MOSCHZISKER, J. A proper consideration of the many important points involved 18. PARTY WALLS 8(5) — STATUTES-DAM- in the present case requires unusually lenghty

20. PARTY WALLS 8(5)-NEW PARTY WALL ages for alleged injuries to the Duquesne ACTION OF CONTRACTOR

The party wall proceedings were in accord with the provisions of the act of June 7, Appeal from Court of Common Pleas, 1895 (P. L. 135), and plaintiff neither alleged Allegheny County.

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

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

8, 11:

"The custom of party walls, developed by time and regulated by various statutes, was introduced into this country * by the first settlers in Philadelphia under William Penn; and in 1721 the Legislature of Pennsylvania passed an act ** regulating in detail the whole subject of party walls in the city of Philadelphia."

*

of obstructions standing in its way, yet in so | Pennsylvania. As stated in a note to Bloch doing it became liable as an insurer for all v. Isham, 7 American Law Register (N. S.) 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 all 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 result ing 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 oth

ers.

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 suggested by the contention just quoted, it is necessary briefly to review the foundations and development of the party wall system in

See, also, Hoffstot v. Voight, 146 Pa. 632, 636, 23 Atl. 351.

The act of February 24, 1721, will be found in 1 Dallas' Laws of Pennsylvania, 152, 3 Pa. St. at L. 244, also 1 Smith's Laws, p. 125; and it will be noted therefrom that the meaning of the term "party wall" is treated as then established; the statute merely undertaking to afford a remedy for the "diverse inconveniences, irregularities and controversies," which, as it states, "frequently happen in relation to party walls,"

[1] The origin of our present party wall regulations was the great London fire of 1666. They are primarily designed to guard life and property; and the theory which sustains these laws as police statutes seems to be that in thickly populated cities there is a constant menace from fire, against which they serve as a common protection. See Vollmer's Appeal, 61 Pa. 118, 125, et seq., where Mr. Justice Read narrates the historical development of this branch of the law. Also see Traute v. White, 46 N. J. Eq. 437, 441, 19 Atl. 196, and Gibbons on the Law of Dilapidations and Nuisances (1st Eng. Ed. 1838) 110. Another theory suggested by the United States Supreme Court as applicable to this class of cases (see Wurtz v. Hoagland, part V of this opinion, infra) is that in congested districts such regulations serve the public welfare by providing a common economical means of using adjoining properties.

So far as Pittsburgh is concerned, the necessity for party walls was recognized, and their regulation provided for, in the first act of incorporation, passed April 22, 1794 (see 3 Dallas' Laws, 588, 591; 4 Carey & Bioren's Laws, 421, 423; 15 St. at L. 161, 164), in connection with the act incorporating the borough of Reading, to which this Pittsburgh statute refers, the latter appearing in 11 St. at L. 124, 130, 2 Dallas' Laws, 129, and 2 Carey & Bioren's Laws, 418, 424. ond act of incorporation, passed March 5, 1804 (P. L. 199, 203 [17 St. at L. 648, 651]), also contains provisions as to party walls; as do the acts of March 18, 1816 (P. L. 160, 163), April 8, 1872 (P. L. 986), and June 7, 1895 (P. L. 135).

The sec

The act of June 7, 1895, supra, regulating party walls in cities of the second class, provides for the removal of an old party wall when "unfit or unsafe for the purpose of erecting a new building or buildings upon the

adjoining lot" (P. L. 140) and how the ex-[tution does not limit the police power of the penses shall be borne; but there is nothing in states. As said in 12 C. J. 1197: this statute, or in the others called to our attention, that makes any provision whatsoever for the contingency of an old wall which, while standing upon one side of the division line between two properties, yet, as in the case at bar, occupies space needed for party wall purposes. There being no statutory liability for the damages here alleged, the question of the validity of plaintiff's claim must be worked out on general principles and in the light of history; but, before further

consideration of the case from these aspects, we shall first dispose of the several objections to the judgment which appellant urges upon constitutional grounds.

[2] III. In taking up the points we are about to discuss, the following considerations must be kept in mind: Every act of sovereignty which, for the public welfare, adversely affects private property, whether under the right of eminent domain or otherwise, represents, in a broad sense, an exercise of police power; but in Pennsylvania, as well as in most other jurisdictions, whenever, in the making of public improvements, real estate or certain other kinds of private property connected therewith are either actually appropriated or so affected as permanently to impair the value thereof (Iron City Auto Co. v. Pittsburgh, 253 Pa. 478, 493, 98 Atl. 679, L. R. A. 1917C, 420), such instances are segregated, and, for all legal purposes, in effect, classified under the head of "Eminent Domain," as to which there are many principles, restrictions, and special constitutional rules inapplicable to police power cases in general, not the least significant of these being the right to damages for property thus taken, injured, or destroyed.

