Hennessy v. Anstock

Opinion by Smith, J., The assignment of error, consisting of extracts from the charge, trenches closely on the rule that only one distinct question shall be raised in any assignment, since it lumps together the views of the trial judge respecting the submission of the case to the jury, the measure of damages, and a discussion of the rights of landowners to the use of the highway in front of their premises. It cannot be contended that all of this is erroneous ; and if there is error in any portion, our rules require the party complaining of this to point it out specifically and by' itself. An assignment cannot be divided, and treated as good in part and bad in part; if it cannot be sustained as a whole it must be overruled. For this reason, if for no other, it should present but one distinct question. As we construe the assignment, it complains merely of the submission of the case to the jury, upon the pleading and evidence. There was no request by the defendant for a verdict by direction of the court. Still, if there was no evidence to justify the verdict, this affords ground for the assignment. As we have before said on the subject of the pleading and the evidence (Clark v. Lindsay, 7 Pa. Superior Ct. 43), the plaintiff can recover only secundum allegata et probata; not only must the declaration set forth a wrong, and the evidence show a wrong, but the wrong shown must be the wrong alleged. In the present case, the declaration alleges the unlawful erection, by the defendant, of “ a certain obstruction, partition or barrier upon and over ” the plaintiff’s land. The evidence for the plaintiff showed the erection of a partition-like structure, an inch or more in thickness, about eight feet high and three feet wide, extending partly across the sidewalk that fronted the [648] adjoining buildings of the parties, and near the division line between them; fastened to the defendant’s building, but standing from one to two inches on the plaintiff’s side of the line, with its inner edge close against the plaintiff’s building. The erection of this was admitted, and its purpose explained, by the defendant. The only question is whether the averment in the declaration as to its character, and its relation to the plaintiff’s land, is so far sustained by the evidence as to warrant the submission of the case to the jury. The structure complained of was not placed either upon or over the surface of the plaintiff’s land. The rights of an owner, however, extend upward without limit. Every structure annexed to the land partakes of its nature as realty, and is, to all intents and purposes, land. Hence an obstruction placed against the side of a structure forming part of the realty is, in contemplation of law, upon the land, as fully as if placed on its surface. The portion which it covers is not material; if it may be placed against any part, it may be made to cover the entire side, obstructing light, air and access. To place it against any portion is a disturbance of the enjoyment of the land, if not of its possession, and, if wrongful, is a trespass. In Devlin v. Snellenburg, 1B2 Pa. 186, the painting of an advertising sign on the side of a building, by permission of the lessee, was held actionable in trespass at the suit of the owner; though, as an injury to the reversion, the form of action, prior to the procedure act of 1887, would have been ease. It is immaterial that the plaintiff’s building may extend over the street line. As against the defendant, the plaintiff’s possession was lawful. No question as to the rights of adjoining owners, with respect to structures erected on the division line, is here involved. The ownership of the land on which the obstruction stood was not in dispute. That land was a public highway; and whatever private uses might lawfully have been made of it under local ordinances, the maintenance of the structure complained of, even if it did not touch the plaintiff’s building, was certainly not among them. Standing on the sidewalk, such a structure was, in strictness, an obstruction of the highway, and, as such, a public nuisance. Whether its maintenance might not be actionable in trespass, under the procedure act of 1887, at the suit of the plaintiff, on the score of private [649] damage, it is unnecessary here to consider. It is sufficient that, placed directly against the building, its erection was in law a trespass. The probata corresponds, substantially, with the allegata, and the case was properly submitted to the jury. The assignment of error is overruled, and the judgment is affirmed.