properties were afterwards purchased separately by the same person; it was held that the easement was not extinguished by the mere unity of title which revived upon subsequent severance. In Keiffer vs. Imhoff, the court say the right remains as before, under a higher title, and upon a subsequent severance of the estate by alienation of a part of it, the alienee becomes entitled to all the continuous and apparent easements which had been used by the owner during the unity of the estate. In the case stated in the bill the easement was the party wall laid by Beaver on the land of the adjoining owner on the west, and which also gave to that owner an easement upon the land of plaintiff, consisting of the right to use the portion of the wall which had been erected on his own ground. This servitude was open and manifest so that a purchaser would buy with notice: to view the land was sufficient to put him on the inquiry. When plaintiff bought the vacant lot, he bought the easement with it, and when he sold to Maria L. Rogers, she took with the plainest constructive notice of the existence of the servitude, and when defendant took title from Miss Rogers, the notice was equally binding on him, that half of the party wall was laid upon her land. This, we think, is conclusive of the question at issue between the parties, and requires us to hold, that the wall is a party wall, that as such it never was lost to plaintiff, that though the easement was suspended during his ownership of both properties, the right remained, and upon severance of title, revived in full force, so that when he sold the house and lot on the east to Tully, it was competent for him to reserve the party wall to himself.

To the other points made by the defendant, the reply is: That mere notice that a third party claims a party wall, unsupported by proof of title, will not prevent an injunction to restrain its use. An injunction will be granted to prevent the further use of, or breaking into a party wall, where, without fault or consent of the owner, the first floor of joist had been inserted into it. The act requires that the first builder shall be reimbursed before the next builder shall in any wise use or break into the wall. It is in the alternative, use or break into; the second builder has no more right to use the wall "in any wise," than he has to break into it, without first making compensation. Nor does knowledge that a cellar for an adjoining building is being dug out, amount of itself, to negligence on the part of the owner of the wall.

That we may not be committed to the principle upon which the case rests as it is stated in the bill, we deem it proper to add, that had the wall, when built, been laid wholly on the land of the plaintiff, it could in no proper sense be regarded as a party wall. An owner may build within and upon his own lines as he pleases, subject, of course, to the general principle, that in so doing he does no wrong to his neighbor, and is observant of all legal municipal regulations upon the subject. It requires no act of assembly to empower an owner to build upon his own land; but it is necessary that such authority should be found, as a justification for entering upon the land of an adjoining owner, lay out and build upon it a wall to be used in the construction of a building upon his own lot of ground. This principle is recognized, as it seems to us, beyond all question, in the act of February 24, 1721. Surveyors or regulators are given full power and authority upon application made to them, to enter upon the land of any person or persons, in order to set out the foundations and regulate the walls to be built, as stated in the

act, "between party and party." A man cannot be a party with himself. There must, of necessity, be an adjoiner, whose land is to be used in part, in the construction of a wall by a first builder. The act has still more to say upon this point, "which foundations shall be laid equally upon the lands of the persons, between whom such party wall is to be made." The property and the owners are both in the plural, in this connection, showing an obvious purpose to keep clear the distinction which determines the application of the law, namely, separate owners. For whatever may be said of the use of the word lands, as indicating a division into pieces or lots of ground of a larger lot, the use of the word persons between whom such wall is to be built, shows that it refers to different persons, owning separate pieces of land.

This interpretation of the act of 1721 does not prevent an owner, when he comes to sever his land, and convey it to his different. purchasers, imposing whatever conditions may be agreed upon between himself and his grantee. He may reserve his right to compensation for the use of the wall of a building first erected by himself wholly upon his own land, and whether as between a grantor and grantee, it is called a party wall, or called by any other name, the contract having a sufficient consideration to support it, will be enforced; but where such an agreement is wanting, there can be no claim successfully maintained upon the basis of its being a party wall. This view of the law is supported by the cases decided by the late District Court, of Oat vs. Middleton, and Norris vs. Adams, 2 Miles, 248, 337, and the later case of Doyle vs. Ritter, 6 Philada. Rep. 577, decided in 1868. In the opinion of the court by Hare, P. J., the point is thus stated: When a house is built on a dividing line between two lots owned by the same person, the whole is his, and it is not necessary to consider how much of the building rests on one lot, and how much on the other. What is done is done by virtue of his title, and there is no room for the operation of the statutes, which were only meant to apply where land is owned by different persons, and where it would be a trespass to erect a party wall without an authority in law.

