
    Godshall against Mariam.
    
      Wednesday, April 6th.
    The regulation of a lot by regulators under the act of 9th March 1771, from which no appeal is entered to the next Common Pleas, is conclusive as to the foundations and party walls of buildings erected conformably thereto; but not so as to the lines of the lot upon which there are no buildings.
    THIS was an action of trespass to recover damages from the defendant for breaking and entering the plaintiff’s close, and removing live pannels of fence. The defendant pleaded-not guilty, and liberum tenementum. Upon the trial before the Chief Justice at Nisi Prius in June 1806, the plaintiff proved a regular title to a lot of twenty feet in breadth by one hundred and ten feet in depth, on Third street in the Northern Liberties, which lot was stated in a deed bearing date the 15th November 1794, from Dr. John Redman to the person under whom the plaintiff claimed, to be “ bounded northward “ by a thirty five feet corner lot, granted or intended to be “ granted by the said John Redman to Adam LoganP tie also shewed that his lot was duly regulated on the 25th July 1798, by the proper officers under the act of 9th March 1771, by marking the lines in front and in rear, and putting stakes at all the corners; that the owner of the Northern lot had knowledge of the regulation; that there had been no appeal from any order of the regulators; that the plaintiff had built a brick house conformably with the regulation, twenty feet in front and about twenty five feet deep, and that he erected the fence in a line with the side of his house. The trespass complained of, was the defendant’s taking up this fence and setting it down in the plaintiff’s lot, about two feet six inches within the line of regulation.
    The defendant shewed title to the before mentioned corner lot of thirty five feet, under a deed from Redman to Logan of 15th November 1794, in which it was said to be bounded “ north-ii ward by Coates’s street.” He then gave in evidence a regulation of the cross streets in the Northern Liberties, commenced before the regulation of the plaintiff’s lot, but not published and confirmed until the 5th August 1799. This regulation had no connexion with the regulation of lots, but was a distinct thing, authorized by an act of 17th April 1795; and the surveyors who performed the duty, put the line c,f Coates’s street *n place about two feet six inches southward of the accustomed line. In consequence of this the defendant could not have his complement of ground without interfering with the regulation of the plaintiff’s lot; and he therefore moved the fence. There was also some evidence that the regulators themselves had since questioned their own regulation of Gods hall’s lot, as being founded on a mistake of the street line; and that there was more grouhcl to the southward of the plaintiff, than was necessary to satisfy all claims.
    Upon these facts it was argued for the plaintiff, that the walls of his house, and the lines of his lot, were conclusively fixed by the regulation, and tbat the survey of Coates’s street not being completed until after the regulation, could make no impression on the cause: but that at all events, that survey did not, and was not intended to, ascertain where the true line of Coates’s street was, but to fix a line for its future course. That therefore, for any thing that appeared, the regulation was right. For the defendant it was said, that the regulation, so far as it respected the unbuilt part of the lot, was not conclusive, and that as the plaintiff’s lot was bounded by a thirty five feet corner lot, the whole question was, where the corner of Coates’s street was, which the survey conclusively shewed. The Chief Justice charged the jury that there could be no doubt that the walls of the plaintiff’s house were fixed irrevocably in 1798, by a regulation from which there was no appeal, but he would reserve the question xuhether the lines of the lot xvere also fixed. That the jury might then consider them as not fixedj and if so, he thought the survey was strong evidence to shew where the line of Coates’s street was, and where the defendant’s lot began. The jury however found a verdict for the plaintiff.
    A motion for a new trial was made by the defendant’s counsel, because the verdict was against law and evidence; and this motion and the point reserved were now argued by Binney for the plaintiff, and by Milnor and Hopkinson for the defendants; but the argument was almost entirely confined to the conclusive nature of the regulation.
   Tilghman C. J.

delivered the opinion of the court.

The only question now to be decided by the court is, whether the regulation of the lines of a lot in the Northern Liberties of the city of Philadelphia, made by virtue of the act entitled “ An act for appointing regulators in the southern parts of the “ Northern Liberties of the city of Philadelphia, and for other “ purposes therein mentioned,” is conclusive on the parties, not only as to that part of the lot on which buildings are erected, but throughout the whole extent of it.

The act, after reciting in the preamble, that great inconvenience had ensued for want of surveyors or regulators to lay out the proper gutters, channels, and conduits for carrying off the waters, “ and to set out the lots and to regulate the walls to be built between party and party f goes on to enact, “ that “ the regulators shall upon application made to them have full “ power and authority to regulate and lay out the proper gut- “ ters, channels and conduits for the carrying off the waters “ within the limits of the said described piece of land, and to “ enter upon the lands of any person or persons in order to set out the foundations, and to regulate the walls to be built “ between party and party as to the breadth and thickness “ thereof, which foundations shall be equally laid on the lands “ of the persons between whom such party wall is to be made.” &c. &c.

The third section inflicts a penalty on persons who shall begin to lay the foundation “ of any party wall, or any xvall fronting on any of the streets,” before the same is viewed and' directed by the regulators.

The fourth section gives an appeal to the justices of the next county Court of Common Pleas, in case either party, between whom such foundation or party xvall is to be made, shall conceive himself aggrieved by any order or direction of the regulators; and the justices are forthwith to summon a jury and proceed to determine the matter in dispute, according to the course of the common law. The fifth section ascertains the fee to be paid to the regulators for their trouble, “ in setting out and regulating the lines of each lot.''''

These are the only parts of the law material in the present question. It appears then that although the preamble speaks of setting out the lots, yet the enacting part of the law gives no power to the regulators to enter on any man’s land for any other purpose than that of regulating the foundations and party walls of buildings; consequently they have no power to enter at all for the bare purpose of ascertaining the lines of a lot, nor is there any appeal given but in case of a building. There is’great reason why the decision of the regulators, unappealed from, should be conclusive as to the building; because if it were not, the walls which were built under the authoi-ity of officers, whom the party was obliged to employ, might be afterwards pulled down. This would be a grievance too ruinous to be submitted to, and cannot be intended to be the meaning of the law. Indeed considerable inconvenience may result from questioning the boundaries in any part of the lot, after a house has been built. And if it was in the power of the court to make or alter the law, they would prevent that inconvenience by directing that the lines fixed by the regulators should be conclusive. But in a case where valuable property is to be affected, they are not authorized to draw inferences from slight expressions, not warranted by the principal parts of the law. No express power is given to fix the lines of the lot, when there is no party wall. But it is objected that a fee is given for setting out and regu- lating the lines of each lot” The answer is, that this cannot enlarge the power given before, but must be construed by reference to that power; that is to’say, the fee is given for setting out and regulating the lines, so far as is necessary for the purpose of regulating the front and party walls; and it is evident that part or the whole of two lines at least, must be set out and regulated in order to do this. This construction renders the whole law consistent, without doing violence to any part of it. I am therefore of opinion that the parties are not concluded by the regulation made in 'that part of the lot, which lies back of the house. There must of course be a new trial, because the. court suppose that the jury found their verdict under an opinion that the act of the regulators was conclusive. The weight oí the evidence was against the regulation. On the second trial, the parties knowing precisely on what point the cause will turn, will come better prepared to contest the real merits, that is, the true location of Coates's street; for that will be the only matter in dispute.

New Trial granted. 
      
      
        9th March 1771, 1 St. Laws. 549.
     