Daily Republican., 1885-05-27
The StimneI Case.
THE CHARGE OF THE CHIEF
JUSTICE RELATING TO THE
RIGATB OF BUILDER0.
AN IMPORTANT RULING,

vs. SAmuol DrOWD, winch occupied In,
attention of the Court for several day
last week, WAS finally given to the jur,
on Tuesday morning at 1875 O'Clock
| when they retired, and did not return
until 10 o'clock last night. During tn,
day they sent several notes 10 the Chic
Justice, the purport Of which could no,
! be ascertained. Shortly before II
O'Clock last night word was sent to tn,
Judges that they were ready to com,
|, in, and upon JudgeW ootten going to tn.
favor of the plaintiff for $500 and costs
The charge Of the Chief Justice lay
down the principles of law relating Il
such cases, and 10 of the greatest I'm
portance to builders and property
owners. 1t was as follows:
II would be reasonable to suppose
that the question raised in this case had
been before made in the courts of this
State, but there is no evidence to sup
port such suppositiop, and therefore /,
is TO be treated as o new one for deci
sion. What are the rights, duties and
liabilities of adjoining owners Of real
estate with respect to each other, In
matters concerning the use and enjoy
ment Of such estate: That is such
question. The plaintiff and defendant
are respectively owners of lots oI
ground in the city Of Wilmington, or
Jefferson street between Eighth and
Ninth streets, which adjoin each other
They are small lots, with frontag.
on Jefferson street, each twenty feet
Prior to the act of the defendant, the con
sequences of which are the cause of actor
in this case, the lot of the plaintiff
had been built upon the erection OF O
dwelling house with back building
and cellar, which constituted the resi-
dence of the plaintiff and her family
The grade Of Jefferson street was abou,
five fset below the level of the ground
on which this house WAS erected
which ground was not disturbed as tc
its grade.
In 1882, the defendant, desiring te
build on his ground, and intending tc
conform his lot t6 the level of the street
grade, proceeded to dig down his ground
up TO the dividing line between the two
lots, in consequence of which the fence
which the plaintiff had erected between
them fell down, and the earth crum.
bled also 30 much as to render her alley
between the dwelling and the line, prac
tically useless-the pavement upon i,
being displaced, and also waste pipe
or conduit for the discharge of surface
water and the house drainage.
To supply the service of the latter, IL
became necessary to make another
drain, and this time it had to pass
through the cellar. Access to the back
building, and from it to the street, was
made 30 difficult by the damage that the
main building had to be used for that
purpose. The dwelling house covered
the breadth of the lot, with the excep
tion of three feet and quarter OF an
inch, and this was the width OF the
alley.
While the excavation was going on
with the damage as IL progressed, the
plaintiff complained 10 the defendant ol
the consequenc ces of his act, and denied
his right to dig away his soil up to the
line without building wall of stone tc
prevent the crumbling. The defendant
on the other hand, insisted upon his
right, and contended that II the plaintiff
, wished to protect her property she mus'
do 1t at her own expense, as he was moi
1 bound to do 1t for her. Thus the partiei
raised themselves, out of Court, an ISSUE
! in law, and that issue has been trans
ferred by them by appropriate proceed
| ing, to be tried and settled before and
by us and you, in the tribunal of the
Superior Court.
The case is one of unusual import
| ance, as it presents, as has been befor,
said for the first time, the subject O
the respective rights of owners of ad
jacent lots of land, to the support eacl
parcel Is entitled to have from the other
Perhaps the best mode OF instructinj
/ you about the law is to give yoi
examples where 1t applies. Two me,
are owners, respectively, of adjoining
lots in city or town, which are botl
in their original state-that Is, no
built upon. One wishes to build, an(
chooses to do 30 along the divid
| ing line between himself and his neigh
Dor.
In the prosecution Of his purpose, l
he dig cellar or make other excava
tion on the line, or near 1t, so that tn,
soil of his neighbor, by its own weight
falls into it he will be answerable TO
the damages resulting therefrom to hi
neighbor. But If his neighbor hal
placed some structure or erected som,
building on his land which falls or be
comes injured by reason of its beinj
erected 30 near the line as to contribut,
by Its weight to the crumbling of tn,
soil. he can recover nothing for sucl
ipJury IN the absence OF PROOF OF care
iessness, neghgence or unskiliulness II
'nS execution OF the work.
thls, however, does not apply In Tn
Ease OF ouiiuing or structure whicl
mas oeen erected Tor more than twent.
years, IN winch case the owner has, II
oou.em platlon OF law the rights
secuilty against excavation upon IN
auJoinlng 'and after that period, In
saine as II one person had been orlgl
nai!y the owner OF both parcels, ant