Hammond v. Schiff

SMITH, C. J., (after stating the facts). With, this long and detailed recital of what occurred at the trial, we enter upon a consideration of the exceptions taken by the defendants. The exceptions numbered 1, 2, and 3, rest upon the same proposition, the insufficiency of the acts proved to raise an estoppel, or confer any right upon McAden or his lessees to the use of the wall built upon the Fries lot, and at its boun•dary. The objection is not so much, as we have repeatedly had occasion heretofore to remark, to the admissibility of the evi- • dence, as to its sufficiency to prove an estoppel, legal or equitable, against the defendants; in other words, to its effect. ' In our opinion, it was competent to show a common interest created under the contract, and recognized and acted on afterwards in the joint contributions for the maintenance and repair of the wall made by both parties. It contains an express agreement on the part of Pries, based upon a valuable consideration, that McAden “ may use the wall in such manner as may be proper and necessary to support and strengthen the building, he or they ” (his :heirs and assigns) “ may erect in the place of the one now on said lot,” thus creating a vested interest therein. While an easement is not transferred at law, for want of a seal to the instrument, necessary for that purpose, the contract, as executory, has in equity, when acted on, a force and efficacy little short, if any, of an easement, or right of support, to the wall, for the security of the adjacent premises, ■ and alike disables Fries and his successors from the arbitrary and reckless use of the adjoining earth, to the detriment of the other proprietor, without an accountability for the con-¡sequenpes. Ex. 4. This exception has as little support in law as the ■preceding. The plaintiffs are charged with a reckless inattention to their own premises, in not making provision for \the strengthening of the wall, to enable it to stand the effects [175] of the removal of the earth in impairing its capacity to bear the strain to which it was subject. In this connection, McAden, finding his remonstrances unheeded, had threatened a resort to a judicial restraining order, to arrest the work. It was met by a defiant declaration from Schiff, that if “ bothered” in that way, “ he would dig smack to the wall ” The objectionable words are but explanatory of the reason for not making application to the Judge for protection against this unwarranted invasion of a right to be secure in the possession and enjoyment of his own premises, so seriously menaced. In our opinion, it was competent, and, indeed, the forbearance was a strong appeal to the defendants to desist from their purpose. Ex. 5. This exception relates to a conversation between McAden and Ahrens, who came with propositions from Schiff to the former, and what passed was clearly admissible. The particular part deemed obnoxious, we suppose, from the argument, to be the remark about Schiff’s greed for land. If so, the objection should have been confined to that remark, for it is an established rule, that a general objection to evidence, of which only a part was incompetent, will not be entertained, if they are severable. Barnhardt v. Smith, 86 N. C., 473; Smiley v. Pearce, 98 N. C., 185. If, however, the obnoxious part had been specifically pointed out, it was a portion of the conversation drawn out, on cross-examination, and pertained to its subject-matter, Schiff’s unwillingness to respect the interests and rights of an adjoining proprietor, and, at most, was declaratory of the principal’s anxiety to have an enlarged basement upon his own premises. But in any view, the exception is untenable. Ex. 6. The exception to the ruling, that the witness Phifer was an expert, after a preliminary examination of his experience in digging cellars, has been already disposed of, as also the next exception, to his being allowed to say that it [176] was dangerous to go nearer to the wall than four feet in excavating; Ex. 8. This relates to the admission of proof of the injury to the goods from water employed to extinguish the flames. We do not understand the rule in pleading to be so stringent as to require a special averment of every immediate cause of the injury suffered, as in this case, from rust, depredations, and the like. The primary and efficient cause of all the injury, however, directly produced from fire or water, was the falling of the wall, and this brought about by undermining the earth near to it, and all the consequences resulting therefrom, are within the compass of the demand for compensating damages. Such is the ruling, even under the former strict practice, in Whitehurst v. Ins. Co., 6 Jones, 352, referred to by counsel. Ex. 9. The Court refused to entertain an inquiry into insurances effected on the property by the plaintiffs, as foreign to the purposes of the present suit. Thus, it has been held that, in an action to recover damages for an injury to the plaintiffs’ ship, no reduction could be made on the ground that he had recovered from the insurers. Wood’s Mayne on Dam., p. 155-156, citing Yates v. Whyte, 4 B. N. C., 272; Bradlum v. G. W. Railway Co., L. R., 10 Ex. 1; 44 L. J., Ex. 9. The reason given for which is, that to allow such diminu-ción would be to permit the wrong-doer to pay nothing, and take all the benefit of a policy of insurance, without paying the premium. Ex. 10. The Court charged, that upon the evidence accepted as truthful, the wall was a party wall; that is, a wall of right, used for the common benefit of both parties. That this is such, clearly appears from the contract upon the faith of which, it is inferable from the terms of the instrument, as well as from other facts, the injured structure was put up, as its timbers entered into and derived support [177] from the wall. What become party walls, and in what manner they are created, are questions, the learning in regard to which-is so copiously set forth in Mr. Washburn’s book on Easements, at the original paging 429, and following, that we deem it needless to pursue the discussion in regard to the relative rights of owners of adjacent lands or lots, further than to say, whether, in a technical sense, this was or was not a party wall, it had become invested with all the incidents attaching to such, so far as regards the right to its use by both, and the denial of the asserted right of the owner of the soil on which it stood to remove it, or endanger its' stability, by digging around, without reasonable precautions against doing injury to the other party interested in its remaining. Ex. 11. We cannot entertain an exception in general terms to an entire charge, and it is required to assign specific errors therein in order to the reviewal on appeal. We shall, therefore, only notice the second alleged error the first having been disposed of in the instruction, that, upon the evidence-, if believed, the response to the second issue should be in the affirmative. The evidence was so full and positive, contradicted by no one, not only of negligence, but of a reckless and persistent disregard of the admonitions and remonstrances of his own skilled workmen, as well as of indications visible in the ground, as the work progressed towards the danger limit, as wholly to set aside the defence, and render the defendant’s conduct inexcusable. It may be, that the danger would have been averted, if the suggestions had been heeded, of excavating and building the new wall in sections, so that a correspondent strengthening would have accompanied the weakening, as the work progressed, and the result vindicates the wise judgment of the contractors, that it would be safe to dig up to a four-foot line, and dangerous to go beyond it, for the wall remained when bearing a greater pressure, [178] where the four feet space was left, and gave way where but three feet were left. Ex. 12. The last exception seeks to excuse the defendants from the consequences, in that they employed skillful workmen to do the work. If that had furnished any defence for the reckless manner in which the work was, in fact, done, it disappears in the further fact that it was not left to their experience and judgment, but disregarding their skill and advice, the defendants .•assumed full control, and ordered and directed what was done, thus, themselves, becoming chargeable with the consequences. The employment of experienced and competent men only serves to extenuate and excuse when their experience and judgment become the basis of what is done. There is no complaint that what they were compelled, to do, was not done with proper skill, but 'that they were forced to go too near the wall, removing too much of the supporting soiL and this was the directly ordered act of the defendants. There is no error, and the judgment must be affirmed. No error. Affirmed.