100 The inconvenience caused must be appreciable. Back v. Stacey, 2 Car. & P. 465; Wells v. Ody, 7 Car. & P. 410; Arcedeckne v. Kelk, 2 Giff. 683.
101 Gerber v. Grabel, 16 111. 217 (but contra, Guest v. Reynolds, 68 111. 478); Robeson v. Pittenger, 2 N. J. Eq. 57; Sutphen v. Therkelson, 38 N. J. Eq. 318; Durel v. Boisblanc, 1 La. Ann. 407; Clawson v. Primrose, 4 Del. Ch. 643. It is denied in the following: Parker v. Foote, 19 Wend. (N. Y.) 309; Keats v. Hugo, 115 Mass. 204; Mullen v. Strieker, 19 Ohio St. 135; Haverstick v. Sipe, 33 Pa. St. 368. So, by statute, In some states. 1 Stim. Am. St. Law, § 22.">4; 4 Shars. & B. Lead. Cas. Real Prop. 246.
102 Palmer v. Fletcher, 1 Lev. 122; U. S. v. Appleton, 1 Sumn. 492, Fed. Cas. No. 14,463; Sutphen v. Therkelson, 38 N. J. Eq. 318. But see Maynard v. Esher, 17 Pa, St. 222; Doyle v. Lord, 64 N. Y. 432; Rennyson's Appeal, 94 Pa^ St. 147.
103 Bury v. Pope, Cro. Eliz. 118. And see, Pearson, P. J., In Shell v. Kem-merer, 13 Phila, 502. And the easement may be lost by abandonment Moor© v. Rawson, 3 Barn. & C. 332. But cf. Stokoe v. Singers, 8 El. & Bl. 31; Ecclesiastical Com'rs v. Kino, 14 Ch. Div. 213.
104 Blanchard v. Bridges, 4 Adol. & E. 176.
105 Cherrington v. Abney Mil, 2 Vern. 646.
106 Martin v. Goble, 1 Camp. 320.
107 But see American Bank-note Co. v. New York El. R. Co., 129 N. Y. 252, 29 N. E. 302; Field v. Barling, 149 111. 556, 37 N. E. 850; Barnett v. Johnson, 15 N. J. Eq. 481. As to windmills, see Washb. Easem. (4th Ed.) 669.
108 Butt v. Gas Co., 2 Ch. App. 158. But see Kirkwood v. Finegan, 95 Mich. 643, 55 N. W. 457; Kessler v. Letts, 7 Ohio Cir. Ct. R, 108.
229. The easement of lateral support is the right to have one's ground supported so that it will not cave in when an adjoining owner makes an excavation. It exists only for the land itself, and not for erections on the land.
230. The easement of subjacent support is a similar right between the owners of land which has been partitioned horizontally.
The right to lateral support is, as already said, a right to have land supported by the adjoining land.109 It is a natural, rather than a conventional, easement. The right exists only for the land itself, and not when the burden has been increased by greater weight placed upon the land through the erection of buildings or other structures.110 The right to the support of land with the buildings on it may, however, be acquired by prescription.111 When such easement does not exist, the adjoining owner must, nevertheless, make excavation in a reasonable manner, and give notice to the other party of his intention to excavate, so that the latter may take the necessary steps to prevent his buildings from falling in.112
The right to subjacent support is also a natural right, but exists only where land has been partitioned horizontally. This is the case when the surface belongs to one owner and the right to the minerals imbedded in the soil to another. The latter must not so operate his mine as to cause the surface to fall in.113 The person working the mines, however, is not required to furnish support for buildings which have been placed upon the land after the severance of the ownership of the mines and the surface, unless such increased inent has been acquired by lapse of time. But, even when buildings have been thus placed upon the surface, there would be a liability for negligent excavations.114
109 Gilmore v. Driscoll, 122 Mass. 199; Tunstall v. Christian, 80 Va. 1; Transportation Co. v. Chicago, 99 U. S. 635. Cf. Corporation of Birmingham v. Allen, 6 Ch. Div. 284. As to support of a house by a house, see Solomon v. Master, etc, of Mystery of Vintners, 4 Hurl. & N. 585; Richards v. Rose, 9 Exch. 218.
110 Thurston v. Hancock, 12 Mass. 220; Gilmore v. Driscoll, 122 Mass. 199; Panton v. Holland, 17 Johns. (N. Y.) 92; Smith v. Thackerah, L. R. 1 O. P. 564. But see Brown v. Robins, 4 Hurl. & N. 186.
111 Hunt v. Peake, Johns. Eng. Ch. 705; Partridge v. Scott, 3 Mees. & W. 220.
112 Lasala v. Halbrook, 4 Paige (N. Y.) 169; Moody v. Mcclelland, 39 Ala. 45; Austin v. Railroad Co., 25 N. Y. 334; Shafer v. Wilson, 44 Md. 268; Dodd v. Holme, 1 Adol. & E. 493; Chadwick v. Trower, 6 Bing. N. C 1.
