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tion considered in the opinion was whether | dation, and raise the wall higher on his own there was any evidence that the plaintiff land. Matts v. Hawkins, 5 Taunt, 20, has owned to the middle of the wall. It is said been cited as deciding that one owner of a of that case in Quinn v. Morse, 130 Mass. party-wall can lawfully take down an addi317, 322, that "so much of the wall as was tion built upon it by the other owner. But carried up by the defendant on the plaintiff's this is expressly decided under the building land was not as wide as the original wall, act, (14 Geo. III., c. 78,) which regulated the nor was its face toward the plaintiff's land rights of owners. We have seen nothing in parallel with the center line of that wall, and the English cases-such as Cubitt v. Porter, the defendant did not rely on any right to 8 Barn. & C. 257; Wiltshire v. Sidford, 1 carry up a party-wall upon the plaintiff's Man. & R. 404; Stedman v. Smith, 8 El. & Bl. land, but on the plaintiff's want of title in 1; and Watson v. Gray, L. R. 14 Ch. Div. 192, the land itself." Quinn v. Morse, ubi supra, Quinn v. Morse, ubi supra, in which owners of a party-wall are called was a bill in equity to restrain the defendant tenants in common, and which decide that from building up a partition wall between tenancy in a party-wall has some of the qualihim and the plaintiff. The plaintiff had ties of tenancy in common, which suggests conveyed the estate to defendant's boundary that one owner of a party- wall for the lateral on the middle of the partition wall. This support of buildings can have partition of sale was in pursuance of an agreement by the wall, or cannot carry it up higher than it which the defendant agreed to pay to the may originally be built for the purpose of plaintiff for half of the wall what it was using it as the wall of his building. The worth to the defendant for building a store limitation upon the right of each owner to on the land. The court say that the inten- use the wall as the lateral wall of such house tion of the plaintiff that the wall should be a as he may desire to erect is that he shall not 'party-wall, which the defendant would have impair the value of the wall to the other a right to carry up in building his store, was owner. If one owner carries up the wall, manifested by the agreement. The agree- the addition becomes part of the party-wall, ment was only to sell one-half of the wall for and the owners have equal rights in it, and what it should be worth in building a store. the value of the wall to either owner cannot The right to carry up the wall seems to have be thereby impaired; but neither owner has been inferred from the intention in the agree- a right to so use the wall as to weaken or ment that it should be a party-wall. In Mc- injure it. Phillips v. Bordman, ubi supra. Laughlin v. Cecconi, 141 Mass. 252, 5 N. E. The judge who heard the case found that the Rep. 261, the whole wall was on the plain- wall was not insecure, and did not render tiff's land, and belonged to him, and no ques- the plaintiff's house insecure, and it does not tion in regard to party-walls arose. Brooks appear that in any particular the new erecv. Curtis, 50 N. Y. 639, is directly in point, tion impairs the value of the old wall to the and decides that one owner of a party-wall | plaintiff. has a right to build it up. In Partridge v. The plaintiff claims that he can take adGilbert, ubi supra, in which it was decided vantage in this suit of the violation by dethat one owner had a right to take down and fendant of St. 1885, c. 374, and of ordinances rebuild a ruinous party-wall, the wall was of the city of Boston, by building up the wall rebuilt higher than before. The party re- without a permit from the inspector of building was held not liable. It seems well buildings, and by making the wall of less settled that one owner of a party-wall has a thickness than required by the statute and right to take down and rebuild it when ruin- ordinance. But these were not intended, as ous. In Campbell v. Mesier, 4 Johns. Ch. was the English statute before referred to, 334, Chancellor KENT decided that one owner to regulate the rights of the parties between of a party-wall, who had rebuilt it, could re- themselves, but for the public protection and cover contribution from the other owner. In security. The statute prescribes penalties Bank v. Stokes, L. R. 9 Ch. Div. 68, it was said for its violation, and provides for its enforcethat one owner of a party-wall, where the ment by proceedings in equity by the inmetropolitan building act did not apply, had spectors of buildings. We do not think that a right to lower the foundation so as to give the plaintiff can maintain any suit against him a sub-basement. In Field v. Leiter, 6 the defendant merely on the ground that the N. E. Rep. 877, the wall was built by the wall was erected contrary to the provisions plaintiff, one-half on adjoining land. De- of the statute or of the ordinance. He must fendant bought the adjoining land, and an at least show some damage or detriment to agreement was made between the parties by himself in consequence. None is shown. which the defendant might use the wall as a The old wall cannot be affected by the statparty-wall for his store, 10 stories high, with ute. The fact that the new erection is a the right to add to the height of it; the de-party-wall does not expose the plaintiff to fendant agreeing to strengthen the wall and foundation by necessary additions thereto on his own side. It was held that defendant had a right to make necessary additions to the foundation on the plaintiff's side. Eno v. Del Vecchio, 4 Duer, 53, decided that one owner might underpin and deepen the foun