"The constitutional guaranties that no person shall be deprived of life, liberty, or property without due process of law do not limit, and were not intended to limit, the subjects on which the police power of the state may lawfully be exerted. These guaranties have never been construed as being incompatible with the principle, equally vital, because essential to peace and safety, that all property is held under the implied obligation that the owner's use of it shall not be injurious to the community."

See cases there cited and Chicago & Alton R. R. Co. v. Tranbarger, 238 U. S. 67, 76, 35 Sup. Ct. 678, 59 L. Ed. 1204; New Orleans Gaslight Co. v. Drainage Commission, 197 U. S. 453, 462, 25 Sup. Ct. 471, 49 L. Ed. 831; also Nolan v. Union Storage Co., 106 Atl. 235, recently decided by us, but not yet officially reported.

[6, 7] Article 1, § 11, of our present state Constitution provides that:

"All courts shall be open, and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law."

The same provision is found in Article 9, § 11, of the Constitution of 1790 and 1838; but our decisions show that this has never been construed as conferring the right to recover consequential damages to property due to the operation of the exercise of an act of sovereignty, police power, or otherwise; that is to say, the word "injury" in this section of the Constitution has been construed uniform. ly in the strict sense of "legal injury"; and prior to 1874 only when land was actually appropriated for public purposes were damages recoverable, consequential losses, even in

[3] IV. As to party wall acts in general, it eminent domain cases, being accounted is stated in 20 R. C. L. 1087:

"The constitutionality of these statutes has been assailed on the ground that they authorize the taking of private property of another for private use, but they are generally upheld on the ground [of being] a valid exercise of the police power."

And this is the broad reason given in our cases for sustaining such legislation. Hoffstot v. Voight, 146 Pa. 632, 636, 23 Atl. 351; Heron v. Houston (No. 1) 217 Pa. 1, 3, 66 Atl. 108, 118 Am. St. Rep. 898.

"damnum absque injuria." Case of P. & T. R. R. Co., 6 Whart. 25, 46, 36 Am. Dec. 202; Monongahela Navigation Co. v. Coons, 6 Watts & S. 101, 114, 115; O'Connor v. Pittsburgh, 18 Pa. 187, 190; Freeland v. Pa. R. R. Co., 66 Pa. 91, 98; Fyfe v. Turtle Creek Borough, 22 Pa. Super. Ct. 292, 297; and other authorities mentioned in the note on page 210, 2d col., vol. 1, Stewart's Purdon's Digest. The present Constitution (article 16, § 8) first gave a universal right to recover damages for property injured or destroyed, not actually appropriated; but the operation of this provision is confined to that variety of zases involving the exercise of an act of sovereignty affecting property which is classified under the head of "Eminent Domain" (Chester County v. Brower, 117 Pa. 647, 656, 12 Atl. 577, 2 Am. St. Rep. 713), and it in no manner refers to or affects cases (such as the one at bar) where incidental losses have been occasioned through an exercise of power conferred in a police statute not of the eminent [5] It has been decided repeatedly that the domain class (Betham v. Philadelphia, 196 Fourteenth Amendment to the federal Consti- | Pa. 302, 312, 46 Atl. 448).

[4] The following perhaps rather broadly put statement of general principle from New Orleans Gaslight Co. v. Drainage Commission, 197 U. S. 453, 462, 25 Sup. Ct. 471, 474 (49 L. Ed. 831), citing Chicago, etc., R. R. Co. v. Chicago, 166 U. S. 226, 255, 17 Sup. Ct. 581, 41 L. Ed. 979, that "uncompensated obedience to a regulation enacted for the public safety under the police power of the state was not taking property without due compensation," has relevancy here.

106 A.-16

548.

