Jackman v. Rosenbaum Co.

• Decision Date: 04 January 1919
• Docket Number: 33
• Citation: 263 Pa. 158,106 A. 238
• Parties: Jackman, Appellant, v. Rosenbaum Co
• Court: Pennsylvania Supreme Court

106 A. 238

263 Pa. 158

Jackman, Appellant, v. Rosenbaum Co

No. 33

Supreme Court of Pennsylvania

January 4, 1919

Argued October 15, 1918

Appeal, No. 33, Oct. T., 1918, by plaintiff, from order of C.P. Allegheny Co., April T., 1915, No. 1373, entering judgment for defendant n.o.v. in case of Edward F. Jackman v The Rosenbaum Company. Affirmed.

Trespass for injury to a building. Before COHEN, J.

From the record it appeared that the action was to recover damages for injuries to the Duquesne Theatre, owned by plaintiff, and situated on Penn avenue, Pittsburgh, caused by the removal of an old wall on plaintiff's property, which had been condemned by the city authorities and ordered removed. The defendant removed the wall so that a party-wall might be erected under the Act of June 7, 1895, P.L. 135. Other facts appear by the opinion of the Supreme Court.

Error assigned was in entering judgment for defendant n.o.v.

The assignments of error are overruled and the judgment is affirmed.

Ernest C. Irwin and John M. Freeman, of Watson & Freeman, for appellant. -- Where one owner erects a party-wall along the line of the adjoining property, and for the purposes of such erection tears out an existing wall of the other property owner, he is liable for all damages accruing to the other property owner, whether caused by negligent acts or not.

The statutory right to build a party-wall partly upon another man's land, is in derogation of common-law rights and is to be strictly construed: Hoffstot v. Voight, 146 Pa. 632, 636; Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426; Keim v. City of Reading, 32 Pa.Super. 613; Felt v. Cook, 95 Pa. 247; Melan v. Smith, 134 Pa. 649; Borland v Nichols, 12 Pa. 38; Heron v. Houston, 217 Pa. 1.

A provision read into the act, forbidding our recovery of damages, would be violative of Section 21 of Article III of the Constitution of Pennsylvania: Erdman v. Mitchell, 207 Pa. 79.

A provision read into the act forbidding our recovery of damages would be violative to the Fourteenth Amendment to the Constitution of the United States: Chicago, Etc., R.R. Co. v. Chicago, 166 U.S. 226; Sweet v. Rechel, 159 U.S. 380; Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112; Holden v. Hardy, 169 U.S. 366; Missouri Pacific Ry. v. Nebraska, 164 U.S. 403; Philadelphia Clay Co. v. York Clay Co., 241 Pa. 305.

The authorities which have passed on the question hold that damages should be allowed without proof of negligence: Brooks v. Curtis, 50 N.Y. 639; Potter v. White, 6 Bos. (N.Y.) 644; Fisher Leaf Co. v. Caldwell, 15 Ky. Law Rep. 542.

A. Leo Weil, with him Charles M. Thorp and L. Pearson Scott, for appellee. -- Where private property is taken under the police power no compensation need be made: Com. v. Plymouth Coal Co., 232 Pa. 141.

The party-wall legislation of Pennsylvania was enacted by virtue of the police power of the Commonwealth: Hoffstot v. Voight, 146 Pa. 632; Heron v. Houston, 217 Pa. 1.

The party-wall legislation of this Commonwealth has been enforced without the allowance of compensation to the party whose property was taken in pursuance thereof: Heron v. Houston, 217 Pa. 1.

Consequential damages cannot be recovered even under the statutes providing compensation for the taking of property under the right of eminent domain, when such damages are not provided for by such statutes. A fortiori, consequential damages cannot be recovered under statutes providing for the taking of property under the right of the police power when no compensation whatever is provided for in such statutes: Monongahela Navigation Co. v. Coons, 6 W. & S. 101; O'Connor v. Pittsburgh, 18 Pa. 187; Freeland v. Penna. R.R. Co., 66 Pa. 91; Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67; New Orleans Gas Light Co. v. Drainage Commission, 197 U.S. 453.

Ernest C. Irwin and Watson & Freeman, for appellant, in reply. -- The police power does not justify the destruction of property, as shown in this case, without compensation: Com. v. Plymouth Coal Co., 232 Pa. 141; Philadelphia v. Scott, 81 Pa. 80.

