building which, it ia
claimed, they had no right to do; that they al
lowed the gutter-way to become obstructed bv a
cart and pile of bricks, by reason of which the
water, coming down the south side Of 4th street.
after heavy rain had fallen, was turned into the
cellar OF plaintiff and damagedit. BY these acts
OF negligence plaintiffs foundation settled. and
the wallis and partitions of her house we're there
by cracked and injured to the extent Of render
ing her house unsafe; that they damaged her
roof and never sufficiently repaired it, 80 that
tne ram water ran down the walls, injuring them
and the paper on them.
To this action the defendants answer "not
guilty, and that, If plaintiff was injured it was
from no fault OF theirs that they had a perfect
right to dig their cellar to the depth it is and to
erect a store house on their own grounds with
all reasonable caution and skill, and without any
negligence; that part OF plaintiffs foundation
wall was on their land, and they had right to
build on 1t without considering the right of
plaintiff to build on it,
This affects the question of the plaintiffs a
right to the ground on which her foundation
wall stands. Plaintiff insists she had an ad-
verse possession forImore than 20 years by which
she has acquired, in fact and in law, valid pos
session; therefore, said ground was not the prop-
erty Of the Bakers Union but hers, when the
defendants building was erected, and is now, al
though formerly belonging to Mrs Sharpe, who
sold it to the Bakers Union.
1t is a we'll settled rule of law, that continued
uninterrupted and adverse possession OF land,
for 20 years and more, will make valid title to
the same. The possession must have been ad-
verse, I. e., upon claim of right or title. II
the possession was taken furtively, or secretly
1t would not be adverse in law and would not ac-
qnlre title. II the possession was acquired
openly and publicly, and held uninterrnptedly
under claim OF right, it would, after 20 years,
have ripened into good title.
But 1t ID contended that Mrs. Sharpe, the own
or when plalntiff s house was built, had no notice
at the time that Elias England, the builder of
plaintiffs house, was digging the cellar or build
ing ON her adjoining lana aud under the circum-
stances the possession cannot be held adverse.
In answer to that, il you are satisfied from tho
evidence that England openly and publicly dug
the cellar and laid the foundation for his house
on the land then owned by Mrs. Sharpe, the lat
ter, who had opportunity to look after her in
terests, was bound to take notice of the fact
that the wall, or part of it, was on her ground.
II, from the evidence, you arc satisfied that
the entire wall was on plaintiffs ground, or tina