Fidelity Insurance, Trust & Safe Deposit Co. v. Hafner

Opinion by

Beaver, J.,

The judgment in this case was properly entered. The plaintiff’s statement was sufficient. It distinctly averred the ownership of the premises upon which the party wall was built; that the defendant was the owner or lessee of the adjoining premises, and that he was the next builder, having erected and built a messuage upon the adjoining premises and making use of the-plaintiff’s party wall therefor. It avers that the “ proper surveyor and regulator duly set the charge and value of the portion of the said party wall so used by the said defendant as-aforesaid, of which the defendant had notice,” and that defendant refused to pay.

Under the provisions of the Act of February 24, 1721, 1 Sm. L. 124, and of the Act of April 10, 1849, P. L. 600, the-defendant was liable for the amount assessed by the surveyor- or regulator as compensation for the use of the wall made by him. See Voight v. Wallace, 179 Pa. 520.

The affidavit of defense is not sufficient. The. defendant, himself alleges that he used the party wall; that the roof erected by him “ is supported by light pieces of scantling, the-timbers or ends of which rest in small holes about two inches-in the said party wall, extending along the said party wall the-length thereof.” This is a clear admission of such a use- of the-wall as makes him liable. The act of 1721 provides that “-the first builder shall be reimbursed one moiety of the charge of such party wall or for so much thereof as the next builder shall have occasion to make use of before such next builder shall anyways use or break into the said wall.” The defendant’s entire structure at least upon the one side depended, upon his own admission, entirely upon the party wall. Having used it, he should pay the amount assessed by the officer duly constituted to assess the value of the use of said wall made by him.

The judgment is affirmed.