the animadversion of the law, or to any detriment in respect of the wall. The worst that could happen to him would be that it should be taken down. We think that, as between the owners, Edwards had a right to carry up the wall, leaving the old part of the wall intact and secure. If the manner in

which he did this was in violation of the | the respondents objected that this cause did statute, that fact does not give to the plaintiff the right to have the wall taken down. Bill dismissed.

(149 Mass. 550)

CARLETON et al. v. RUGG et al.
(Supreme Judicial Court of Massachusetts.
Essex. Sept. 3, 1889.)
ABATEMENT OF LIQUOR NUISANCE- CONSTITU-
TIONAL LAW-INJUNCTION.

not come within the class of equity cases which, in the exercise of a sound discretion, call for a preliminary injunction, and requested the justice to refuse a preliminary injunction. The respondents requested a ruling that chapter 380 of the Acts of 1887 was unconstitutional, but the request was denied by the justice, who ruled that the statute was constitutional. An interlocutory decree ordering a preliminary injunction was made. 1. St. Mass. 1887, c. 380, § 1, providing that the The justice reported the questions raised by supreme judicial court and superior court shall have jurisdiction in equity on information filed by the respondents for the opinion of the court, the district attorney for the district, or on petition having ordered a stay of all further proceedof at least 10 legal voters of any town or city, set-ings. The questions reported for the opinion ting forth that a building is used for the illegal sale of intoxicating liquors, to enjoin or abate the of the court are-First, whether chapter 380 same as a common nuisance, is not in violation of of the Acts of 1887 is constitutional; second, declaration of rights, art. 12, providing that no man whether, upon the facts stated in this report, shall be deprived of his property, immunities, or the petition was signed as required by that privileges "but by the judgment of his peers or the law of the land." FIELD, DEVENS, and WILLIAM chapter; third, whether, upon the facts statALLEN, JJ., dissenting. ed in this report, it was within the power of 2. Where on an application for an injunction the justice of this court, in the exercise of his to abate a nuisance respondents concede facts which, if established at the final hearing, would re-discretion, to order a preliminary injunction. quire an injunction to issue, the presiding judge, W. H. Moody, for petitioners. E. B. Fulin his discretion, can order a preliminary injunc- ler, for respondents.

tion.

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KNOWLTON, J. St. 1887, c. 380, § 1, is as follows: "The supreme judicial court and superior court shall have jurisdiction in equity, upon information filed by the district attorney for the district, or upon the petition of not less than ten legal voters of any town or city, setting forth the fact that any building, place, or tenement therein is resorted to for prostitution, lewdness, or illegal gaming, or is used for the illegal keeping or sale of intoxicating liquors, to restrain, enjoin, or abate the same as a common nuisance, and an injunction for such purpose may be issued by any justice of either of said courts."

