Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1885-05-28

WHEN cOuFJ Opeueu lueSluy InOrnluB
Chief Justice Comegy Judges Woot-
ten and Houson ON the beneh-Mr. Nields
resumed his closing argument for the
plaintiff in the case of Stimmcll VS..
Brown. He spoke for 20 minutes, and
then the jury was charged by Chief JUS
tice Comegys.
IN opening the chief justice said this
was an entirely new case in the courts of
Delaware, and was important that it
would define whit are the rights, duties
and liabilities of owners of adjoining
real estate. After citing the material
facts of the case, the charge proceeded to
say that when two parties own ad-
joining lots, and one proceeds to erect
building. and in the course of
operations digs cellar or other exca-
Walton, by reason of which the soil of his
neighbOr falls by its own weight, the first
party shall be answenble for all damages.
But if the neighbor has building on his
line, which adds to the natural weight of
the soil and thus causes the fall, he can
recover nothing unless the building has
been erected for 20 years, which fact will
impart to it the right of protection
against damage from the excavation of
the adjoining lot.
By law the owner of piece of real
estate has right to all above and below
the surface of his land. but he must not
use this right TO the detriment or injury of
his neighbor. Hence, in digging cellar
he must take such precautions as will pre-
vent the soil of his neighbor from crumb-
ling of its own weight. One right in the
ownership of adjoining properties is to
have one parcel laterally supported by
the other.
In regard to the claim of the defendant
that it was the custom for owners of high
lots to protect their soil when the adioin-
ing lots were cut down to grade,th court
| said that i'll law there We're two kinds of
encouragement and special. General
custom is one that applies to the entire
community or state and becomes in reality
| the common law. Whenever II reasonable
net is once done, and is found to be
beneficial and is continued without inter
| ruptiOn, it becomes custom, and
| finally obtains the full force of
la law. To make il so effec-
| tive, however, it must extend back" to
| n time whereof the memory of man run
meth not to the contrary" 1t must have
| its origin in common consent, and the
fact of its being disputed proves the con
trary. If the plaintiffs witnesses in this
cnse are to be credited, no such custom
us is claimed by the defendant existed in
this community, MS custom is law only by
| common consent. The defense therefore
| fails and the sole question for the jury is
what amount of damages should be
assessed.
On this point the court said that if the
jury thought stone wall necessary 10
protect the plaintiffs property they could
allow the cost of such wall and for any
other damage shown to be result of the
defendants act, provided it was clearly
proved by the plaintiffs testimony.
At 10. 40 O'clock the Jury retired.
In the case heard and argued ON Satur-
pny for rule to set aside the sheriff.
sale of the property of William Garrison,
culored, on the ground of inndequacy OF
price, the opinion of the court was rend
by Judge Houston. II ordered the set
ting aside of the sale.
A Jury was next drawn in the case Of
Anthony Reybold vs.. the Delaware City
Salem and Philadelphia Steamboat Navi
cation Company. Hon. George Gray and
f. G. Bradford, Esq, for plaintiff and
Anthony Higgins and William o.
Spruance, Esqs., for defendants.
Mr. Gray opened with the PLAINTIFF
statement. He said that prior to 1877
Mr.. Reybold was director of the de
PENDANT corporation. III that year, Mt /
meeting of the directors, Mr.. Reybolt
made proposition that an attempt b'
made to collect from the government
money paid by the company us pilotng'
for the steamer Swan, while the latte
was in the employ of the government
and for the amount deducted by the gov
eminent from the contract pric,
agreed upon for the steamer
use. The directors declined oil
the ground that it would be throwing
good money after bad. Mr.. Reybold thel
made proposition that he be allowed Il
attempt to recover the money and keep /
if successful, to which the directors con
sented, and subsequently ratified thi
agreement as late as December, 1873, by
formal vote of authority. He went h
work, and after getting the claim il
good shape, the company suddenly too
[ the matter out of his hands AM
, received the amount allowed by the gov
: ernment, $2,S98.1S, allowing Mr.. Rey
bold nothing for his labor. He said Their
were two counts in the plaintiffs declara
, tion-one for the amounts recovered an
i received by the company, $2,s9s.1s, wit
9 interest from the date of its payment
e August goth, 1882, and another for So, 90
e for services rendered in collecting tn
Q claim.
Y Mr.. Reybold was called to the stan
& and detailed his side of the case, as II
5 lated by Mr.. Gray. The minutes of
directors meeting, held on December 5tf
]. 1878, affirming the previous agreement
e allow Mr.. Reybold all he could colleet
J. was read and offered in evidence. MI
J. Reybold said he considered his time an
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