Moore v. Rayner

• Decision Date: 11 July 1882
• Citation: 58 Md. 411
• Parties: ROBERT MOORE v. WILLIAM S. RAYNER.
• Court: Maryland Court of Appeals

58 Md. 411

ROBERT MOORE v. WILLIAM S. RAYNER.

Court of Appeals of Maryland

July 11, 1882

APPEAL from the Superior Court of Baltimore City.

The case is stated in the opinion of the Court.

Exception.--At the trial the plaintiff offered the six following prayers:

1. If the jury shall find from the evidence in this cause, that the wall between the houses of the plaintiff and the defendant was built, as to the northern portion thereof, upon eleven and a half inches of the plaintiff's ground, and as to the southern portion thereof upon fourteen inches of the plaintiff's land, and that the defendant removed any part of the said wall so built upon eleven inches and a half of the plaintiff's land, or any part of the said fourteen inch wall so built upon plaintiff's land, whereby injury was caused to the house of the plaintiff, then the plaintiff is entitled to recover such damages as the jury may find to have been occasioned by the said wrongful act of the defendant.

2. If the jury shall find, that the wall between the houses of the plaintiff and the defendant was used by both parties owning the land on either side, for more than twenty years, then said wall will be presumed to be a party wall in the absence of a mere permission to use the same, of which there is no evidence, and that the defendant employed one John S. Hogg to tear down the building on his lot and rebuild the same, and that without giving notice to the plaintiff of such intention, the cellar of the house of Moore was dug below the foundation and the party wall aforesaid underpinned by the defendant's employés, and that the party wall aforesaid was so removed and rebuilt, as to cause injury thereto, and the front wall of the plaintiff's house was so cut and separated from the party wall aforesaid, on the fourth and fifth stories thereof, as to loosen the front wall and cause it to topple towards the street so as to hazard the falling of the entire front wall, and make the occupation of the house dangerous, then the plaintiff is entitled to recover such damages as would enable him to reinstate the walls aforesaid in as good condition as they were before the injury aforesaid.

3. If the jury shall find, that the wall between the houses of the plaintiff and defendant was built upon eleven and a half inches of the plaintiff's ground, and that the defendant in erecting the store upon his lot adjacent to the plaintiff's lot, entered upon the land of the plaintiff and took possession of and used eleven and a half inches thereof, or part of the said wall between the two houses, and erected thereon and in front of said wall an iron pilaster and has continued since 1876 to keep the same so in use by him, then the plaintiff is entitled to recover such damages as he may have sustained by such use and occupation of his land.

4. If the jury find that the wall between the plaintiff's house and that of the defendant's, was a party wall, and that the defendant, while constructing a new warehouse adjoining the plaintiff's property, underpinned said wall and removed portions of the same, and that by reason of such underpinning and removals, the plaintiff's property was injured, then the plaintiff is entitled to recover.

5. If the jury find from the evidence, that eleven inches and one-half of the fourteen inch wall, between the warehouse of the plaintiff's and that of the defendant's, is included within the metes and bounds of the plaintiff's title, and that the title to said eleven inches and a half is in the plaintiff, and that those under whom he claims built a nine inch wall upon said eleven inches and a half of the wall aforesaid, and that the defendant tore down this nine inch wall, and thereby caused the plaintiff's front wall to crack and settle, then the plaintiff is entitled to recover.

6. That there is no evidence in this case, that the wall referred to in the deed from Nicholas Ruxton Moore to George Poe, and which deed has been offered in evidence, is the same wall which was standing between the warehouses of the plaintiff and the defendant at the time, it is alleged, the injury complained of occurred.

And the defendant offered the four prayers following:

1. If the jury find from the evidence, that measuring 19 feet 6 inches from the point A., shown on the plat of the premises offered in evidence by the plaintiff, would include the wall between the plaintiff's house and that of the defendant or any part of said wall; yet if they further find that said wall was the east wall of the house mentioned in the deed from Nicholas Ruxton Moore to George Poe, dated January 7th 1795, then the legal effect of the deed aforesaid from Moore to Poe, was to convey to Poe the title up to the east face of said wall, with the privilege of building against the same, but that said deed does not convey the title to any part of said east wall or any right therein, except to build against the same.

2. If the jury find that the wall between the plaintiff's and defendant's houses, was the east wall of the brickhouse mentioned in the deed from Nicholas R. Moore to George Poe, then by the terms of said deed, the said George Poe, and those claiming under him, only acquired the right to build against said wall, and acquired no right to build upon the same; and if the jury find that a wall nine inches thick, was built upon the top of said partition wall, and that the front wall of the plaintiff's house was extended nine inches across the top of said partition wall, the right to build said nine inch wall, and to extend the front of the plaintiff's wall nine inches across the said partition wall, was not acquired by said deed, and there is no evidence in this case to show any other legal right on the part of the plaintiff, or those under whom he claims, to make said erections upon the top of said partition wall, and so finding, the defendant was lawfully entitled to remove said erections in the manner shown in the evidence by the letters of defendant to plaintiff, dated August 11th and 14th, 1876, and his reply.

3. If the jury find that the wall between the plaintiff's and defendant's houses, was the east wall of the brickhouse mentioned in the deed from Nicholas R. Moore to George Poe, and that the plaintiff, or those under whom he claims, erected on the top of said wall a nine inch wall, and extended the front wall of plaintiff's house nine inches across the top of said partition wall, and that the alleged bulging of the plaintiff's front wall was caused by the removal by the defendant, in the manner shown in the evidence, of said projections of plaintiff's wall over the top of said partition wall, then the plaintiff is not entitled to recover any damage that he may have sustained, by reason of the removal of said projections in the manner shown by the evidence.

4. That the plaintiff is not entitled to recover any damage that the jury may find the plaintiff sustained, by the reason of the defective construction of his own premises, even though the jury may find that such injury proceeded from the repairing of the partition wall between plaintiff's and def...