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tion of the jury by the evidence in the case, and such proof must be made by the party alleging, asserting, and relying upon it. This proof usually consists in proof of acts or conduct which the courts call "badges of fraud." It is impossible to get direct proof of it. No one is foolish enough to admit that he is committing a fraud. It is for the court to judge and decide what is such a badge. We have said that constituting the husband as agent is not such a badge. Neither do we think that the husband, it having been previously proven that he was the agent, had a power of attorney to attend to the business for his wife; that his selling, buying, and attending generally to the business is such badge, for such conduct was in the line of his agency. This is all, gentlemen, which I think necessary to say on the law. If your verdict should be for the plaintiff, the plaintiff is entitled to damages for the seizure and sale of the hay. It was sold by sheriff for the sum of $659.50, interest from - 21. 1881. This sum, then, with its interest, is the proper measure of such damages. If verdict, however, should be for defendant, your verdict should be simply not guilty, or for the defendant.

Verdict for plaintiff.

STIMMEL v. BROWN. (Superior Court of Delaware. May 21, 1885.) ADJOINING PROPERTY OWNERS-LATERAL SUPPORT FOR LAND-MEASURE OF DAMAGES-SPECIAL DAMAGE-PROOF-SPECIAL CUSTOM.

1. Each of two adjoining owners of real property is entitled to the lateral support of the other's land.

2. Where defendant; the owner of a city lot adjacent to plaintiff's property, excavated along the division line between them for the purpose of reducing the level of his lot to the grade of the street, causing plaintiff's lot to cave in, plaintiff may recover the amount required to restore his property to its former condition, with as good means of lateral support.

3. In an action against an adjoining property owner to recover for damage sustained by the caving in of plaintiff's property, consequent upon such owner's excavations on his own, any damage further than the actual caving in, as the obstruction of drains or destruction of a fence, must be specially alleged, and its money value shown, to entitle plaintiff to recover therefor.

4. The establishment of a special custom is precluded by a conflict in the testimony of credible witnesses in reference thereto.

Action by Martha C. Stimmel against Samuel Brown to recover damages to plaintiff's land, sustained by her in consequence of certain excavations made by defendant, an adjoining owner.

The plaintiff is the owner of a lot and house in the city of Wilmington, the latter being built on natural ground, elevated about five feet above the street grade. The defendant, owner of an adjoining lot on the north, dug an excavation on his ground causing the fence and a three-feet wide alley connected with the plaintiff's property

to cave in, and by allowing it to remain in nearly the same condition, decreased the amount of rental and the value of the property. There was evidence as to the amount of damages sustained by plaintiff, and the cost of a brick and stone wall necessary to support her ground, and prevent it from caving in. The defendant testified that he believed his action right in excavating as he had done; that neighbors told him he had a right to dig down and grade the ground on his side perpendicularly up to the division line of their two lots, and the plaintiff would have to prevent her side from crumbling and caving in on his land; and he produced several witnesses, who were prominent builders and contractors of the city, by whom he proposed to prove that it was a universal custom in that city that where the owner of an adjoining lot cut down his ground on the dividing line, as in this case, the adjoining owner has to build the wall to prevent his ground from crumbling and caving in on the other's land.

Benjamin Nields, for plaintiff. George Gray, for defendant.

COMEGYS, C. J. (charging jury). It would be reasonable to suppose that the question raised in this case had been before made in the courts of this state; but there is no evidence to support such supposition, and therefore it is to be treated as a new one for decision. What are the rights, duties, and liabilities of adjoining owners of real estate, with respect to each other, in matters concerning the use and enjoyment of such estate? That is such question. The plaintiff and defendant are, respectively, owners of lots of ground in the city of Wilmington, on Jefferson street, between Eighth and Ninth streets, which adjoin each other. They are small lots, with a frontage on Jefferson street, each of 20 feet. Prior to the act of the defendant, the consequences of which are the cause of action in this case, the lot of the plaintiff had been built upon by the erection of a dwelling house with back building and cellar, which constituted the residence of the plaintiff and her family. The grade of Jefferson street was about five feet below the level of the ground

which this house was erected, which ground was not disturbed as to its grade. In 1882, the defendant, desiring to build on his ground, and intending to conform his lot to the level of the street grade, proceeded to dig down his ground up to the dividing line between the two lots, in consequence of which the fence which the plaintiff had erected between them fell down, and the earth crumbled also so much as to render her alley between the dwelling and the line practically useless; the pavement upon it being displaced, and also a waste pipe, or conduit, for the discharge of surface water, and the house drainage. To supply the service of the latter, it became necessary to