Horizontal Ownership of Jbuildmgs,
The same principles apply to the horizontal ownership of buildings. The owner of the upper stories of a house has a right to support from the owner of the lower portion, and an easement in the use of the halls and stairs.115 The owner of the lower floors has an easement of protection by the roof.116 The two owners must so use their property as not to injure each other. But the law as to their rights is still very unsettled. Some cases hold that the upper owner must keep the roof in repair;117 others say that if he fails to do so the lower owner may enter to make the necessary repairs; while still other cases tend towards the French rule, which holds that the expenses are to be borne equally.118
231. Party walls are "walls used to support contiguous structures -which belong to different proprietors.
A party wall does not necessarily have any connection with easements, for it may "(1) belong to the adjoining proprietors as tenants in common;119 (2) it may be divided longitudinally into two strips, each strip belonging to the adjoining owner in severalty;120 (3) it may belong wholly to one proprietor, subject to a right held by the other to have it maintained as a party wall; (4) it may be divided longitudinally into two moieties, each moiety subject to a cross easement, a right of support in favor of the other." 121 Party walls are, however, usually built one-half on the land of each proprietor. If a wall is so built by one party, the other need not pay one-half its cost without an express agreement.122 It is usual for one of the adjoining proprietors to build the wall and the other to pay his half when he has occasion to use the wall. In some states, by statute, one owner is permitted to build one-half of a wall on the land of an adjoining proprietor, whether the latter consents or not.123 Such a statute has been held unconstitutional in Massachusetts.124 An agreement to pay for one-half of a party wall when used does not bind assignees unless recorded, or there is notice.125 When walls are constructed one-half on the land of each, each owner has an easement in the land of the other for the support of the wall.126 But this easement in the other's land is lost by the destruction of the wall.127 When the wall becomes ruinous, either may repair and compel contribution by the other;128 but
113 Jones v. Wagner, 66 Pa. St. 429; Humphries v. Brogden, 12 Q. B. Div. 739.
114 Marvin v. Mining Co., 55 N. Y. 538; Bononii v. Backhouse, El, Bl. & El. 622; Rowbotham v. Wilson, 8 H. L. Cas. 348.
115 Mayo v. Newhoff, 47 N. J. Eq. 31, 19 Atl. 837; Rhodes v. Mccormack, 4 Iowa, 388; Humphries v. Brogden, 12 Q. B. Div. 739; Harris v. Ryding, 5 Mees. & W. 60.
116 Wright, C. J., in Rhodes v. Mccormack, 4 Iowa, 368, 376.
117 Loring v. Bacon, 4 Mass. 575; Ottumwa Lodge, etc., v. Lewis, 34 Iowa, 67; Cheesehorough v. Green, 10 Conn. 318; Keilw. 9Sb, pl. 4; Anon., 11 Mod. 7.
118 Pierce v. Dyer, 109 Mass. 374; Loring v. Bacon, 4 Mass. 575.
119 Cubitt v. Porter, 8 Barn. & C. 257; Watson v. Gray, 14 Ch. Div. 192.
120 Matts v. Hawkins, 5 Taunt. 20. Where one intending to construct a wall within the line of his lot by mistake extends his foundation slightly onto an ad-joining lot, the wall does not thereby become a party wall. Pile v. Peilrick, 167 Pa. St. 296, 31 Atl. 646, 647.
121 Thornp. Fixt. & Easem. 93; Burton v. Moffltt, 3 Or. 29.
122 Walker v. Stetson, 162 Mass. 86, 38 N. E. 18; Wilkins v. Jewett, 139 Mass. 29, 29 N. E. 214; Mccord v. Herrick, 18 111. App. 423; Preiss v. Parker, 67 Ala. 500.
123 1 Stim. Am. St. Law, § 2170.
124 Wilkins v. Jewett, 139 Mass. 29, 29 N. E. 214.
125 Sebald v. Mulholland, 11 Misc. Rep. 714, 31 N. T. Supp.' 863; Sherred v-cisco, 4 Sandf. (N. Y.) 4S0; Joy v. Bank, 115 Mass. 60; Cole v. Hughes, 54 N. Y. 444; Conduitt v. Ross, 102 Ind. 166, 26 N. E. 198. Cf. Frohman v. Dickinson, 11 Misc. Rep. 9, 31 N. Y. Supp. 851. But cf. Savage v. Mason, 3 Cush. (Mass.) 500; Maine v. Cumston, 98 Mass. 317; Standish v. Lawrence, 111 Mass. 111.
126 Brooks v. Curtis, 50 N. Y. 639; Ingals v. Plamondon, 75 111. 118; Andrae v. Haseltine, 58 Wis. 395, 17 N. W. 18.
127 Partridge v. Gilbert, 15 N. Y. 601; Sherred v. Cisco, 4 Sandf. (N. Y.) 4S0; Hoffman v. Kuhn, 57 Miss. 746.
128 Campbell v. Mesier, 4 Johns. Ch. (N. Y.) 334. Cf., however, Pierce v. Dyer, 109 Mass. 374.
If the wall has been destroyed there is no right to compel the other party to stand half of the expense of rebuilding.129 Each owner, in using the wall, must do nothing to weaken it or otherwise to injure the adjoining proprietor.130