paired in a lasting and substantial manner. The only duty is to keep it in such a state that his neighbor may not be injured by its fall; the house may therefore be in a ruinous state provided it be shored sufficiently, or the house may be demolished altogether."

Party Walls. The right to fix a beam or timber into the wall of a neighbor's house, which prevailed in the Roman law (Dig. lib. 8, tit. 2, 2), depends with us upon the nature of the wall. If it stand wholly upon the land of the owner, it is clear that no such right can exist except by grant or prescription. Any attempt by the adjoining proprietor to fix a timber into the wall would be a trespass for which an action would lie; and probably it could be regarded by the owner of the wall as a nuisance which he could himself abate. And such a wall (the adjoining owner having acquired no rights in it) may be altered or removed at pleasure, provided no injury is done to the adjoining premises.

If, however, the wall be a party wall owned in severalty to the centre (mur mitoyen) or in common by both adjoining owners (mur commun), the case will be different, and each will be entitled to fix timbers into it.

The rule in such case is doubtless the same as that laid down in the French law, to wit, that each of the co-owners has the right to make use of the wall for all purposes for which it was designed, in a prudent manner, without damage to the wall or prejudice to the other owner. 3 Toullier, liv. 2, ch. 3, • § 199 (p. 138, 5th ed.).

In the case of a wall mitoyen, the French Code allows either of the common owners to build upon the wall, and to place upon it beams and joists not only to the centre of the wall but

through the whole thickness of it, upon the payment of a certain sum. Ib. This, however, was in derogation of the Coutume de Paris, which did not permit either to extend the timbers beyond the centre of the wall. But (under the Code) if the other owner wishes to put timbers into the same place he has the right to cut off the ends of his neighbors' timbers at the middle of the wall. Ib.

Under our law it would seem that where the wall is mitoyen (that is, owned in severalty to the centre), neither owner could put his timbers beyond the middle of the wall. To pass the line of division without permission would. doubtless be as much a trespass as to step foot upon the soil without permission; and the reason, or at least one reason, why the law will not allow this is, that the trespasser, if the act were permitted, might acquire an easement against his neighbor.

If, however, the wall be owned in common, the rule would perhaps be otherwise. See Stedman v. Smith, 8 El. & B. 1, showing that such a wall may be taken down by either owner, for the purpose of rebuilding, if necessary. See also Roberts v. Bye, 30 Penn. St. 375; Eno v. Del Vecchio, Duer, 17, 26; s. c. 4 Duer, 58; Partridge v. Gilbert, 15 N. Y. 601; Potter v. White, 6 Bosw. 647.

In Eno v. Del Vecchio, just cited, it was decided that if either of the coowners of a party wall wishes to improve his own premises before the wall has become ruinous, or incapable of further answering the purposes for which it was erected, he may underpin the foundation, sink it deeper, and increase, within the limits of his own lot, the thickness, length, or height of the wall, if he can do so without injury to the building upon the adjoining lot;

and, to avoid such injury, he may shore up and support the original wall for a reasonable time, in order to excavate and place a new underpinning beneath it. But he cannot interfere with it in any manner unless he can do so without injury to the adjoining building, unless he has the consent of the adjoining owner.

In either case if a party-wall rest upon an arch the legs of which stand within the land of the respective owners, neither can remove one of the legs to the detriment of his neighbor. Partridge v. Gilbert, 15 N. Y. 601; Dowling v. Hemmings, 20 Md. 179.

And upon general principles relating to property held in common, neither party could tear down the wall without the consent of the other, except for necessary repairs and rebuilding, though the wall was owned in common and not in severalty. See note on Trespass upon Property, ante, p. 358.

Again, either owner may, by the French law, run up the party wall, at his own expense, and at his own cost of repair, above the former height, and also paying a price to be fixed by experts for the increased charge upon the vall. 3 Toullier, liv. 2, c. 3, § 200.

By the law of England and of this country, either owner may run up the wall to any height, provided no damage is thereby done to the other. Matts v. Hawkins, 5 Taunt. 20; Cubitt v. Porter, 8 Barn. & C. 257; Brooks v. Curtis, 50 N. Y. 639, 644. But, if damage be done, however carefully the work may be carried on, it seems that the party will be liable if he has acted without the consent of his neighbor.

towards the centre of the earth-to which prima facie the unlimited ownership of the soil extends; to wit, a freehold in the surface soil and enough of that lying beneath it to support it, and a freehold in underlying strata, with a right of access to the same, to work therein and remove the contents. Washburn, Easements, 588 (3d ed.); Wilkinson v. Proud, 11 Mees. & W. 33; Rowbotham v. Wilson, 8 El. & B. 123, 142; New Jersey Zinc Co., 2 Beasl. 302-341.

But this right to the subjacent strata is not unqualified; on the contrary, it must be exercised in such a way (as was decided in the principal case, Humphries v. Brogden), as not to impair the support of the surface freehold. And it matters not that the underground work was conducted carefully, and in the usual manner.

In Richards v. Jenkins, 18 Law T. N. S. 437, it was decided that there is a difference between rights of support against a subjacent owner of land and an adjacent owner (that is, between underlying and lateral support), in respect of erections upon the dominant tenement. The right to the support of buildings, as we have seen, depends, generally speaking, upon the question whether they are ancient or not; but, as against the underlying freehold, the owner of the overlying tenement is entitled to the support of all buildings which were erected (however recently) before the title of the lower owner began and possession was taken.

