Daily Republican., 1885-05-27
ments and servitudes (1s63) page 42s
chapter Nv.

ments and servitudes (1S63) page 429
To the plaintiffs complaint of griev
ance, the defendant pleads that he va.
justified In doing the sct compliance
Of by reason Of u special or pafticuiaI
custom prevailing In the city of VIII
minRton, that In case like the present
the party whose lot 10 to be injured BY
an excavation Of contiguous soil, If ht
wishes protection to his own sol
against such excavation, must furnisf
It himself, and with his own means
It Ii proper you should understand
what, In law, custom 10, for thu
defense In this case 10 Of this plea alone
There is no denial of the act done; It Il
admitted BY the plea, which coHfessel
1t, but seeks to avoid the efecti uf 1t By
reliance upon the alleged custom. Gus
toms are of two kinds-general and
special.
General customs are such as apply te
the whole community or State |; they
are the common law Of that State OF
kingdom. Our ancestors who settled
this country were chiefly English, and
brought with them, for their govern
ment In the social state, the common
law Of England that IL, the law not
PeOn~rA ~ ouy iC8 Aoi0sA 70 0ubHOhAtyy Uul
which had its origin In consent. Most
of our laws are Of this nature. When.
ever 3 free people consent and use a
certain rule or method ~ o law, such
rule, ETC., gives 1t the power of q law
and II II is universal, then 1t is the com.
mon law /; II particular to this or that
place, then 1t is the custom" 5 Salk.
l12.
As to the rise of customs when q
reasonable act once done was found to be
good and beneficial TO the people, then
they did use it often, and, by frequent
repetitions of the act, 1t became q Gus
tom, which being continued time ont
OF mind, 1t obtained the force of a law
to bind the particular places, persons
and things concerned therein. Thus
custom had beginning and grew to per-
fection." JAG. Law Die. Vol. 2, III. But
to make special or particular custom
good, 1t must have been used 80 long
that the memory Of man runneth not
to the contrary" Co. Lift. 113.
Thus, although 1t should be estab-
lished that q particular custom pre-.
vailed In any place, yet, II the origin OF
the custom could be shown to be within
the legal period of memory, (Which is
one Of several hundred years) 1t would
be no go:d custom. Id. But to estab.
lish in any case particular custom 1t
must appear in some way that 1t had
its origin in common consent. The
fact of its being disputed at law or
otherwi ise is proof that such a consent
was wanting. 1t must have been ae-
quiesced in and not subject to conten-
tion and dispute. Co. Lift. ia.
With this statement of what Is neces-
sary to establish particular custom, 1t
is quite plain, If the plaintiffs witnesses
are TO be credited, that no such custom
as that upon which the defense relies,
exists. The fact of conflict of testimony
by tho witnesses, inhabitants of the
city, repels the idea Of custom, which
IL law by consent. There can be ro
consent such as the maintenance of a
custom requires, where some of the al.
legged consenting parties deny or dispute
the custom. The defense thereforefaiis,
and the sole question for you is, what
amount Of damages ought to be given to
the plaintiff.
You have heard great deal of testi-
mony upon this point. Looking
at the matter from a general point OF
view we say that the measure of dam
ages Ia what 1t would have cost
thO 4hdys lCoog tut
time when the suit was brought, to re-
store her property to as good a condi.
ton and as good state of protection
by lateral support AZ it had before the
excavation WAS made. If you think,
with many of the witnesses, that a
stone wall was necessary to make such
support, you may allow for such wall.
You have been told what the expense
of such restoration, stone wall and a
fence upon it, would be. Tue estimates dc
not vary much.
You may also allow the plaintiff, If
you think proper TO do 30, for any
other damage abe has shown to have
been a necessary consequence of the
defendants act, provided the value or
amount of such damage has been
proved by the testimony. But you are
not to consider any claim of damage
unless proof, not only of it, has been
satisfactorily made, but also of the
value of 1t in dollars and cents. In
no case of claim for damages in an &C.
ton like this, are any, beyond the
nominal verdict of six cents, to be al
lowed, unless proof be made of wha
they consisted, and their value or
amopnt