make another drain, and this time it had to pass through the cellar. Access to the back building, and from it to the street, was made so difficult by the damage that the main building had to be used for that purpose. The dwelling house covered the breadth of the lot, with the exception of three feet and a quarter of an inch; and this was the width of the alley. While the excavation was going on, with the damage as it progressed, the plaintiff complained to the defendant of the consequences of his act, and denied his right to dig away his soil up to the line without building a wall of stone to prevent the crumbling. The defendant, on the other hand, insisted upon his right, and contended that, if the plaintiff wished to protect her property, she must do it at her own expense, as he was not bound to do it for her. Thus, the parties raised themselves, out of court, an issue in law, and that issue has been transferred by them, by appropriate proceeding, to be tried and settled before and by us and you, in the tribunal of the superior court.

The case is one of unusual importance, as it presents, as has been before said, for the first time, the subject of the respective rights of owners of adjacent lots of land to the support each parcel is entitled to have from the other. Perhaps the best mode of instructing you about the law is to give you examples where it applies. Two men are owners, respectively, of adjoining lots in a city or town, which are both in their original state; that is, not built upon. One wishes to build, and chooses to do so along the dividing line between himself and his neighbor. In the prosecution of his purpose, if he dig a cellar or make other excavation on the line, or near it, so that the soil of his neighbor, by its own weight, falls into it, he will be answerable for the damages resulting therefrom to his neighbor. But, if his neighbor have placed some structure or erected some building on his land which falls or becomes injured by reason of its being erected so near the line as to contribute by its weight to the crumbling of the soil, he can recover nothing for such injury, in the absence of proof of carelessness, negligence, or unskillfulness in the execution of the work. This, however, does not apply in the case of a building or structure which has been erected for more than 20 years; in which case the owner has, in contemplation of law, the right of security against excavation upon adjoining land after that period, the same as if one person had been originally the owner of both parcels, and granted one with the express right of erecting buildings upon it at or near the line, as his grantee might choose, and that they should not be injured or affected by erections or excavations upon the other, and had granted that other subject to the terms in the deed for the former. By the law of the land, an owner of real estate has the right to all above and all below it; and, consequently, may do as he pleases with his own. But this right

is subject to the qualification that he must not exercise it to the detriment or injury of an adjoining owner's right. An owner has the right to his own soil, but no more than his neighbor has to his soil. Therefore it is that, in using or exercising this property right, no injury must be done to the other's right. This is a maxim of the law. Hence, when an owner commences to dig a cellar or otherwise along the division line between his land and that of a neighbor (which he has a perfect right to do), he must take care to protect the soil of the latter from crumbling or falling, by its own weight, into the cavity. If he make such protection, then the land of the neighbor has received no injury, but, if such protection be not afforded, he is answerable for all damage resulting from such neglect; for "among the rights which adjacent proprietors of lands may have to enjoy the benefit of their contiguity is that of having one parcel laterally supported by the oth

It is a right incident to the ownership of the respective lands, rather than an easement which one has in the other." Washb. Easem. (1863) p. 429, c. 4.

To the plaintiff's complaint of grievance, the defendant pleads that he was justified in doing the act complained of, by reason of a special or particular custom, prevailing in the city of Wilmington, that in a case like the present the party whose lot is to be injured by an excavation of contiguous soil, if he wished protection to his own soil against such excavation, must furnish it himself, and with his own means. It is proper you should understand what, in law, a custom is; for the defense in this case is of this plea alone. There is no denial of the act done; it is admitted by the plea, which confesses it, but seeks to avoid the effect of it by reliance upon the alleged custom. Customs are of two kinds,-general and special. General customs are such as apply to the whole community or state; they are the common law of that state or kingdom. Our ancestors who settled this country were chiefly English, and brought with them, for their government in the social state, the common law of England; that is, the law not passed by any legislative authority, but which had its origin in consent. Most of our law is of this nature. Wherever a free people "consent and use a certain rule or method as a law, such rule, etc., gives it the power of a law; and, if it is universal, then it is the common law; if particular to this or that place, then it is custom." 3 Salk. 112. "As to the rise of customs, when a reasonable act once done was found to be good and beneficial to the people, then they did use it often; and, by frequent repetitions of the act, it became a custom, which being continued time out of mind, it obtained the force of a law to bind the particular places, persons, and things concerned therein. This custom This custom had beginning and grew to perfection." 2 Jac. Law Diet, 171. But, to make a special or particular custom good, it must "have been used so long that

to the commencement of the action, tore it down, and that thereby the cattle entered plaintiff's close, and did the damage complained of, is sufficient on demurrer.