Whether the upper owner is entitled to support for buildings subsequently erected was not decided; but it was the opinion of Channel, B., that he would not be, until after twenty years' user. See also, upon the subject of support of buildings, Harris v. Ryding,

5 Mees. & W. 60; Smart v. Morton, 6 El. & B. 30, 46; Rowbotham v. Wilson, ib. 593; s. c. 8 H. L. Cas. 245; Haines v. Roberts, 7 El. & B. 625; Rogers v. Taylor, 2 Hurl. & N. 828; Partridge v. Scott, 3 Mees. & W. 220; Strayan v. Knowles, 6 H. & N. 465; Brown v. Robins, 4 Hurl. & N. 186; Northeastern Ry. Co. v. Elliot, 1 Johns. & H. 145; s. c. 10 H. L. Cas. 333; Bonomi v. Backhouse, El., B. & E. 646; 9 H. L. Cas. 503, deciding that the right of subjacent as well as lateral support is a right of property and not an easement, and therefore that the Statute of Limitations begins to run from the time of the damage to the plaintiff, and not necessarily from the time of the wrongful act of the defendant.

The right of support of upper tenements of houses owned by different persons is analogous. This subject, however, does not appear to have much engaged the attention of our courts. The principles, indeed, seem simple. It is but reasonable that the occupant of the lower tenement should be required to abstain from all acts which would impair the supports of his neighbor overhead. Graves v. Berdan, 26 N. Y. 501. This rule would not prevent him from making necessary repairs; but, in doing this, it would doubtless be held necessary for him to keep a sufficient underpinning below the upper tenement to prevent the walls from sinking or cracking. Under what circumstances he would be justified in putting his neighbor above to the annoyance of repairs; or whether he would be compelled to make improvements in order to prevent the upper tenement from sinking, — quære? And quære, also, whether he would be justified in making unnecessary im

provements to the annoyance of the occupant above? See Keilwey, 98 b, pl. 4; Anonymous, 11 Mod. 7; Loring v. Bacon, 4 Mass. 575; Stevens v. Thompson, 17 N. H. 109; Calvert v. Aldrich, 99 Mass. 74; Cheeseborough v. Green, 10 Conn. 318; Ottumwa Lodge v. Lewis, 34 Iowa, 67; Washburn, Easements, 597-599 (3d ed.), where the effect of these cases is stated. Most of them, however, are cases of contribution between co-owners, which subject we do not consider.

The French law throws some light upon this subject. The Code Napoleon, Art. 664, provides for the adjustment of repairs; declaring that when the different stories of a house belong to different proprietors, if the titles to the property do not regulate the mode of repairs and reconstructions, they must be made in this way: The main walls and the roof are at the charge of all the proprietors, each in proportion to the value of the story belonging to him. The proprietor of each story makes the floor belonging thereto. The proprietor of the first story erects the staircase which conducts to it; the proprietor of the second story carries the stairs from where the former ends to his apartments; and so of the rest. Code Nap. London ed. 1824, transl.

M. Merlin, in his Répertoire de Jurisprudence, tit. Batiment, says that when a building is in the possession of two owners, one owning the lower story and the other the upper, either can do any thing which he pleases in the portion which he possesses, provided always that he does no prejudice to the other, in respect either of convenience or of support. For instance, says this distinguished author, the one who occupies the lower tenement cannot make a forge there, for that would discommode

the upper owner; and this had been so adjudged. Likewise, he continues, the lower owner cannot change the situation of the funnels of the chimneys, or make new ones where there were none before; and so of other changes or innovations (nouveautés) which would affect the upper tenement.

In the custom of Auxerre, art. 216, referred to in the same connection, it is provided that if the lower story of a house belongs to one man and the upper to another, the owner of the lower story is bound to construct and maintain all the walls of the house up to the story which belongs to the other proprietor, and to furnish the beams, joists, and ceilings of the floor above the part which belongs to him. And the customs of several other cities named are the same. Thus, says M. Merlin, according to these customs, each proprietor maintains only the walls of the stories which belong to him; and the owners of the upper stories do not

contribute to the lower part of the walls, though this serves them for fixing timbers (d'appui) and for support. See also 3 Toullier, 152; 5 Duranton, 384.

Easements of Light.

It only remains to remark that the English doctrine of easements of light, natural or prescriptive, referred to in Thurston v. Hancock, does not prevail in this country. Parker v. Foote, 19 Wend. 309; Pierre v. Fernald, 26 Maine, 436; Napier v. Bulwinkle, 5 Rich. 311; Cherry v. Stein, 11 Md. 1; Haverstick v. Sipe, 33 Penn. St. 368; Hubbard v. Town, 33 Vt. 295; Ward v. Neal, 37 Ala. 500; Mullen v. Stricker, 19 Ohio St. 135, 142; Ingraham v. Hutchinson, 2 Conn. 584; Keats v. Hugo, 115 Mass. 204, overruling Story v. Odin, 12 Mass. 157, and the dictum of the principal case, and similar ones in Grant v. Chase, 17 Mass. 443, and in United States v. Appleton, 1 Sum. 492.