Dannaker v. Riley

The opinion of the court was delivered by Burnside, J. — The act of 24th Feb. 1721, Dunlop, 2d edition, 72, provides that the foundation shall be laid equally upon the lands of the persons between whom a party wall is to be made, and directs, 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 any ways use or break into the said wall.” So the law stood until the passage of the act of 10th April, 1849, a period of more than three-quarters of a century. It is now for the first time discovered that the judges of Pennsylvania, as well before as after the Revolution, were in error, and that the rights of the first builder must be disregarded, although the act of 1721 expressly enacts that the first builder shall be reimbursed. That the act oft 1849 is declaratory of the law, although the whole course of decision was uniform and to the contrary; that William Patten, the owner of the house for the time being, is entitled to the compensation for the party wall, and that the act arrests all proceedings in favor of first builders, commenced by them for their alleged interests in party walls. That the legislature has changed the law on the subject of party walls, on the 10th April, 1849, I readily admit; and when a case arises on which that act will operate, it will receive the respect and attention of this court. There is nothing in that act retrospective, or operating on. deeds and buildings made or erected before the passage of the act. It simply provides, “ That in all conveyances of houses and buildings, the right to, and compensation for the party wall built therewith shall be taken to have passed to the purchaser, unless otherwise expressed; and the owner of the house for the time being shall have all the remedies in respect to such party wall, as he might [438] have in relation to the house to which this attached; and so much of any previous, law as is inconsistent with the provisions of this section is hereby repealed.” Pamphlet Laws of 1849, page 600. 'There is nothing retrospective in this section. It has no operation or effect on cases that existed previous to its passage. Our courts have ever held that the right to reimbursement is a chose in action, and that the vendee of the first builder has only an equitable right by the conveyance of the first builder, and should sue in the name of the vendor: 2 Miles 395. The charge for reimbursement is not a lien on the lot of the second builder, but a personal charge against him: 1 Dal. 341; 5 Ser. & R. 1, Hart v. Kucher. The right to reimbursement under the act of 1721, for the use of the party wall, is in the first builder, and does not pass by his conveyance of the house and lot: Todd v. Stokes, 10 Barr 155; id. 219. The act of 1849 was not passed when the judgment was entered; the judgment was right under the act of 1721. It is no ground to reverse because the legislature has chosen, as they had a right to do, to change the law on this subject. This court will not give a retrospective effect to statutes operating on a right, unless compelled to do so by direct and positive words, Lefever v. Witmer, 10 Barr 505, and then the constitutionality of the statute will be considered. The cases cited and relied on by the learned counsel of the plaintiff in error have no direct application to the case before us. The judgment is affirmed.