
    James W. Wilkins vs. Nathaniel M. Jewett.
    Suffolk.
    Nov. 17, 18, 1884.
    Feb. 28, 1885.
    Field & Colburn, JJ., absent.
    The Prov. St. of 1692-3 (5 W. & M.) c. 13, § 2, providing that any one building on his own land in Boston might set half his partition wall on his neighbor’s land, and that the neighbor, when he should build, should pay for half of so much of the wall as he should build against, has never been in force in this Commonwealth.
   Morton, C. J.

This is an action to recover one half the cost of a party wall. In 1873, the plaintiff made an agreement with one Matthews, who was then the owner of the equity of redemption of the defendant’s land, that the plaintiff might place one half of the division wall of his house on the defendant’s lot; and that Matthews would pay one half of the cost of the wall when he made use of it.

The defendant’s title is under the foreclosure of a mortgage ' existing at the time this agreement was made. The mortgagee was not a party to the agreement, and it is not contended that the defendant is bound by it. But the plaintiff contends that the defendant is liable by virtue of the Prov. St. of 1692-3 (5 W. & M.) c. 13, entitled, “ An act for building with stone or brick in the town of Boston, and preventing fire.” 1 Prov. Laws (State ed.) 42. This statute provided, in § 2, that “ every person building as aforesaid with brick or stone shall have liberty to set half his partition wall in his neighbor’s ground, so that he leave toothing in the comers of such walls for his neighbor to adjoin unto, who, when he shall build, such neighbor adjoining shall pay for one half of the said partition wall, so far as it shall be built against. And in case of any difference arising, the selectmen shall have power to appoint meet persons to value the same or lay out the line between such neighbors.”

We are of opinion that this provision of the Provincial Statutes was never in force in the Commonwealth of Massachusetts. The Constitution continued in force all laws adopted, used, and approved in the Province, Colony, or State of Massachusetts Bay, and usually practised on in the courts of law, until altered or repealed by the Legislature, “ such parts only excepted as are repugnant to the rights and liberties contained in this Constitution.” Const. Mass. e. 6, art. 6.

J. D. Thomson, for the plaintiff, cited Quinn v. Morse, 130 Mass. 317, 321.

R. D. Smith & G. W. Estabrook, for the defendant.

The provision in question undertakes to deal with private property, and to authorize one man to appropriate and use the property of another without his consent. It assumes to take private property without due process of law, and without compensation. It is repugnant to the fundamental principles declared in the Declaration of Rights, that the property of the subject shall not be appropriated, even for public use, without paying him a reasonable compensation therefor, and that he shall not be deprived of his property but by the judgment of his peers, or the law of the land; and that, in all controversies concerning property, he shall have a right to trial by jury. Declaration of Rights, arts. 10,12,15. Morse v. Stocker, 1 Allen, 150. Forster v. Forster, 129 Mass. 559.

Undoubtedly, the authority of the Legislature, in the exercise of the police power, is very broad. This power is founded upon the principle that any man may be reasonably restrained in the use of his property so as not to injure others. Watertown v. Mayo, 109 Mass. 315, 318. But it does not justify authorizing one man to appropriate and use the property of another without his consent and without adequate compensation.

It is a significant fact, that, since the adoption of the Constitution, no trace can be found of any legislative or judicial sanction of the provisions of the Provincial statute upon which the plaintiff relies. We think it has been regarded as repugnant to the principles of the Constitution, and as of no force. It follows that the plaintiff cannot maintain this action.

Exceptions overruled.  