The first question reported for our decision is whether this statute is constitutional. The respondents contend that it is in conflict with article 12 of the declaration of rights, which provides that "no subject shall be arrested, imprisoned, despoiled or deprived of his property, immunities, or privileges *** but by the judgment of his peers or the law of the land." The right of the legislature, in the exercise of the police power of the commonwealth, to pass laws regulating the sale of intoxicating liquors, or absolutely prohibiting it, except for medicinal, mechanical or chemical purposes, has been repeatedly asserted in able and elaborate opinions of this court and of the supreme court of the United States, which cover every question that can

This cause was a petition drawn under the provision of chapter 380 of the Acts of 1887, purporting to be signed by 10 legal voters of the city of Haverhill. The cause came on to be heard on a motion by the counsel for the petitioners for a preliminary injunction. The respondents, for the purposes of the hearing, admitted that the allegations in the petition were true, except as set forth below. The petition was signed by nine legal voters of the city of Haverhill, and the tenth signature was as follows, to-wit, "A. M. Allen." It was admitted by the petitioners that the name “A. M. Allen" does not appear upon the official list of qualified voters, or upon the register of voters kept by the registrars of Haverhill. The petitioners, in order to show that "A. M. Allen" was a legal voter of the city of Haverhill, were prepared and offered to prove that one "Augustine M. Allen" was a legal voter of the city of Haverhill, and that the said Augustine M. Allen was the person who signed the petition by the signature "A. M. Allen." The justice ruled that said evidence was admissible, and overruled the objection of the respondents, whereupon the re-fairly be raised under the constitution of spondents, for the purposes of the hearing, Massachusetts or of the United States. Fishadmitted that the said Augustine M. Allen er v. McGirr, 1 Gray, 1; License Cases, 5 was a legal voter of the city of Haverhill, and How. 504; Bartemeyer v. Iowa, 18 Wall. 129; that the said Augustine M. Allen was the Beer Co. v. Massachusetts, 97 U. S. 25; Mugperson who signed the petition by the signa- ler v. Kansas, 123 U. S. 623, 8 Sup. Ct. Rep. ture "A. M. Allen." There was no evidence 273; Com. v. Intoxicating Liquors, 115 Mass. or claim on the part of the petitioners that 153. We do not understand the respondents the petitioners, or any one of them, would to contend that the provisions of Pub. St. c. suffer any damage or injury by the continuance of the alleged nuisance beyond that common to all law-abiding citizens, whereupon

100, which regulate the sale of intoxicating liquors, or those of Pub. St. c. 101, § 6, which declare that "all buildings, places, or

