Irwin v. Peterson ( 1873 )

Wyly, J.

The defendant appeals from the judgment condemning him to pay the plaintiff $591 77, the value of half of a wall, which the defendant made a wall in common by using it to support his buildings in 1868.

The plaintiff joins in the appeal, and prays that the judgment be increased to the amount claimed in his petition ($1001 97).

The plaintiff acquired the property from E. E. Norton, assignee of Jacob Barker, who erected the wall in 1852. When the defendant, in 1868, made it a wall in common, he incurred the obligation to pay half of what was laid out in its construction. Asserting the right conferred by article 676 Revised Code, the defendant must comply with the condition upon which that right is given, to wit: he must pay half the cost of constructing the wall. 20 An. 554; 22 An. 114; 23 An. 597.

He has no interest to question plaintiff’s title further than to ascertain whether the claim now demanded can safely be paid to him. We think whatever right Jacob Barker, the builder, had to demand remuneration for half the cost of the wall belongs to the plaintiff, and that. payment of this demand will protect the defendant from any further ■contribution that may be demanded for making the wall a wall in •common.

The bill of exceptions to the introduction of plaintiff’s title, resulting from the adjudication of twentieth June, 1868, and the confirmatory act of sixth July, 1868, was not well taken, for the reason given by the judge in refusing to reject this evidence.^*

The total number of bricks laid in the wall is 91,043, and the value per thousand in 1852, when the work was constructed, we fix from the ■evidence at $14. One-half the cost of the wall was, therefore, $637 30, for which plaintiff should have judgment.

It is therefore ordered that the judgment appealed from be amended, and that the amount thereof be increased to $637 30, and as thus amended that it be affirmed with costs of both courts.

Rehearing refused.

* The evidence was admitted hy the court a qua because it was confirmatory and explanatory of the title filed in answer to the prayer for oyer, not a new and independent title a8 argued by defendant. — Deporter.