Year: 1876

ion ia the case of Stevenson vs.sWallace,
| which involves law points OF interest to
builders and the public generally, and Is the
first Of the kind that eyer reached that
court: The case is stated as follows By the
learned Judge:


This is an action by the owner OF 4 tene-
ment In the city of Richmond against the
owner of the adjoining tenement to recover
damages of the defendant for digging in bis
lot so near the foundation of the plaintiffs
house, and to such depth, as to cause 1t to
fall. The defendants lot, together with the
brick dweliDg-house thereon, was conveyed
to him by Joseph Marx and wife by deed
bearing date on the 1st day Of May, 1917,
the grantor reserving therein the right to
join the two end walls Of said tenement:
and the plaintiffs lot was conveyed to
Mary Stevenson, from whom the plaintiff
derives title, by the same grantor, by deed
bearing date the 9Th of July irsfhe same
year-described as adjoining the said tene-
ment previously conveyed to defendant, be-
ginning at the northeast corner thereof, and
thence running along the wall of said tene.
ment north fifty-four degrees. west sixty
eight feet eight inches, TO Edward Hal.
lam's line, &c.; also the privilege Of
joining the end walls of the brick
tenement conveyed to Thomas Richardson,
as aforesaid, free of any cost, together with
all and singular the buildings, ways, ease.
ments, hereditaments, appurtehances, &c.
There seems to have been no building on the
parcel of land reserved by the grantor, and
which he soon after conveyed to Mary Ste.
venson. But the language of his deed to the
defendant clearly implies the reservation of
right to build on it, aud to join the end
walls of the building which he conveyed
to the defendant. And the right so
by him reserved be conveyed by his
deed to Mary Stevenson and it is
implied that the land was sold and
conveyed to her for the purpose Of building
thereon. A building was erected thereon,
when or by whom it does not appear from
the evidence certified, which, together with
| the defendants building, was destroyed by
| the memorable fire which occurred on the
| Sd of April, 1865. The plaintiff afterwards.


in 1866, caused another building to be erect
ed upon the the site of her building which


had been destroyed, as aforesaid, laying
the foundation of the wall of her main


building jam against the old founda.
ton wall of the defendants build
ing, and building one of the walls
of her kitchen, in the rear Of her main build
/ u.
fendants building. In the latter part of the
| wear 1871 the defendant, intending to re.
build. caused soil contiguous to the old


foundation wall of his building, against


which the foundation Of the plaintiffs main


building was laid, to be removed, and the
excavation of his cellar to a depth of three


feet below his old foundation, which was


lower than the foundation of the plaintiffs


building, which the plaintiff alleges caused


her main building to fall, and for which she
seeks to recover damages of him.


| THE COURT HELD


that the defendants grantor, Joseph Marx,
when he conveyed part and parcel of his
land to the defendant. with the brick build
Ii ing thereon, reserved the right to build on
the part which he retained, and the reserva.
ton of his right to support to such building,


when erected, by the land and building
which he conveyed to the defendant, must


be implied as an easement: and that said
right of support or easement passed from
him by his deed of conveyance to Mary Ste.
venson, and from her with the title to the
tenement to its present owner in fee.


The Court also held that the original
grantor, by his reservation in the deed to the
defendant of the right to join the end walls
of the building be conveyed to him, retained
the right, which passed with the land to
those who derived title from him, to join
bis building to the defendants by an inde'


pendent wall alohgside the defendants build
ling, or to make it part of his building by
Joining only his end walls, and that the privi


lege of Joining his building in the mode in
dicated by the reservation did not extinguisf
or impair his implied reservation Of support
l The Court also held that If it was showr
that the plaintiff had a building on her 10


which had been supported by the land and
the building of the defendant for twenty
/ years or more, with the knowledge OF Int
defendant, prior to the fire of April 8. 1865
which destroyed both buildings, q gran


of the easement of support will be pre-
tsumed, and that said easement was no
| lost or extiDguished by the destruction o


her building, but adhered to the buildin!


which she caused to he erected on its ruins


and that any right Of support which sh


may have derived from the reservation of th
deed of conveyance OF her grantor to the dc
fendanr, express or implied, was not e1tin


guished by the destruction Of the old build


ing, but survived and adhered to the new.


The Court further held that if the plaintiff


was entitled to the support of her building


by the foundation wall and land Of the de


fendart, the defendant could not withdraw
1.-THE support without being liable in damages
for the injury that occurred thereby to tht
plaintiff.


With regard to the proposition that tn
defective construction Of the plaintiffs build
ing with defective material, or upon defec
tive foundation, which would increase it
liability to fall, should affect the plaintiff
right of recovery, or relieve the defendan
from liability in damages, the Judge said
1t is argued on the one hand. that th'
plaintiffs building, although defective Ii
its construction, would not baVe fallen o.
Ibeen impaired, and might have stood grea
While but for the act OF the defendant IN re


moving its supports. On the other hand, Il
is commended that it would be unreasonable
and unjust to allow tire dominant tenant t
deprive the serVient tenant OF the privilege
OF improving his own property and enjoy
ing the benefit OF it by erecting building or
her let so defective that the seryient tepan


cannot, with all due care and proper precau
ton. improve his own property without in
curing the liability of paying for bis neigh


bor's. Upon this question respectable courts
and able judges are divided in opinion


neither, perhaps, have placed it upon tht
true ground. The Court is OF opinion thai
| whilst tie facts supposed should not consll
tute bar to the plaintiff s right of recovery
so as to defeat her action, they would Dt


proper to be considered by the Jury upon the
ltsuestion Of damages.


The Court further held that if the plaintiff


was entitled to the easement of support tol


har building, the defendant could not q D.


soiae himself from liability ia damages fol
Il ExI-a - NJ hErsI in