tenements * * * used for the illegal | bar. In the law of Kansas, in relation to keeping or sale of intoxicating liquors shall nuisances of the kind we are considering, is be deemed common nuisances," are uncon- this language: "The attorney general, counstitutional; but the argument is that by a ty attorney, or any citizen of the county where process in equity, for the abatement of an such nuisance exists or is kept or is mainalleged common nuisance of the kind named tained, may maintain an action in the name of in this statute, they are liable to be deprived the state to abate and perpetually enjoin the of their property, immunities, and privileges same. The injunction shall be granted at the otherwise than by the judgment of their commencement of the action, and no bond peers or the law of the land. The fallacy of shall be required." The fallacy of shall be required." Act Kan. 1881, § 13, as the argument lies in part in disregarding the amended by act 1885. Then follow provisions distinction between a proceeding to abate a for punishing disobedience of an injunction, nuisance, which looks only to the property as for a contempt. The defendants were the that in the use made of it constitutes the owners of a brewery, which was built before nuisance, and a proceeding to punish an of the passage of the statute, and was worth fender for the crime of maintaining a nui- about $10,000 if it could be used for brewing sance. These two proceedings are entirely beer, but was of little value for any other use. unlike. The latter is conducted under the Under the law a building so used was a provisions of the criminal law, and deals only nuisance. A suit in equity was brought unwith the person who has violated the law. der the statute, alleging that the defendants' The former is governed by the rules which building was used for manufacturing intoxirelate to property, and its only connection cating liquor, and praying that it might be with persons is through property in which abated as a nuisance. The defendants conthey may be interested. That which is de- tended that the statute, if enforced, would clared by a valid statute to be a nuisance is abridge their privileges and immunities, and deemed in law to be a nuisance in fact, and deprive them of their property, without due should be dealt with as such. The people, process of law, and in violation of the fourspeaking through their representatives, have teenth amendment of the constitution of the proclaimed it to be offensive and injurious to United States. But in a very elaborate opinthe public, and the law will not tolerate it. ion the court held otherwise, and sustained The fact that keeping a nuisance is a crime the constitutionality of the law in every pardoes not deprive a court of equity of the ticular. The statute made no provision for power to abate the nuisance. Attorney Gen- a trial by jury, and it seems that under the eral v. Hunter, 1 Dev. Eq. 12; People v. constitution of Kansas parties are entitled to City of St. Louis, 5 Gilman, 351; Ewell v. a trial in that mode in all cases in which that Greenwood, 26 Iowa, 377; Minke v. Hope- had been the method of trial prior to the adopman, 87 Ill. 450. Apart from the method tion of the constitution. The court held that provided for instituting proceedings, the stat- a proceeding in equity to abate a nuisance ute under consideration merely says that without such a trial was "due process of law," courts of equity shall have jurisdiction of because it had not been the custom to try this kind of public nuisances as they have of such cases to a jury. Similar decisions have others. It authorizes the making of any been made in Iowa and in Kansas. Littlereasonable order or the issue of any proper ton v. Fritz, 65 Iowa, 488, 22 N. W. Rep. process adapted to the abatement or preven- 641; State v. Crawford, 28 Kan. 726. tion of the nuisance; and there can be no our state the right to proceed in equity to doubt of the constitutional right of the leg-abate public nuisances, and to destroy priislature to prescribe the agency to represent vate property in the exercise of the police the public in setting the law in motion. That power, where necessary for the protection of may as well be the district attorney of the the public, has been recognized in many district or 10 legal voters of the town where cases. District Attorney v. Railroad Co., 16 the nuisance is alleged to exist as the at- Gray, 242; Belcher v. Farrar, 8 Allen, 325; torney general, if the legislature so deter-Winthrop v. Farrar, 11 Allen, 398; Attorney mines. Littleton v. Fritz, 65 Iowa, 488, 22 N. W. Rep. 641; Kansas v. Ziebold, 123 U. S. 623, 8 Sup. Ct. Rep. 273. It is urged that this statute makes no provision for a trial by jury. This objection applies as well to nearly all our legislation giving jurisdiction in equity. Pub. St. c. 151, § 27, provides for a trial by jury in every case in equity in which that mode of trial is deemed by the court to be desirable. In cases in equity in which defendants have a constitutional right to such a trial, the courts secure it to them. Powers v. Raymond, 137 Mass. 483. In the very recent case of Kansas v. Ziebold, ubi supra, the supreme court of the United States fully considered all the constitutional questions which arise in the case at

In

General v. Ice Co., 104 Mass. 239; Watertown v. Mayo, 109 Mass. 315; Bancroft v. Cambridge, 126 Mass. 438. We are of opinion that the statute is constitutional.

It was competent for the petitioners to show that the person who signed the petition by the name "A. M. Allen" was Augustine M. Allen, who was a legal voter of the city of Haverhill. Com. v. Hamilton, 15 Gray, 480. The third question relates to the power of the justice, in the exercise of his discretion, to order a preliminary injunction. The principles by which the court should be governed in dealing with an application for a preliminary injunction under this statute are the same as apply to proceedings to enjoin other kinds of public nuisances. The 10 legal