In Pratt vs. Meigs, 2 Parsons' Equity Cases, 302, this distinction is also taken. The main design of the law is said to be for the mutual accommodation of the owners of adjoining lots, where one was about to erect a building where the wall might ultimately prove beneficial to the second builder. Lowrie, C. J., in Roberts vs. Bye, 6 Casey, 375, says: A right to a party wall is a right which an owner of land has to build a division wall partly over his line on the land of another. Upon principle and authority, as well as the clear intent of the act of 1721, we conclude that per se there can be no party wall, which is built wholly on the land of the first builder. We have said this much upon the question, that our understanding of the law may not be misapprehended. The case of the plaintiff is supposed to be supported by Mc Gittigan vs. Evans, 8 Philada. Rep. 264. If the plaintiff rightly interprets Mc Gittigan vs. Evans, we are still compelled to adhere to the view above expressed, which accords with the interpretation we have frequently given to the act of 1721, and which is supported by all the other authorities bearing upon the question.

The motion to dissolve the injunction is refused.

L. R. Fletcher, Esq., for plaintiff. G. Harry Davis, Esq., for defendant.

[Leg. Int., Vol. 32, p. 188.]

MCGLUE vs. THE CITY OF PHILADELPHIA.

By the act of April 21, 1858, it is provided, that no contract shall be binding upon the city of Philadelphia unless an appropriation sufficient to pay the same be previously made by councils. Held, that where an appropriation was made sufficient at the time to pay the contract in full, a subsequent diversion of the same to other objects by the city left the city liable as though such diversion had not been made. It was admitted in the case stated that the original appropriation by councils was sufficient to satisfy the plaintiff's demand.

Opinion delivered May 21, 1875, by

ALLISON, P. J.-The facts which are stated for the opinion of the court present but one question for decision: Is the contract, which was entered into between E. S. McGlue and the city of Philadelphia, a valid and binding contract, to the extent to which an appropriation had previously been made by councils for payment?

It is admitted that on the 18th day of May, 1874, an agreement in writing was entered into by the parties to this action, whereby the plaintiff bound himself to do all work and labor required in completing the earthwork at the storage reservoir, in East Fairmount park, and also to furnish seed of the best quality for seeding the outer slope of the reservoir, for which the defendant agreed to pay the plaintiff the price of eighty cents per cubic yard.

One million three hundred and twenty-five thousand dollars was appropriated by ordinance passed the 6th of November, 1871, for payment of the work; a portion of the unexpended balance of the appropriation which was in the treasury at the time the contract was made had been expended or appropriated by councils for other work when he demanded payment, and the amount then remaining was not sufficient to pay the plaintiff according to the terms of his contract.

The plaintiff claims that he is entitled to have judgment entered in his favor for $58,312.96, which amount, by the certificate of the chief engineer of the water department, is due to him for work done under his contract, between the 16th of September, 1874, and the 21st of December, 1874.

The 5th section of the act of April 21, 1858, P. L. 386, provided, "that no debt or contract hereafter incurred or made shall be binding upon the city of Philadelphia, unless authorized by law or ordinance, and an appropriation sufficient to pay the same be previously made by councils; provided, that persons claiming unauthorized debts or contracts may recover against the person or persons making the same."

This contract was authorized by resolution of the select and common councils of the city, approved by the mayor on the 12th day of May, 1874. It has, therefore, the requisite first mentioned in the 5th section of the act of 1858 to support it. It was authorized by a law of the city, duly passed in the form of a joint resolution, which brings us to the consideration of the only remaining question: Is the contract valid and binding on the city to the extent to which an appropriation had been previously made to pay for the work to be done under it?

We think it is clear, beyond all reasonable question, giving the strictest possible construction to the 5th section of the act, that a con

tractor is entitled to be paid for work done under his agreement to the full amount of a previous appropriation; that he is not responsible for a diversion of a portion of it by councils to other purposes, or to other persous, and, as in this case, which is presented for the decision of the court, more than the amount for which judgment is sought to be recovered against the city, to wit, the sum of $58,312.96, having been appropriated for the construction of the reservoir before the execution of the agreement of the plaintiff with the city, and this, too, beyond the amount which has been paid to him for work done under his contract prior to the 16th day of September last, he is entitled to a judgment in his favor. This would seem to be the construction which councils have given to their agreement with plaintiff. The resolution of May 13 directs the city solicitor to resist and defend the suit brought by Mr. McGlue against the city for alleged work done to the east park reservoir, beyond the amount appropriated for the purpose. If, by the phrase "beyond the amount appropriated for the purpose," councils are to be understood as referring to the unexpended balance of $38,612.83, leaving out of the account the $76,205.80, paid to persons other than the plaintiff, and that this is the extent of their liability to him, we think the view which they take of the question is a mistaken one. A contractor is not bound to look to the action of councils subsequent to making an appropriation; if they carry the money away from him and award it to others, that is a matter which concerns them and not the person with whom they have contracted. He cannot have his rights prejudiced by action of councils, for which he is in no degree responsible, and which he could in no manner control.

