
    Birkhead v. Ward, Appellant.
    
      Justice of the peace — Jurisdiction—Contract—Title to land — Trespass —Trespass vi et amis — Appeals.
    The legislature in conferring jurisdiction on justices of the peace of causes of action arising from contract, either express or implied, had in view those contracts which arise immediately out of a course of dealing between the parties, and not that sort of contract that arises remotely out of the compact of government.
    
      In an action to recover the cost of repairing a retaining wall which was alleged to belong to defendants, and which had fallen on plaintiff's land, the justice of the peace has no jurisdiction where no express contract is averred by the plaintiff, and there is no implication of a contractual obligation of the defendants to pay for the cost of repairs, which could be enforced by action of assumpsit before the justice. Even if it might be held that such an action was upon a contract, the contract is plainly one “where the title to land or tenements may come into question,” and the justice has no jurisdiction under the act of 1810.
    Where the transcript of a justice of the peace shows that the plaintiff “claims ten dollars and fifty cents, cost of repairing retaining wall belonging to defendants,” the transcript does not show a cause of action ex delicto.
    A justice of the peace has jurisdiction over trespass only where the trespass is vi et armis, and the injury is immediate; his jurisdiction under the act of 1814, did not extend to injuries for the redress of which the action of trespass on the case was the appropriate and exclusive remedy.
    If a justice of the peace has no jurisdiction of the cause of action, either under the act of 1810, or the act of 1814, the common pleas has no jurisdiction thereof on appeal.
    Argued Oct. 11,1907.
    Appeal, No. 139, Oct. T., 1907, by defendants, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1906, No. 1,043, overruling defendants’ demurrer to plaintiff’s statement, in case of Samuel J. Birkhead v. Mary Ward et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Appeal from judgment of justice of the peace,
    The material portion of the transcript of the justice of the peace was as follows:
    Now, September 19, 1906, counsel of both parties appear. Samuel J. Birkhead sworn, claims sum of $10.50 cost of repairing retaining wall belonging to defendants.
    F. S. Cantrell for defendants offered no defense and judgment was publicly given to plaintiff for full amount claimed, $10.50 and costs of suit, $2.50; total amount, $13.00.
    Plaintiff filed a statement in common pleas as follows:
    The above-named plaintiff, the said Samuel J. Birkhead, has owned premises known as No. 223 Cedar street, now Jamestown street, in the twenty-first ward of the city of Philadelphia since the year 1884, and still is the owner thereof. That one James Harper was the owner of the adjoining lot to the northeast of the plaintiff’s premises, and while still the owner of the said adjoining lot, he, the said James Harper, changed the grade of his land so that it became considerably higher than the land of the said plaintiff, and that it was necessary for the said James Harper to erect a retaining wall along the dividing line between the two properties. That James Harper did erect a stone retaining wall along the line of the party fence, the purpose of which was to support the soil of Harper’s land. That soon after erecting such a wall, Harper divided his land into three smaller lots, erecting a house facing on Jamestown street on each lot, and two alleys, one running along the northeast line of the plaintiff’s land into Cedar, now Jamestown street, and the other along the rear of the said three houses, to give them an outlet into Jamestown street. And that all the owners of the said three houses have the free use and privilege of these alleys for the purpose aforesaid and that the plaintiff has no right whatsoever to the use of the alley.
    That the defendants are now the owners in fee of premises No. 229 Jamestown street, which is one of the houses formerly built by Harper, the then owner of the premises. And that the defendants as owners of this house have the free use and privilege of the alley leading into Jamestown street.
    That during the month of June, 1906, the said stone retaining wall which divides the premises of the plaintiff and the aforesaid alley, as well as supports the bed of the alley, fell into the yard of the plaintiff. That he, the said plaintiff, notified the owners of all the premises abutting on or having the use of said alley to repair the wall, and that the defendant refused so to do. That the said plaintiff at his own cost repaired the wall, and that the defendant’s share of the cost of repairing the wall was $10.50, for which amount the plaintiff has made frequent demands to the defendant, and that defendant has refused and neglected to pay the same.
    The court overruled the demurrer and entered judgment for plaintiff.
    
      Error assigned was in overruling demurrer to statement.
    
      February 28, 1908:
    
      Francis S. Cantrell, Jr., with, him Francis S. Cantrell, for appellants.
    — A justice of the peace has no jurisdiction in any case arising out of contract, expressed or implied, where the title to real estate may come in question: Lauchner v. Rex, 20 Pa., 464; Goddard v. McKean, 6 Watts, 337; O’Neill v. McVi'ckar, 21 W. N. C. 496.
    The fact that the case was actually removed from the magistrate’s court to the common pleas by appeal does not give the common pleas jurisdiction if the magistrate did not have jurisdiction: Township of Moreland v. Gordner, 109 Pa. 116.
    