voters who unite in a petition represent the property, courts, in determining whether to public as does the attorney general in other issue a preliminary injunction, should look similar cases. The fact that no one of them, to the nature of the building or tenement, in the present case, would suffer any damage and the use to which it is being put and is by the continuance of the nuisance beyond likely to be put, to see whether the continuthat common to all law-abiding citizens, was ance of it will be seriously detrimental to the immaterial. In all suits in equity, before a community, before the rights of the parties case can be regularly heard upon its merits, can be finally determined. We can imagine the defendant must have reasonable time a case in which a tenement might be alleged prescribed by the rule in which to answer. Is- to be a nuisance by reason of its use for its sues, whether of law or of fact, must be unlawful sale of intoxicating liquors for memade up, and an opportunity given to pre-dicinal purposes. Under the rules of practice pare for the hearing. An application for a in equity it can hardly be contended that the preliminary injunction rests upon the alleged court would be called upon to issue an inexistence of an emergency or of a special junction in such a case until the existence of reason for an order before the case can be the nuisance had been established at the final regularly heard; and it is only to prevent hearing. On the other hand, we can imagine serious injury, for which there is no other a case in which a tenement used for the illecomplete and adequate remedy, that a court gal sale of intoxicating liquors might be so is justified in interfering with the conduct of situated and so kept that every day's continpersons, or the use of property, before trial. uance of it would inflict serious injury upon To properly determine what shall be done in the people in its vicinity. In such a suit a cases of this kind involves an exercise of court might well take measures to abate the sound discretion by the presiding judge, who nuisance upon a preliminary hearing. should look to the interests of the petitioners, and of the public whom they represent, and should at the same time remember that, without good reason, a defendant is not to be dealt with ex parte, nor forced to trial before the case is ripe for hearing. It should be borne in mind that this is not a statute which professes to look to the conduct of persons to prevent the commission of crime. If it were, it would have no legitimate place in our jurisprudence. There is no doubt that, in hearings upon applications for preliminary injunctions and orders pendente lite in suits in equity, and in proceedings for the punishment of contempt of court, the parties have no constitutional right to a trial by jury. It would be an anomalous proceeding for a court to issue an injunction against a defendant's committing the crime of larceny, or of selling intoxicating liquors, with a view to punish as disobedience of the injunction and contempt of court the same act which was before punishable as a crime. If that could be done an accused person, through a mere change of form in the proceeding, might be punished for a crime without a trial by jury, and in violation of both our national and state constitutions. There would be strong ground for contending that a statute which should attempt to authorize such a method of preventing or punishing ordinary crimes would be unconstitutional. Indeed, even where a plaintiff seeks the aid of a court of equity to protect him from irreparable injury through the threatened publication of a libel, or the commission of some other like crime, the courts decline to interfere. Brandreth v. Lance, 8 Paige, 24; Fleming v. Newton, 1 H. L. Cas. 363-376; Diatite Co. v. Manufacturing Co., 114 Mass. 69. In proceeding under this statute, not for the purpose of forbidding by order a personal act which the law forbids under the penalty of fine and imprisonment, but for the purpose of protecting the community from a harmful use of

In the case at bar the respondents, for the purposes of the hearing, admitted that the allegations of the petition were true. By this admission the principal reason for not granting an injunction before the final hearing was eliminated from the case. Usually there is a question of fact in dispute, of a kind which, at the request of either party, is commonly submitted to a jury. Indeed, it can be argued with much force, but whether effectually it is unnecessary now to decide, that upon this question as to the use made of the property the parties at the hearing, upon the merits, have a constitutional right to a trial by jury. See Merchants' Nat. Bank v. Moulton, 143 Mass. 543, 10 N. E. Rep. 251. The respondents having conceded facts which, if proved at the final hearing, will require a decree in favor of the petitioners, it was within the power of the presiding judge, in the exercise of his discretion, to order a preliminary injunction. Injunction to issue.

FIELD, J., (dissenting.) In considering the constitutionality of St. 1887, c. 380, it is first necessary to determine its meaning, because a statute must be carried into effect, if at all, according to the intention of the legislature, as expressed in it. Fisher v. McGirr, 1 Gray, 1, 22. The present case raises the question of the constitutionality of St. 1887. c. 380, only so far as it relates to the use of a building, place, or tenement for the illegal keeping or illegal sale of intoxicating liquors. The statute plainly provides for a public prosecution, to be instituted either by a district attorney or by 10 or more legal voters, for the purpose of preventing a violation of the statutes regulating the sale of intoxicating liquors. The statute was not enacted for the protection of private rights. In proceedings under it it is immaterial whether the use makes the building, place, or tenement dangerous or offensive to the neighbors or to the inhabitants generally. The keeping or