the memory of man runneth not to the con- | tween their closes for more than 15 years prior trary." Co. Litt. 113. Thus, although it should be established that a particular custom prevailed in any place, yet, if the origin of the custom could be shown to be within

the legal period of memory (which is one of several hundred years), it would be no good custom. Id. But, to establish in any case a particular custom, it must appear in some way that it had its origin in common consent. The fact of its being disputed, at law or otherwise, is a proof that such consent was wanting. It must have been acquiesced in, and not subject to contention and dispute. Id. 114. With this statement of what is necessary to establish a particular custom, it is quite plain, if the plaintiff's witnesses are to be credited, that no such custom as that upon which the defense relies exists. The fact of conflict of testimony by the witnesses, inhabitants of the city, repels the idea of custom, which is law by consent. There can be no consent, such as the maintenance of a custom requires, where some of the alleged consenting parties deny or dispute the custom. The defense therefore fails; and the sole question for you is, what amount of damages ought to be given to the plaintiff.

You have

heard a great deal of testimony upon this point. Looking at the matter from a general point of view, we say that the measure of damages is what it would have cost the plaintiff in May, 1883 (the time when the suit was brought), to restore her property to as good a condition, and as good a state of protection by lateral support, as it had before the excavation was made. If you think, with many of the witnesses, that a stone wall was necessary to make such support, you may allow for such wall. You have been told what the expense of such restoration-stone wall and a fence upon it-would be. The estimates do not vary much. You may also allow the plaintiff, if you think proper to do so, for any other damage she has shown to have been a necessary consequence of the defendant's act, provided the value or amount of such damage has been proved by the testimony; but you are not to consider any claim of damage unless proof not only of it has been satisfactorily made, but also of the value of it in dollars and cents. In no case of claim for damages in an action like this are any, beyond the nominal verdict of six cents, to be allowed, unless proof be made of what they consisted, and their value or amount.

Verdict for the plaintiff.

CARPENTER v. COOK. (Supreme Court of Vermont. Orange. Dec. 3, 1891.) TRESPASS-ADJOINING OWNERS - PENT ROADDUTY OF LANDOWNER TO FENCE

TRESPASSING Cattle.

1. In an action for trespass to land with cattle, a plea entered by defendant that plaintiff, having maintained a gate in the fence be

2. In such a case, where plaintiff alleges the existence of a "public highway" between his own and defendant's close, the pleading will be construed most favorably to defendant, as referring to a "pent highway," and not an "open highway."

3. The term "highways," as used in R. L. §§ 3178, 3179, relieving owners of land from the duty of maintaining fences on the sides of "highways," does not include pent roads.

4. The duty imposed by R. L. § 3179, upon owners of adjoining tracts of land, to maintain equal portions of the division fences, is not changed by the existence of a pent road wholly upon the property of one, and contiguous to the land of the other; a pent road not being a "highway," within the meaning of R. L. § 3178, providing that owners of land adjoining highways need not maintain fences.

5. The owner of land subject to a pent road may make any use of the road not inconsistent with a reasonable use of it as a pent road. Exceptions from Orange county court; Ross, Chief Judge.

Trespass quare clausum by Leander C. Carpenter against Almena P. Cook. Heard upon demurrer to the defendant's rejoinder. It was adjudged that the plaintiff's replication was insufficient, and plaintiff excepts. Exceptions passed to supreme court before final judgment.

John H. Watson, for plaintiff. Smith &. Sloane, for defendant.

ROWELL, J. This is an action of trespass to land with cattle. The question arises on demurrer to the rejoinder to the replication to the third plea. Said plea alleges that the defendant had a close adjoining the plaintiff's close, in which, etc.; and that, for more than 15 years before the commencement of this suit, a fence had been maintained between said closes; and that, for a like space of time, a gateway and a gate had been maintained, for the plaintiff's convenience, through said fence to his dooryard, which said gate had all that time been built, maintained, and kept in repair by the plaintiff and the other owners and occupants of the said close; and that said gate, being a good and sufficient gate to stop cattle. was left open, torn down, and carried away by the plaintiff, whereby and by means whereof the cattle in the declaration mentioned, at the said several times when, etc., then lawfully feeding and depasturing in the defendant's said close, without the knowledge and against the will of the defendant, escaped thereout into the plaintiff's said close, through the defects and insufficiency of said gate so left open and destroyed by the negligence of the plaintiff, and committed, if at all, the trespasses complained of. The replication alleges that before and at the said several times when, etc., there was a public highway between said closes, and that the plaintiff's dooryard was contiguous thereto; that said gateway was in said fence between said dooryard and said highway, and on the side