While there is an ancient maxim

[8] Article 3, § 21, of the Pennsylvania injuries resulting from the exercise of public Constitution, providing that "no act of the powers. Under the police power the state someGeneral Assembly shall limit the amount times destroys, for the time being, and perhaps to be recovered * for injuries to permanently, the value to the owner of his property," is called to our attention property, without affording him any redress." by plaintiff, who contends that "not only does Cooley's Constitutional Limitations (7th Ed.) this constitutional provision declare every "No cause of action arises from the doing of man shall have a remedy for injuries to his a lawful act or the exercise of a legal right, if property, but also that such remedy shall done or exercised in a lawful and proper mannot be tampered with, limited or restricted"; ner; the resulting damage, if any, being damnum and plaintiff argues that, if a construction is absque injuria. A liability may, however, arise placed upon party wall legislation which from the doing of a lawful act, or the exercise denies the right to consequential damages, of a legal right in a negligent or improper it in effect so limits "the amount to be re- manner; but in such cases the liability is bascovered" in such instances as to entirely de- ed, not upon the act done, but upon the manner prive one in his position of a legal remedy. to the effect that one must so use his own propof doing it. While, under this constitutional provision, no erty as not to injure another, the maxim, in its valid statutory limitations may be placed legal sense, has reference, not to the mere inupon claims for injuries recoverable at law, fliction of damage, but to the violation of a yet it does not have, and cannot properly be right, and means only that one must so use his given, the effect of conferring a right of re-own as not to violate a legal right of another. covery where none otherwise exists. Here Every one has a right to the natural use and (disregarding momentarily the element of enjoyment of his own property, and for lawful negligence) the real question is: Has plaintiff a right to recover against defendant consequential damages due to the mere building of the party wall? If not, the provision under immediate consideration has no relevancy, which is all that needs now be said in reference thereto.

[9] Although the police power is an essential attribute of government, which the Constitution of Pennsylvania protects from abridgment (article 16, § 3), yet attempts to produce, through its exercise, wrongful re sults, may of course be frustrated, especially when they run counter to adverse constitutional limitations (Leisy v. Hardin, 135 U. S. 100, 108, 10 Sup. Ct. 681, 34 L. Ed. 128; Lake Shore, etc., Co. v. Smith, 173 U. S. 684, 689, 19 Sup. Ct. 565, 43 L. Ed. 858; Eubank v. City of Richmond, 226 U. S. 137, 143, 33 Sup. Ct. 76, 57 L. Ed. 156, 42 L. R. A. [N. S.] 1123, Ann. Cas. 1914A, 192); but, as we have shown in the preceding paragraphs, there is nothing in the constitutional provisions depended upon by plaintiff which in themselves, when applied to the legislation here in question, subject defendant to a liability for damages on the facts in this case. Therefore, since the statutes involved do not in terms place such obligation upon defendant, if the liability exists, it must be because of relevant general principles of law, which we shall next examine.

[10, 11] V. Defendant's entry upon the land of plaintiff for the purpose of building a party wall, having been made under and by virtue of the police power of the state, was lawful. The original entry being lawful the following general principles govern, and, as we shall show, effectually defeat, plaintiff's claim for damages:

"It is a general rule that no one has a vested right to be protected against consequential injuries arising from a proper exercise of rights by others; this rule is peculiarly applicable to

acts done by one person upon his own property in a lawful and proper manner there is no cause of action, although damage to another may incidentally result therefrom." 1 Corpus Juris, 965 et seq.

[12] The building of party walls upon division lines between lots in certain of the cities of this state, while regulated by statute, has developed into the ordinary and natural way to use and enjoy real estate of that character, to such an extent as to "become a settled rule of property" (Heron v. Houston [No. 1] 217 Pa. 1, 3, 66 Atl. 108, 109 [118 Am. St. Rep. 898]), and, in effect, to make applicable the principle that every man is entitled to the ordinary and natural use and enjoyment of his property without being responsible to his neighbors for inconvenience or incidental losses which they may suffer through such enjoyment. See, on this general principle, Penna. Coal. Co. v. Sanderson, 113 Pa. 126, 145, 6 Atl. 453, 57 Am. Rep. 445; Penna. R. R. Co. v. Lippincott, 116 Pa. 472, 482, et seq., 9 Atl. 871, 2 Am. St. Rep. 618; and on its application to a party wall case, Negus v. Becker, 143 N. Y. 303, 308, et seq., 38 N. E. 290, 25 L. R. A. 667, 42 Am. St. Rep. 724.

[13] If it be said the building owner of a party wall (meaning the one at whose instance the wall is constructed) uses, not only his own property, but also that of his neighbor, the answer is: In communities where party walls have for generations been recognized and regulated by legislation, such as the cities of Philadelphia and Pittsburgh, each adjoining lot owner, for party wall purposes, has what is tantamount to an easement of support in the premises of his neighbor (see note to Bloch v. Isham, 92 Am. Dec. 287), to the full enjoyment of which he is entitled whenever he erects a wall of that character; and, when either lot holder builds upon his own property up to the division line, he does so with the knowledge that, in case