Page:United States Reports, Volume 1.djvu/356

Rh 

1788.

hardly be pretended that an action would lie before the fecond houfe was begun ; until which time it is impoffible to fay how much of the wall is wanted, nor, confequently, how much contribution is due. But the Plaintiff does not infift on thiss new right ; he does not afk for payment before, but long after, his wall has been ufed ; and, furely, the Legiflature that gave a right in the former cafe, muft have admitted a much ftronger right to recover in the latter ; for, he who ufes another's property is liable, at all times, to pay for it. This, indeed, is a principle of natural juftice paramount to all Acts of Affembly ; and, as every continuance of a nuifance is a culpable as the original offence, the Defendant's continuing to occupy and ufe the Plaintiff's wall, is, in itfelf, fufficient to make him liable to the prefent demand.

SHIPPEN, Preʃident. The principal point in this cafe is, whether under our Act of Affembly, the moiety of the coft of a party wall, is a perfonal charge againft the builder of the fecond houfe, or fuch a lien upon the houfe itfelf, as fhall render it liable to the reimburfement of the firft builder, into whofe hands foever it may come?

Lien is a technical term, that means a charge upon lands, running with them, and incumbering them in every change of ownerfhip ; as mortgages, judgments, ground rents &c. There are fome liens, alfo, created by ftatute; as, in the very act in queftion, where a perpetual lien is clearly given to the firft builder of a party wall, for fo much of his neighbour's land, as one half of the breadth of the wall fhall cover. It is enacted, at the fame time, that the fecond builder, having the ufe of one half of the wall, fhall reimburfe one half of the expence of building it ; which is a reafonable and ufeful regulation, calculated to prevent animofities and difputes.

Whether, however, a purchafor of the fecond houfe, after it is built, fhall be liable to the claim of the firft builder, who has neglected, or declined, to infift upon the payment, before his wall was broken into, has been made a queftion, but, I think, it is eafily refolved by attending to the expreffion and manifeft intent of the law.

The Act of Affembly declares that the firft builder fhall be reimburfed; but it alfo prefcribes the time of reimburfement to be, beƒore the ʃecond builder ƒhall in any wiʃe uʃe, or break into the wall.  This, it has been obferved, is an indefinite right of payment ; for, until the fecond houfe is begun, it cannot always be afcertained how much of the wall will be wanted, nor, until then, is there any form of action in which a recovery can be had. But this argument may, at once, be obviated by confidering, that if aman makes a breach in my wall, he is a trefpaffer, and, generally fpeaking, I have a competent remedy for the injury which he has done. The Act of Affembly, however, provides, that any perfon whofe lot joins upon any houfe, may lawfully ufe and break into Rh