of said highway, and led from said dooryard into said highway; that before and at the said several times when, etc., in said plea mentioned, no gate had been there maintained nor kept in repair nor closed, and that along and upon the side of said highway, contiguous to the defendant's close, the defendant did not at the said several times when, etc., keep, maintain, nor have a fence sufficient to stop cattle that were feeding and depasturing therein from escaping therefrom into and upon said highway; and that at the said several times when, etc.. said cattle did stray from the defendant's close into and upon said highway, and thence into the plaintiff's close, and there committed the trespasses complained of. The rejoinder alleges that, if there is a public highway there as replied, it is only a pent road, and wholly on the defendant's close; and. if any part of it is contiguous to the plaintiff's close, it is necessary for the protection of the defendant's close and crops therein to have a suitable fence between the plaintiff's close and the defendant's close and said pent road; and, if it is necessary that a gate should be maintained for the convenience of the plaintiff in getting from his dooryard to said road, it is equally necessary and reasonable that said gate should be kept closed for the protection of the defendant's close and crops therein; that, for more than 15 years before the commencement of this suit, said gate and fence had been so kept and maintained in a good and sufficient manner on the line between the plaintiff's and the defendant's close, by the recognition and acquiescence of the owners of both closes, and of right ought to be maintained for the protection of the defendant's close and crops; and that at the said several times when, etc., it was the duty of the plaintiff to keep said gate closed, and, if any trespass was committed as alleged, it was by reason of the plaintiff's neglect and refusal to keep said gate closed, or to allow it to be maintained, and by reason of his tearing down a sufficient gate that had been kept and maintained as aforesaid. The causes of demurrer assigned are that the rejoinder is argumentative, double, and hypothetical. It is also claimed that it departs from the plea, and that this objection can be taken advantage of under the general demur

rer.

The plaintiff attacks the plea as bad in substance, for that it does not show a prescriptive nor other obligation on him to keep and maintain said gate. But, if this is so, the fact that there was a gate there in the division fence, that the plaintiff and those under whom he claims had kept and maintained for the purpose and in the manner alleged, which was sufficient to stop cattle, and which he tore down, and through which, by reason thereof, the cattle escaped into his close, and did the damage complained of, makes the plea good, regardless of whether he was bound or not to maintain the gate;

for thereby, in the circumstances disclosed in the plea, he became and was a wrongdoer, and the author of his injury, and therefore cannot be heard to complain.

The next question is whether the replication is good in substance. The public highway mentioned therein is not alleged to be an open highway, and, as everything is to be taken most strongly against the pleader, it must be taken to be a pent highway, which fulfills the allegation. It is conceded that the replication is bad if pent roads do not stand like open highways in the law of fences. The statute provides that owners or occupants of adjoining lands, when the lands of both parties are occupied, shall make and maintain equal portions of the division fence between their respective lands, but that the owners of lands are not bound to make and maintain fences on the sides of highways, and that occupied land bordering upon highways shall be deemed the inclosure of the owner or occupant. R. L. §§ 3178, 3179. It also provides that, when the lands of two or more individuals are so situated that either is not compelled to make and maintain a fence on the dividing line between their lands by reason of highways lying between, each owner or keeper shall be liable for the damage done on the occupied lands of others by an animal straying from his lands, and being taken on such occupied lands. Id. § 3183. Concerning pent roads it provides that the selectmen may allow them to be inclosed and occupied by the owner of the land during any part of the year, and bars and gates, in such places as they designate, to be erected thereon; and persons willfully removing any such bars or gates, thereby exposing the lands or crops of any person to damage, are subjected to a penalty. Id. §§ 3004, 3005. In Wolcott v. Whitcomb, 40 Vt. 40, it was held that, in the absence of regulations, by the selectmen upon the subject, the owner of the land has a right to erect bars and gates on a pent road for the protection of his field. and crops, if he does not thereby interfere with the reasonable use of the road as a pent road.

