Chapman v. Morris Building & Loan Improvement Ass'n ( 1902 )

Provosty, J.

The plaintiff, alleging herself to be the owner in her separate and paraphernal right of the building on Camp street in this city adjoining the Morris ¡building at the corner of Camp and Canal streets, and to have said paraphernal property under her exclusive separate administration, brings this suit to recover damages from defendant, the owner of the said Morris building, for injury caused to her said building by the'said Morris building. The wall between the two buildings is a party wall constructed as part of rthe Morris building, and the contention is that this party wall in settling has dragged down plaintiff’s building, causing walls to crack, plaster to crack and fall, floors to dip, and other injuries.

TEe answer is a general denial and a plea of prescription.

Defendant contends that the damages in question, if they ever occurred, fell into the community of acquets and gains presumed to exist between plaintiff and her husband, and that as no separation of property is shown, and as rthe allegation of the property being under the separate administration of the wife is disproved by the evidence, the husband alone was qualified to bring suit.

This defense cannot avail defendant, it being a special defense and not Having been specially pleaded. Hennen Dig., p. 1152. Had it been pleaded, non constat, that plaintiff would not have shown that her husband was acting merely as her agent. 33 Ann. 160. The plaintiff was not challenged to the proof of her separate administration; what evidence there is in the record going to show acts of administration by the husband went in only incidentally.

The defense of prescription is much more serious.

The Morris building was completed in September, 1889, and this suit was filed in May, 1898, and the prescription applicable to the action is one year. Conceding for the purposes of the case ¡that the time when the building ceased sinking must be taken as the initial point of the prescriptive period, and that the burden to establish that time was on defendant, we think it has discharged the burden, and that the plea must be maintained. The proof is that, as a rule, heavy buildings like this Morris building, do not continue to sink longer than two years; and the proof is, further, that the Morris building was constructed according to the methods most approved at the time of its construction, with less regard to expense than to the excellence, and that it is more likely, therefore, to have conformed to the rule than to have made an exception to it. Moreover, the testimony of the two architects who constructed the building goes far towards establishing affirmatively that it did in point of fact cease sinking within the two years. After this rule had been established the burden shifted to the plaintiff to show that the Morris building had proved an exception to the rule. Powers vs. Foucher, 12 M. 70; Knox vs. Haslett, 12 M. 255; Hubnall vs. Watt, 11 Ann. 57; Bailey, Onus Probandi, 1 and 5; Stephen’s Dig. of Law of Evidence, Arts. 95 and 96; Black’s Law Dict., Burden of Proof.

It is therefore ordered, adjudged and decreed that the judgment appealed from be set aside and that the plaintiff’s suit be dismissed at her cost in both courts.