1827. v. SIDEORD. situate, &c., at Wilton, in the county of Wilts, and then and there erected and built, put and placed, and caused WILTSHIRE and procured to be erected, &c., divers, to wit, five walls, five cart loads of bricks, five cart loads of stone, five cart loads of timber, and five cart loads of materials, in, upon, and over the said close, and in, upon, against, and over divers, to wit, two walls of the plaintiff, then standing and being, in and upon the said close, and kept and continued, &c. the said walls, so there put, placed and erected, without the leave or licence, and against the will of the plaintiff, for a long space of time, to wit, from thence hitherto, and thereby, &c. Second count charged that defendant, on, &c., at, &c., put, placed, &c., divers, to wit, five cart loads of bricks, &c., in, upon, and against divers, to wit, two walls, two dwelling houses, two erections, and two buildings of the plaintiff, there then standing and being, and kept and continued the said bricks, &c. ; and thereby, &c. Plea-not guilty. At the trial at the last Salisbury assizes(a), before Burrough, J., it appeared that the plaintiff was the owner of a house at Wilton; and that the defendant having purchased an adjoining house, in 1826, pulled it down and rebuilt it; and in so doing, built upon and against a wall which the plaintiff claimed as being exclusively his. Contradictory evidence was given as to the former enjoyment of the wall; but the plaintiff's house projected into the street, and being thereby deeper than that of the defendant before the rebuilding of the latter, no evidence could be produced by the defendant of any former use of the quoins. These quoins, which appeared to be upwards of 100 years old, projected before and behind the plaintiff's house, and had been repaired by him exclusively; a part of the defendant's new house was placed upon four inches of the quoins. The learned Judge reported, that he had told the jury, that if they were satisfied that there was but one (a) Counsel for the plaintiff, Erskine, Bayly, and Carter; for the defendant, Wilde and Mere- 1827. v. SIDFORD. wall, and that a party wall, both parties were so interWILTSHIRE ested, that neither could maintain trespass against the other. The jury, some of whom the learned Judge understood had had a view (a), said, that they considered it a party wall; and a verdict was entered for the defendant (b). Erskine, in last term, obtained a rule for a new trial upon the grounds of misdirection, and upon affidavits which being afterwards found to be insufficient to support the application, were abandoned. Merewether, Serjt., and Jeremy, who were to have shewn cause, were stopped by the Court. Erskine, Bayly, and Carter, in support of the rule. The sole question was, whose property the land was on which the wall was built. [Holroyd, J. Before the Statute (c) of Frauds, the wall might have been made joint property by parol. Bayley, J. You were bound to shew that the defendant had built on the plaintiff's land.] In Matty v. Hawkins (d), the court of Common Pleas held, that if two persons have a party wall, one half of which stands on the land of each, they are not tenants in common of the wall, or of the land on which it stands. The learned judge did not leave it to the Jury to consider whose land the wall was built on. [Bayley, J. He told them he could not distinguish between the propertyof the wall and the soil. Holroyd, J. If a row of houses is built, and the owner of the whole conveys separate houses to different persons, does not an undivided interest in the whole party-wall pass? Suppose the wall to have been built at first by the owner of one of these houses, the owner of the adjoining house could not use the wall, as in this case it (a) There had been a view by seven, but none of these were sworn on the jury, the first viewer happening to be the thirteenth person whose name was called. (b) It afterwards appeared, that there being considerable difference of opinion among the jury, they has been used. Therefore, there may have been an agree- case. BAYLEY J.-I am of opinion that there ought not to be a new trial. The plaintiff was bound to make out his I agree with what was decided in Matty v. Hawkins. There the quantity of land which each party contributed was known; but where it is not known under what circumstances the wall was built, we are not bound to draw the same conclusion as was drawn in Matty v. Hawkins, but may come to a more reasonable conclusion. When the builder of two houses grants off one, it is more reasonable to presume he grants the whole wall in undivided moieties, than that he should leave to either party the power of cutting the wall in half (b). That would be the case if the houses were built by one and the same person. If two persons built at the same time, the probability is, that they would take a conveyance of an undivided moiety of the ground on which the wall was (a) 5 Taunt. 