Although the statute uses the general term "highways" in providing that owners of lands are not bound to make and maintain fences on the sides of highways, and does not in terms distinguish between open public highways and pent roads, which are public, but not open, highways, yet when all the provisions of the statute on the subject are construed together, as they must be, it is considered that the term "highways," as used, was not intended to include, and does not include, pent roads. The statute that the selectmen may allow pent roads to be inclosed and occupied by the owner of the land, and bars and gates to be erected thereon, we construe to embrace a case like this, where the road is wholly on the land of one, but contiguous to the land of anoth

er; and that section and the one imposing a penalty for willfully removing such bars and gates, thereby exposing the lands and crops of any person to damage, clearly indicate that the owner may occupy the road as a part of the field through which it runs, and that his occupancy of his field shall not be interfered with by the road any further than is necessary for the reasonable use of it as a pent road, from which it logically follows that the rights and obligations between him and an adjoining owner in respect of division fences remain unaffected by the existence of the road. This statute, thus construed, is inconsistent with the idea that the defendant was bound to restrain her cattle from going upon said road, and thence into plaintiff's close, the same as she would have been had said road been an open highway; and it qualifies and restricts the statute that owners of lands are not bound to make and maintain fences on the sides of highways, and renders it inapplicable to pent roads, and leaves applicable to this case the statute that owners and occupants of adjoining lands, when the lands of both parties are occupied, shall make and maintain equal portions of the division fence between their respective lands.

It is frequently necessary to qualify and restrict general words in a statute, in order to harmonize the provision with other provisions, and give them force and effect. Another instance of this kind may be found, we apprehend, in the statute against nuisances and obstructions in highways, which provides that if a person incloses a part of a highway, or erects a fence upon a highway, he shall incur a penalty. Here the general term "highway" is used the same as in the statute we have been considering; yet no one would claim, we presume, that the statute intends to make it unlawful for the owner of the land through which a pent road runs, in the absence of regulations by the selectmen, to erect gates and bars thereon for the protection of his field and crops, as this court has decided he has a right to do.

We decide, therefore, that the replication is bad in substance, which renders it unnecessary to consider the other questions raised and discussed at the bar. Judgment affirmed, and cause remanded.

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2. Mere inadequacy of price is not sufficient ground for the inference that a sale of personal property was not absolute and unconditional.

Appeal from court of common pleas, Allegheny county.

Issue formed under the sheriff's interpleader act, in which George H. Goddard and others, partners, doing business as Goddard, Hill & Co., are plaintiffs, and Leopold Weil and another, partners, doing business as Leopold Weil & Co., are defendants, to try the right to a stock of goods, consisting of watches, clocks, and jewelry, levied on under an execution in favor of defendants against E. J. Black, and claimed by plaintiffs under a bill of sale to them from Black. From a judgment for plaintiffs, defendants appeal. Affirmed.

The following errors were assigned, among others: "First. The court erred in its answer to defendants' first point, which was as follows: (1) That, under all the evidence in this case, the verdict must be for the defendants.' Refused. Second. The court erred in its answer to the defendants' third point, which was as follows: '(3) If the jury find that the property covered by the bill of sale was worth $5,200 or thereabouts, and that the total indebtedness of Black to Goddard, Hill & Company did not exceed $3,710, then they will be justified in inferring from this fact that the sale was not absolute and unconditional; and, if they so conclude, the alleged sale was fraudulent and void in law, and the verdict must be for the defendants.' Refused."

J. S. & E. G. Ferguson, for appellants. Jackson & Lang, for appellees.

FELL, J. Where personal property sold is not reasonably susceptible of actual delivery, a constructive delivery is sufficient; and it is not necessary that the vendee should do more than assume such control of it as to reasonably indicate the fact of the change of ownership. If there has been neither delivery nor the assumption of control, it may be the duty of the court to pronounce the sale void for legal fraud; but, when the vendee has assumed control, the question whether the sale is bona fide is usually one of fact, and the question is whether the vendee has done all that could reasonably be expected in such a case. This is to be determined in view of the relation of the parties, and the nature, use, and situation of the property.' This rule has been upheld in a long line of cases, among the later of which is Renninger v. Spatz, 128 Pa. St. 524, 18 Atl. 405.

A verdict could not have been directed against the plaintiffs for want of delivery, or for want of continued and exclusive possession. The testimony showed a symbolic delivery at the time of the sale, and the assumption by the vendee of immediate and exclusive control of the property, followed by a change of all indication of the former own

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