Brandywine Hundred Realty Co. v. Cotillo, 4582.
| Decision Date | 25 January 1932 |
| Docket Number | No. 4582.,4582. |
| Citation | 55 F.2d 231 |
| Parties | BRANDYWINE HUNDRED REALTY CO. v. COTILLO. |
| Court | U.S. Court of Appeals — Third Circuit |
Charles F. Curley, of Wilmington, Del., for appellant.
P. Warren Green, of Wilmington, Del., for appellee.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
The facts in this case are few and undisputed; the question involved narrow. Shortly before midnight on January 19, 1929, the plaintiff was driving his automobile on one of the principal through roads of Delaware, on which a tract of suburban forest abutted, about two miles north of Wilmington, Del. This land had been owned by the defendant company, and on defendant's said land, located about ten feet from the road, stood a chestnut tree. The tree had been dead for four years, but, beyond its deadness, bore no exterior evidence of decay. As the plaintiff passed, a wind of no unusual violence blew the tree down. It struck the automobile, damaged it, injured the plaintiff, and killed his companion. Thereafter the plaintiff brought this suit, and on the trial the court refused defendant's prayer to give binding instructions in its favor, and submitted the case to the jury in a charge to which no objection was made or exception taken. The jury having found for plaintiff and judgment being entered thereon, defendant took this appeal, and the question involved is whether the trial judge should have given binding instructions for the defendant.
We gain little, if any, help from the many cases where the liability of abutting property owners to those using a street or highway are considered, for each case depends on its own particular facts, which are not the facts in the present case. After all is said and done, this case turns on the application of the time honored principle of law, "sic utere tuo ut alienum non laedas" — so use your own as not to injure another. Of the right of the plaintiff to drive along the public road there can be no question. And of the duty of an abutting landowner to so use his property on his own land that it shall not cumber the highway and endanger the safety of those using it there would seem to be no doubt. Responsibility for the control of one's property is one of the burdens of ownership, and, as a landowner has the right to enjoy his property unhampered by the actions of his abutting neighbor, so his abutter, whether the abutter be a neighbor or the traveler using a...
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