Cheeseborough against Green, 10 Conn. 318

Daggett, Ch. J. The declaration, in substance, is, that the plaintiff'Owns the fir.t and second stories of a brick store, and the defendant owns the third story and roof. The defendant, has suffered the roof to decay and become leaky and ruinous, so that the lower part of the building is injured ; and for this neglect of the defendant this action is brought. The superior court, on a trial, found the facts alleged true, but adjudged the declaration insufficient. It is now to be decided, by this court, whether this action can be sustained.

There is no statute, nor any custom, nor any adjudged case in Connecticut, on the subject. The plaintiff relies upon the principles of the common law to uphold this action. He founds himself, principally, on a case Keilway 98. b. pl. 4. where the doctrine was laid down, by two judges of the court of King's Bench. In Tenant v. Goldwin, 6 Mod. 314. S. C. 1 Salk. 360. Lord Holt disapproved of the case in Keil-way, and said, that it was not supported by the custom of particular places, and not by the common law.

There was a writ de reparations f atienda against those of several joint tenants, or tenants in common, who refused to join in necessary repairs. So if the house of A be near that of B, and the former become so ruinous that it endangers the latter, B may have a writ de domo reparanda, and compel A to repair his house. I am not aware, that any such writ has been known in the practice of our courts- Perhaps an action on the case would lie against any one, who should negligently suffer his building to decay, and fall on and injure the property of another, on the maxim Sic utere tuo ut alienum non Icedas.

That, however, is not this case. Nor can we say, in the absence of statute regulation, or express decision, that this doctrine is so reasonable that an action can be sustained. In large cities, houses generally consist of four or five stories. The owner of the fifth story, upon the principle assumed by the plaintiff, is compellable to furnish a sufficient roof to protect the whole building against water. Also, the owner of each story is obliged to secure the side and ends, as the case may be, against the entrance of water to the annoyance of all those who own or occupy below.

The owner of the lower story is compellable, also, to keep the foundation suitably repaired, to sustain each of the other stories, with their additional (as the case may be) superincumbent weight. These considerations, and others easily suggested, would lead to the conclusion, that a remedy, in such case, can be furnished, only by a court of chancery. The principles adopted, by Chancellor Kent, in Campbell v. Mesier & al. 4 Johns. Ch. Rep. 334. countenance this idea. The case of Loring v. Bacon, 4 Mass. Rep. 575. was pressed, by the counsel for the plaintiff.

There, it was decided, that the owner of the upper story could not recover in assumpsit against the owner of the lower floor and cellar, for necessary repairs to the roof. Chief Justice Parsons speaks of the case in Keilway, without deciding on its authority. He does not decide the plaintiff to be without remedy: lie says truly, he has no legal ground for recovery. It will be borne in mind, that there was then [1806] no court of chancery in Massachusetts.

On the whole, I incline to adopt, as the result of my deliberations, the opinion, that in a court of chancery only can the plaintiff have adequate remedy; and that there is, therefore, no error in the judgment complained of. The other Judges were of the same opinion, except Peters, J., who was absent. Judgment affirmed.