sale of intoxicating liquors may be so secret | be beyond the control of the district attorney, as to be unknown to them, or they may de- depends wholly upon the proceedings that sire that intoxicating liquors be kept or sold may be taken for punishing violations of inthere, yet these facts would not be a defense, junctions. There can be no decree for dambecause the statute is enacted for the purpose ages, or for a penalty, or directly affecting the of enforcing the public policy of the common- title or condition of property. It is not conwealth in regard to the keeping and sale of tended that the statute was intended to seintoxicating liquors. The sale or keeping cure to a respondent a trial by jury in a hearfor sale of intoxicating liquors, in violation ing upon a charge that he had violated an of law, may be detrimental to the morals of injunction issued by the court, and it is the a community, but the place where they are well-known practice of courts of equity to sold or kept is not thereby commonly rendered hear and determine such a charge without a physically dangerous to the health or safety, jury. If the proceedings under the statute or offensive to the senses, of the persons who are to follow the analogy of bills in equity, dwell near it, and the statute applies to any brought to enjoin the creation or continuance. keeping of intoxicating liquors in any par- of a private nuisance, it must have been the ticular building, place, or tenement with the intention of the legislature that it should be intention of illegally selling them anywhere within the power of a justice of either of the within the commonwealth. Com. v. Gillon, courts mentioned to issue an interlocutory 148 Mass. 15, 18 N. E. Rep. 584. The juris-injunction, and to punish the respondent if diction given by the statute is jurisdiction in he violated it; and it is well known that equity; the only fact required to be alleged courts of equity do not try applications for an in the information is that the building, place, interlocutory injunction with the aid of a or tenement described "is used for the illegal jury. Indeed, there are many indications keeping or sale of intoxicating liquors;" the that the principal reason why the statute was only remedy given is "to restrain, enjoin, or passed was to avoid a trial by jury, and, if abate the same as a common nuisance;" and the information is not regarded as essentially the only process provided is that "an injunc- a criminal prosecution, it is difficult to see tion for such purpose may be issued by any how the respondent is entitled as of right to justice of either" the supreme judicial court a trial by jury at any stage of the proceedings, or the superior court. There is no provision unless the suit is considered as involving a for the destruction or the forfeiture of the controversy concerning property within the building, place, or tenement, or of any other meaning of article 15 of the declaration of property, or for shutting up the building or rights; but, as no decree can be entered which tenement, or for excluding any person from directly affects property, it may be doubted the possession; and it can hardly be contended whether it can be considered as involving that any process under this statute could be is-such a controversy, and the proceeding was sued for destroying a building or tenement, or for changing the title or physical condition of a building, place, or tenement. Buildings, places, and tenements used for the purposes described in this statute have for many years been declared to be common nuisances by other provisions of statute, and it has never been considered that they could be destroyed except in cases falling within the express authority given by Pub. St. c. 101, §§ 6-10.

The injunction issued in this case, and probably the only injunction that could be issued, is one enjoining the respondent from using, or permitting to be used, the building, place, or tenement for the illegal keeping or sale of intoxicating liquors. The Public Statutes prohibit such use as a crime, and the only effect of the injunction is to subject the respondent to the process used for punishing persons guilty of violating injunctions, in addition to, or in substitution for, criminal process. The legislature apparently thought that a remedy in equity would be more speedy or more certain or more efficient than that by complaint or indictment. The issuing of the injunction of itself adds nothing to the prohibition of the statutes, but the intention plainly is to call into use the peculiar process employed by courts of equity in punishing persons guilty of willful violations of injunctions. The efficacy of the statute, apart from the fact that the prosecution may

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not intended for the vindication of private rights of property, whether belonging to one or to many persons. The fact that a court may grant a trial by jury upon the issue whether the building, place, or tenement was used by the respondent, at the time the information was filed, for the illegal keeping or sale of intoxicating liquors, does not remove the difficulty; for a finding upon this question is not followed by any decree which directly affects the person of the defendant or the condition of the property. A finding upon this question is a preliminary to the issuing of a perpetual injunction, and the punishment is imposed when the defendant has been found guilty of violating the injunction. Property is often forfeited as a punishment for crime, and suits instituted for that purpose are regarded as criminal or penal. Property is sometimes destroyed because its nature or condition is such as to make it dangerous or offensive to the community, and suits for the destruction of such property are not necessarily either criminal or penal. I think there is no doubt that, if the proceedings under this statute are intended to prevent the repeated commission of a criminal act by the punishment or the threatened punishment of a person charged with having committed it, the procedure provided by the statute is inconsistent with article 12 of the declaration of rights. Fisher

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