      James Hay Simms, with him Daniel A. Stewart, for appellee.
    —Where the owner of a lot reduces its grade below that of the adjoining owner’s land he must support his neighbor’s, land suitably: Atwater v. Woods, 1 W. N. C. 23; Bell v. Reed, 1 W. N. 0. 70.
    As a general rule, easements impose no personal obligation upon the owner of the servient tenement to do anything — the burden of repairs falls upon the owner of the dominant tenement: Washburn on Easements, 683; Gale on Easements, 528; Pomfret v. Ricroft, 1 Saunders, 321.
    ■ It is the nature of the demand, not merely the form of action in which the summons issues, that determines the - justice’s jurisdiction: Gingrich v. Scheaffer, 16 Pa. Superior Ct. 299.
    Although the action here is in form assumpsit, the action is in substance an action ex delicto, and the practice in action ex delicto should have been followed.
    ■ • The act of March 22, 1814, gave the justice jurisdiction: Lauchner v. Rex, 20 Pa. 464.
   Opinion by

Rice, P. J.,

The legislature in conferring jurisdiction on justices of the .peace of causes of action arising from contract, either express or implied, had in view those contracts which arise immediately out of a course of dealing between the parties, and not that sort of contract that arises remotely out of the compact.of government: Zeigler v. Gram, 13 S. & R. 102; Zell v. Arnold, 2 P. & W. 292; Schaffer v. McNamee, 13 S. & R. 44; Commonwealth v. Reynolds, 17 S. & R. 367; Montgomery v. Poorman, 6 Watts, 384; Ellsworth v. Barstow, 7 Watts, 314; Seitzinger v. Steinberger, 12 Pa. 379; Pittsburg v. Daly, 5 Pa; Superior Ct. 528; Katch v. Benton Coal Co., 19 Pa. Superior Ct. 476. No express contract is averred in plaintiff’s statement of claim; and, recognizing the principle of the foregoing cases, no' implication of a contractual obligation of the defendants to pay to the plaintiff the whole, or such share as the- plaintiff might demand; of the cost of repairing the wall in question,' which could be enforced by action of assumpsit- before a justice of the peace, arose from the facts recited in the statement. And even if by any liberality of construction it might be held that the action was upon a contract, it was plainly a contract “where the title to land or tenements may come in question,” and in that view a justice of the peace would not have jurisdiction under the Act of March 20, 1810, 5 Sm. L; 161.

But it is argued by plaintiff’s counsel that although the action was assumpsit in form, the cause of action was clearly ex delicto. It would require a wide stretch of the imagination to infer this from the transcript of the magistrate, wherein the sole statement of the cause of action is, the plaintiff “claims ten dollars and fifty cents, cost of repairing retaining wall belonging to defendants;” and it must' be borne in.mind that the cause of action, whatever change be made in the pleadings or evidence, cannot be departed from in- the common pleas: Knappenberger v. Roth, 153 Pa. 614; Katch v. Benton Coal Co., 19 Pa. Superior Ct. 476. But assuming that the-cause of action alleged in the statement of claim is the same as that alleged before the magistrate, we cannot assent to the proposition that a cause of action ex delicto is alleged of which justices of the peace have jurisdiction under the Act of March 22, 1814, 6 Sm. L. 182. According to the averments of the statement, the wall was not built by the defendants, nor was it upon or contiguous to the land to which they acquired title after it was built, nor- did it fall upon plaintiff’s land in consequence of anything that the defendants did. Hence the familiar’ illustration of the -force- that will sustain an action of trespass at common law for an act of the defendant upon his own land — that where one lays rubbish so near the plaintiff’s Wall that the necessary or natural consequence is that some of it rolls against the wall, the injury is immediate and trespass is the remedy — is not pertinent to the facts of the present case. Moreover, the utmost extent of the plaintiff’s claim, giving his statement every possible intendment, is that as the wall supported an alley which the defendants in common with other purchasers from Harper; who built the wall, had a right to use, it was the joint and several duty of the defendants and the owners of the other lots to keep it in proper repair, and as it fell upon the plaintiff’s land it was their duty to restore it to its former condition, and, failing in that after notice, to pay to him in proper proportions the cost that he was put to in doing that which they ought to have done. It is well settled that the action of trespass for the recovery of damages for injury done or committed on real or personal estate, of which justices of the peace were given jurisdiction by the act of 1814, was the action of trespass vi et armis, where the injury is immediate; their jurisdiction did not extend to injuries for the redress of which the action of trespass on the case was the appropriate and exclusive remedy: Hobbs v. Geiss, 13 S. & R. 417; Gingrich v. Sheaffer, 16 Pa. Superior Ct. 299; Township of Moreland v. Gordner, 109 Pa. 116. The Act of May 25, 1887, P. L. 271, which abolished the distinction theretofore existing between trespass vi et armis and trespass on the case, so far as relates to procedure,” did not extend the jurisdiction of justices of the peace to causes of action not theretofore embraced therein. Whether an action of trespass on the case to recover damages for the breach of a duty arising out of the circumstances could be maintained by plaintiff upon proof of the facts alleged in the statement of claim, need not be determined. It is sufficient to say, that by no construction of the statement, no matter how liberal, can the conclusion be reached that the cause of action averred therein — the matter for which the action' was brought — was cognizable in the common-law action of trespass vi et armis.

As the magistrate did not have jurisdiction of the cause of action, either under the act of 181.0 or the act of 1814, the common pleas had not jurisdiction thereof on appeal: Township of Moreland v. Gordner, 109 Pa. 116; Katch v. Benton Coal Co., 19 Pa. Superior Ct. 476.

The judgment is reversed and judgment is now directed for the defendants upon the demurrer.  