The police power is not superior to the constitutional limitations, but is entirely subservient thereto: Poland Coal Co.'s Case, 58 Pa.Super. 312; Lake Shore, Etc., Ry. v. Smith, 173 U.S. 685.

No common law right is recognized in this State or elsewhere for the erection of a party-wall partly upon another man's land, without his consent: Hoffstot v. Voight, 146 Pa. 632; Whiteman v. Shoemaker, 2 Pears. 320.

Before BROWN, C.J., MOSCHZISKER, FRAZER, WALLING, SIMPSON and FOX, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

A proper consideration of the many important points involved in the present case requires unusually lengthy treatment; therefore, to facilitate a ready understanding of, and future reference to, this opinion, we have divided it into appropriate heads, as follows: (I) Statement of case, including contentions of parties, with positions of the court below in reference thereto and its final judgment. (II) History of party-wall system, and legislation. (III) Police power and eminent domain. (IV) Constitutional points. (V) Applicable general principles and authorities, with comments on merits of case and relevant legislation. (VI) Cited cases discussed and distinguished. (VII) Charges of negligence and defenses thereto, particularly that of independent contractor. (VIII) Judgment.

I.

Plaintiff sued in trespass to recover damages for alleged injuries to the Duquesne Theatre, in the City of Pittsburgh, and other losses claimed to have ensued to him as a consequence of the removal, by defendant, of an old wall, belonging to that building, which ran along, but did not extend over, the division line between the properties of plaintiff and defendant, the latter requiring the space occupied by the old wall for the purpose of erecting a party-wall for a large department store in course of construction upon its lot. Defendant originally contemplated incorporating the old wall into the new one; but the city authorities decided that the former was not sufficiently substantial for that purpose, and ordered its removal, which was done by the contractor in charge of the erection of defendant's building. Plaintiff claimed consequential damages only; he did not ask payment for the wall that was taken down, nor for his ground occupied by the new wall, nor compensation for material taken and applied to the purposes of the latter, -- he sought to recover only for loss of rent and the cost of repairing and refitting the theatre. The verdict favored plaintiff; but defendant moved for judgment n.o.v., which was granted, and this appeal followed.

The party-wall proceedings were in accord with the provisions of the Act of June 7, 1895, P.L. 135, and plaintiff neither alleged nor endeavored to prove defendant had not strictly complied with the law; but claimed to recover upon the theory that, while defendant had the legal right to erect the new wall, and, if necessary, to cause the removal of obstructions standing in its way, yet in so doing it became liable as an insurer for all damages, direct or consequential, caused by the work in question, whether through negligence or otherwise. Plaintiff also claimed in the court below, and contends here, that, if necessary to prove negligence, the evidence is sufficient to that end; and, further, that the defense of independent contractor is not applicable to a case of this character.

On the other hand, defendant contends that, in the matters concerned, it acted strictly within its legal rights, without negligence, and, further, if any negligence existed, either in the doing of the work in question or through delay in its completion, this must be attributed to and charged against the contractor, who at all times proceeded without supervision or interference on part of defendant.

In entering judgment n.o.v., the court below determined that the party-wall system, as established in Pittsburgh, rested upon the police power of the State, and "injuries resulting from the mere exercise of the right to build a party-wall" were "damnum absque injuria"; at the same time, saying, as to the allegations of negligence, "We see no reason why one exercising party-wall privileges . . . should be held liable for any damage resulting from negligence or delay where the work agreed upon is done by an independent contractor and is legal"; and holding, "there was no evidence of negligence or delay [sufficient] to submit to the jury; [but] if there had been, it would have been the negligence of the independent contractor, for which defendant is not liable in any event." Additional grounds for entering the judgment are also given; but, since the two principal reasons just stated, if sound, are sufficient in themselves, we need not consider the others.

The first reason in support of the judgment, that this is a case of damnum absque injuria, is, in substance, the court's answer to appellant's principal contention, which, before considering, we shall restate in the words of plaintiff's counsel, as follows: "We contend that the right to erect a party-wall upon the adjoining owner's land, being wholly statutory, is derogatory to common law rights; that such right is, therefore, to be strictly construed; that the statute authorizing the construction of such walls does not relieve the party building the wall from common law liability for damages; that a provision read into the statute permitting one man to invade another's land without liability for damages would be unconstitutional, as depriving an owner of his property without compensation and without due process of law, violating both the Constitution of Pennsylvania and the Constitution of the United States."

II.

To pass properly on the several points...