delivered the opinion of the court, March 17, 1884.
This case Avas tried by both the parties in the court beloAv in a manner that Avas altogether peculiar. We shall deal with-it as it was there presented.
It is sufficient to say, in regard to the first specification of error, that under all the circumstances of the case the court below could not properly have directed a verdict for the defendants. It was a case to submit to the jury.
The second assignment alleges that the court erred in charging that “ The first question for you to settle is, was this a party wall? It appears to be claimed upon both sides that this is a Avail in the nature of a party Avail.”
The defendants below now allege that they did not proceed-upon the theory that the wall in dispute Avas in the nature of a party wall, but that, on the contrary, they contended the wall Avas built over on defendants’ ground, from two to three inches at the alley, and from four .to five inches in the rear,, and in using the wall neither the lintels nor the girders Avere inserted so as to go beyond the line.
There Avas undoubtedly some proof of this, and complaint is made that the court beloAv disregarded it. The court treated the case as. the parties treated it, and if the jury Avere misled by the charge, as is asserted in the third assignment, the court in turn was misled by the parties. If the wall in question Avas a party Avail, either by statute, or the agreement of the *404parties, the defendants would have the right, to úse it upon making.compensation. But to cut into it without having first made compensation would constitute the person doing so a trespasser: Ingles v. Bringhurst, 1 Dallas, 341; Masson’s Appeal, 20 P. F. S., 26. In point of fact the plaintiff contended that,the wall stood on his own ground. This, if true, would give defendants no right to use the wall with or without compensation.: . The defendants alleged, as before stated, that the wall was built over on them two or three inches. This, if true, would have made the plaintiff a trespasser, and he could have been required to take the wall down, or the defendants might perhaps have waived the trespass, and used the wall without compensation. But for some purpose, which to my mind is not clear, the question of the wall being a party wall was brought into the case and produced little save confusion. The defendants, instead of asking an instruction upon the facts, as they now contend them to be, asked the court to charge that if the wall in question was a party wall the plaintiff could not recover. See defendants’ fourth and fifth points. This instruction was very properly refused. Had it been a party wall there would have been no defence. How then can we say that the court erred in submitting to the jury the question, “was this a party wall? ”
■ Not only did the defendants raise this question by their points, but the same thing runs through the testimony. There was a plain attempt on the part of the defendants to establish the party wall theory, and an evident desire , upon the cross-examination of the plaintiff to obtain such an admission. Not, only so, but .on page 48 of the Appendix I find the following: “ Defendant offers in evidence the record of the suit of Reuben Sieger v. Mary E. Brobst, brought to September Term, 1878, No. 23, in the Common Pleas of Lehigh county. Suit was brought September 25, 1878. We offer this, together with plaintiff’s affidavit of claim, and the declaration in the cause, •for the purpose of showing that Mr. Sieger recognized the wall as a party wall, and sought to charge Mary E. Brobst with one half value of the wall as a party wall. , Objected to as incompetent and irrelevant; it is admitted for the purpose of an admission as a party wall.”
■ The defendants have no just ground to complain that the court submitted the case to the jury as they presented it.
' We are in no doubt as to- the liability of Mr. Ritter. He says in his testimony that he put up the building and paid for it. That it was for his daughter’s benefit can make no difference. , The only question is as to the measure of damages. The court.instructed the. jury that they “could go to the extent of the wall used, and compensate the plaintiff.” ,- This *405was as favorable to the defendant as he could expect. Had there been circumstances of aggravation, vindictive damages would have been permitted: Amerw.Longstreth, 10B., 145: There were no such circumstances, and the court very properly confined the jury to compensation.
It was urged, however, that as Mr. Ritter was the builder, and his daughter the owner of the property, nominal damages only could be recovered. This assumes that the only trespass Mr. Ritter could be held for was the cutting of the holes in the wall, and that this did no serious injury. This is a mistake. Making the holes was only a part, and a small part of the trespass. The act complained of was the using of the wall, appropriating it to the use of the new building by building against it. This was a trespass of a permanent character, and if the plaintiff is entitled to recover at all in this form of action lie can recover for the entire injury, against the person committing the trespass. It is familiar law that actions for trespass to real property may be brought either against the hand actually committing the injury, or against the person by whose order and authority the act was done: Frantz v. Lenhart, 6 P. F. S., 365; Drake v. Kiely, 12 Norris, 492. In such case there can be no measure of damages short of compensation.
Judgment affirmed.