Lampman v. Milks.

sup

There is still another class of cases which illustrate and port the same doctrine. If a man has a house standing directly upon the line of his lot, he has, in general, no remedy against the owner of the adjoining ground, who, by excavating upon his own land, has weakened the foundation of the house so as to cause it to fall. So, also, if the house is partially supported by a building upon the adjoining lot, the owner of the latter building may pull it down, although, in consequence of its removal, the house should fall. If, however, the house and the adjoining premises have both belonged to the same individual at any time subsequent to the building of the house, the owner of the house would, upon the severance of the two tenements, have acquired a right to all the support at that time afforded by the adjoining premises. The cases on this subject are numerous, but I will refer to two only.

Peyton v. The Mayor, &c., of London (9 Barn. & Cres., 725), was an action on the case to recover damages for pulling down an adjoining house, in consequence of which the plaintiff's house was impaired and partly fell. It was held, that, as the plaintiff had not alleged or proved any right to have his house supported by the defendant's, he was bound to protect himself by shoring. It was, however, impliedly conceded, that, if the houses had been built or owned by the same person, and afterwards passed into different hands, such a right would have existed. Lord TENTERDEN, in giving his reasons for the decision, says: "It did not appear whether the two houses had been erected at the same time, or at different times: from their construction, it seems likely that they were built at or about the same time. The freehold was then in different hands: and as the governors of the hospital (the defendants) are not likely to have bought or sold in modern times, it is probable that the freehold was also in different hands when the houses were built." This seems plainly to imply, that, if the houses had been in the same hands when built, an easement, or right to support, would have existed.

Chancellor WALWORTH, in the case of Lasala v. Holbrook (4 Paige, 169), adverts to the same distinction. The object of

Lampman v. Milks.

the action there was to obtain an injunction, restraining the defendants from excavating upon their own lot in Ann street, in the city of New York, so as to endanger the walls of a church standing upon the adjoining lot. The object of the defendants, in excavating, was to erect a building upon their lot. It was held, that, if a person, in excavating for the improvement of his own lot, digs so near the foundation of a house on an adjoining lot as to cause it to settle or fall, he will not be liable for the injury if he has exercised ordinary care and skill in making the excavation. But the Chancellor said: "There is another class of cases, however, where the owner of the building on the adjacent lot is entitled to full protection against the consequences of any new excavation, or alteration of the premises intended to be improved, by which he may be in any way prejudiced. These are ancient buildings, or those which have been erected upon ancient foundations, and which, by prescription, are entitled to the special privilege of being exempted from the consequences of the spirit of reform operating upon the owners of the adjoining lots; and also those which have been granted in their present situation by the owners of such adjacent lots, or by those under whom they have derived their title." It will be seen, therefore, that there is an entire concurrence in principle among all the various classes of cases to which I have referred.

There is one other distinction, having a direct bearing upon this question, not yet adverted to. It is not every species of easement which passes as a matter of course by the conveyance of one of two tenements, or part of a single tenement, by the owner of both or the whole. Easements, or servitudes, are divided by the civil code of France into continuous and discontinuous. Continuous are defined to be those, of which the enjoyment is, or may be, continual, without the necessity of any actual interference by man; as a water-spout, or right to light or air. Discontinuous are those, the enjoyment of which can be had only by the interference of man; as rights of way, or a right to draw water.

Servitudes are also divided, by the same code, into "appa rent" and "non-apparent." The analogy between the common

Lampman v. Milks.

law and the French code, in this respect, would seem to indicate, as suggested by Messrs. Gale & Whately, a common origin. The substance of those divisions may be distinctly traced in the common law cases; and it will be found, that those easements which, according to this classification, are termed discontinuous, pass upon a severance of tenements by the owner only when they are absolutely necessary to the enjoyment of the property conveyed. Gale & Whately, after stating the grounds upon which easements are held to pass in such cases, says: "This reasoning applies to those easements only which are attended by some alteration which is, in its nature, obvious and permanent; or, in technical language, to those easements only which are apparent and continuous; understanding, by apparent signs, not those which must necessarily be seen, but those which may be seen or known, on a careful inspection by a person ordinarily conversant with the subject." (Gale & Whately on Easements, p. 40.)

This distinction may serve to explain a few of the cases, particularly in Massachusetts, which might otherwise seem to be in conflict with the numerous cases which have been cited. In the present case, the servitude was not only permanent, but perfectly obvious and apparent, at the time of the conveyance to the plaintiff, and must, therefore, according to all the authorities, have passed by the deed.

The judgment should, therefore, be reversed, and there should be a new trial, with costs to abide the event.

All the judges concurring,

Judgment reversed, and new trial ordered.

The People v. Bowen,

THE PEOPLE v. BOWEN et al.

The power of the Governor to approve and sign a bill presented to him within ten days previous to the adjournment of the legislature does not cease with the adjournment.

A special act for the incorporation of a gas-light company in the city of New York is not unconstitutional by reason of the existence of a general law (ch. 37 of 1848), for the organization of such companies in any city, village or town. Whether a special act is necessary or not rests wholly in the legislative discretion.

APPEAL from the Supreme Court. Action in the nature of quo warranto against the defendants for assuming to be, and acting as, a corporation, without authority of law. The complaint alleged that the defendants claimed to exercise the franchise under the "act to incorporate the Metropolitan Gas-Light Company of the city of New York." It averred that the act never was a law, because the bill, having passed the Assembly April 5, 1855, and the Senate on the 13th April, 1855, was not signed or approved by the Governor until April 17, 1855— the legislature having adjourned April 14, 1855, and never having again convened during that year. The defendants demurred. The defendants had judgment at special term, sustaining the demurrer. On appeal, this judgment was reversed at general term in the first district, and the defendants appealed to this court.

Upon the argument in the Supreme Court, and in the printed points of the counsel here, it was urged that the act, if unobjectionable as to the manner of its passage, was void upon the ground, among others, that the Constitution specifi cally prohibits the creation of corporations by special act, except in cases where, in the judgment of the legislature, the object cannot be attained under general laws: the general act (ch. 37 of 1848) provides for the incorporation of gas-light companies in any city, village or town of the State, and is to be received

The People v. Bowen.

as an expression of the judgment of the legislature that such general act is adequate for the purpose.

John Slosson and Alexander S. Johnson, for the appellants.

William M. Evarts, for the respondents.

DENIO, J., delivered the opinion of the court:

The provision of the Constitution under consideration seems to me naturally to refer to two classes of cases, namely, to bills in respect to which the two houses of the legislature and the Governor shall agree in sentiment; and, secondly, to those in which they shall differ. In respect to the former class, the provision is extremely brief. After declaring that "every bill which shall have passed the Senate and Assembly shall, before it becomes a law, be presented to the Governor," it adds, “if he approves, he shall sign it;" and this is all which is said respecting bills where there shall be a concurrence on the part of the Governor with the houses. The remainder of the section is devoted exclusively to the consideration of cases in which the Governor shall not approve of bills which have been presented to him on the part of the houses; and the subject of those, in respect to which there has been no difference of opinion, is not again adverted to.

Specific directions are given for the purpose of bringing about a reconsideration, by the Senate and Assembly, of bills to which the Governor shall have objected; and a new scrutiny is required to be had, under which such bills are to become laws, notwithstanding the Governor's objections, provided twothirds of all the members present in each house shall so determine. The case was then to be provided for where the Governor should neglect or refuse to act upon a bill. Such neglect is not to be permitted to thwart the will of the legislature; and the remainder of the section is occupied with a provision to meet that case. It is as follows: "If any bill shall not be returned by the Governor in ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law in