It will not be overlooked that all we have said is based upon a conceded application of the 5th section of the act of 1858, to the instance of a contract, made directly by the councils, in the exercise of their law-making power, and not through the agency of the city commissioners or heads of department. If it were necessary to decide whether councils were subject to the 5th section of the act of 1858, it is by no means clear that it is applicable where councils are themselves the contracting party.* It is not necessary to decide the question in this case, because the present claim of the plaintiff has a law of councils to support it, and a previous appropriation sufficient to cover it; and as there is no dispute as to the amount of work done, or as to the manner in which it has been performed, we enter judgment upon the case stated, in favor of the plaintiff, for the sum of fifty-eight thousand three hundred and twelve dollars and ninetysix cents ($58,312.96).

The contract with the plaintiff was not for a round sum; it was an agreement to pay for the work at a fixed price per cubic yard, and although it contemplates the completion of the earthwork of the reservoir by the plaintiff, in conformity with specifications which are made part of the contract, the sum which he will be entitled to claim against the city can only be ascertained by measurement when the work is completed. It may amount to more or less, according to the manner in which the reservoir is constructed. In contracts of this character there is generally contained a clause providing for necessary variations as the

This point has since been expressly decided by the Supreme Court, Tatham's Appeal, 30 P. F. Smith, 470.

work progresses; these variations may consist of omissions, or of additions, so that the sum which the contractor will be entitled to claim is contingent. As a rule, there can, in every case of the fund, be no appropriation of an exact sum in advance for payment of all that will be due to the party who is to perform work or furnish material to the city. A mistake in the amount of the appropriation, of a sum less than should be found requisite to pay all that had been earned under the agreement, would, under this view of the law, relieve the city from liability to pay anything, the section providing, as it does, that no debt or contract shall be binding on the city, unless an appropriation sufficient to pay the same be previously made by councils. This construction of the law would work such manifest injustice, and would be so utterly incapable of a practical application to the wants of the city as to require its rejection, unless we are absolutely shut up to its adoption by the imperative directions of the act, interpreting it not only according to its letter, but by its clear intent as well.

The most that can be claimed under the 5th section is, that a contractor, who undertakes to perform work for which he is to be paid at a fixed price, according to the amount of the work done, shall see that from time to time, as the appropriation is exhausted, if it is less, in the first instance, than is required to pay for everything to be done under it, that councils shall make further appropriation before proceeding to the completion of the work; but even this would not be in strict conformity to the language of the section to which attention has been called, for that looks to a sufficient appropriation before the contract is entered into, and not to appropriations to meet payment as the work progresses. But if this be the correct interpretation of the section, what becomes of a contractor who, as in this instance, and it is by no means an uncommon one, is under a heavy penalty to finish his work by a certain time? This places him between two fires; he must take the risk and go on with his contract, in the absence of an appropriation, or he must assume the other risk of the penalty for delay enforced against him.

William B. Mann, Esq., for plaintiff.

C. H. T. Collis, Esq., for defendant.

[Leg. Int., Vol. 32, p. 208.]

HULSEMAN vs. GRIFFITHS.

In an action for ground-rent the principle that a tenant is estopped from denying his landlord's title has no application.

To such claim a constructive eviction under a paramount title is an answer, although no actual ejectment was brought.

Rule for judgment for want of a sufficient affidavit of defence. Opinion delivered June 5, 1875, by

BIDDLE, J.-This is an action of covenant to recover one year's ground-rent, due April 1, 1875. The affidavit of defence sets out, that before the execution of the ground-rent deed on which this suit is brought, there had been filed on the 14th of September, 1857, within six months after the work was done, a municipal claim against all the lot, subject to the ground-rent, excepting about three feet. That under this claim a sheriff's sale was had, and the purchaser obtained a sheriff's