29. (b) As was done in Wigford v. Gill, Cro. El. 269. 1827. WILTSHIRE v. SIDFORD. 1827. WILTSHIRE. บ. SIDFORD. to be erected, in order that the property might afterwards be kept in the same state. The quoin was a continuation of the wall, and it would have been an outrageous act on the part of the jury, to make a distinction between the quoin and the wall. I cannot in substance see any distinction. HOLROYD, J.-If the jury had sufficient evidence to lead to the conclusion at which they have arrived, we ought not to disturb the verdict. There was evidence of this being a party wall; the occupation of the wall was for the benefit of both houses. The presumption is, that the wall of both houses was the undivided property of both. If not, the plaintiff might have cut down half the wall, without being a trespasser; and a wall of half the thickness might not stand (a). It must be taken primâ facie, to be the undivided property of both. LITTLEDALE, J.-It was necessary for the plaintiff, to shew an exclusive right of possession (b). Two things were left for the jury, namely, whether there was more than one wall, and if not, whether that was not a partywall. The plaintiff says, the Judge has misdirected the jury, in not drawing their attention to the property in the soil, and Matty v. Hawkins has been referred to. To that case, I certainly subscribe; the property in the wall follows the property in the land. It does not follow that either party might pull the wall down, for each has a right to use the property of the other (c). It would have (a) Wigford v.Gill, Cro.El.269. (b) Butcher v. Butcher, ante, 220. (c) Supposing the respective proprietors of adjoining houses, to be each tenant in severalty of his own moiety, with cross easements in the moiety of the other, if either party took down his own moiety, he would be liable to an action on the case for any injury which might thereby result to his neighbour; and this in some cases might be more beneficial than a tenancy in common; such for upon tenancy in common being destroyed upon a writ of partition (which, being a writ of right, and not of grace,either party, it is conceived might prosecute), it would seem that the other would have no protection against the injury which was in flicted in Wigford v. Gill. have 1827. . SIDFORD. perplexed the jury, to have left the question as to the right of soil to them. In this case the plaintiff may WILTSHIRE. have been the owner of the whole soil, or each may been owners of a moiety of the soil (a), or they may have been tenants in common. The jury, by finding that it was a party-wall, have negatived an entire property in the plaintiff. If they were tenants in common of the soil, the conclusion is right. But it is suggested on the part of the plaintiff, that it ought to have been left to the jury to say, whether each party was not the owner usque ad medium filum. It lay upon the plaintiff to show that he had such an interest. It is said that the quoin shews this; but the defendant cannot claim a zig-zag line. The houses may have been originally built before the Statute of Frauds (b), in which case, no conveyance - in writing would have been necessary to the passing of an interest in the wall. Rule discharged. (a) Butcher v. Butcher, ante, 220. (b) 29 Car. 2, cap. 3. (1676). BRAMWELL, gent., one, &c. v. PENNECK. l. 7 By 537. TRESPASS for entering plaintiff's house, and taking in his goods. Plea, not guilty. At the trial before Burrough, J., at the last Bodmin Assizes (a), it appeared, that Bramwell, the plaintiff, an attorney, practising at Penzance, had been employed by a client, named Molyneur, to prosecute an action in the Town Court, which judgment had been obtained for 301. Upon this judgment, Bramwell obtained a warrant, in the nature of a fieri facias, directed to the serjeants at mace, and also, by Bramwell's express desire, to one Nicholas Richards, a person whom Bramwell was in the habit of employing occasionally to clean shoes. A seizure being made under (a) Counsel for the plaintiff, Wilde, Serjt., and Halcomb; for the defendant, C. F. Williams, and A person whose name is added to that of the regular officer in a warrant under a fi. fa., by the plaintiff's attorney, and who is employed to watch the goods after they have been taken by the officer, is not a labourer within the jurisdiction of justices of the peace under 20 Geo.2, c.16. |