The judgment of the court was pronounced by
Eustis, C. J.The plaintiff and defendant are owners of contiguous lots of ground in the Second Municipality. The plaintiff built a wooden house on his lot, but left a space for a passage between the house and the division line.
The defendant built a wall of his house, which he was erecting, on the line, and took seven and a half inches of the land of the plaintiff to place his wall upon. This suit is for the removal of the wall, and damages for the alleged trespass. There was judgment for the plaintiff, and the defendant has appealed.
Neither of the lots are surrounded by walls. The wall erected by the defendant is of brick. No objection is raised as to the precise quantity of the plaintiff’s land taken for the wall, but the right to take any, or to abridge the passage on the plaintiff’s land in any manner, is denied, and the case has been argued on the law of party walls as established by the Code.
Article 671, which gives the right to the owner who first builds in a place not surrounded with walls to rest half his wall on the land of his neighbor, provided he build in a certain manner, we think must beheld as establishing an. urban servitude with which urban property is encumbered, without reference to title or the agreements of parties, Civil Code 662, 670. We do not think that any constitutional question as- to the enforcement of this right arises in this case, which presents a naked question of law under the provisions of the Code.
Article 671 existed in the Code of 1809, and a large proportion of the buildings of the city contain party walls,.particularly in those parts iu which the land is most valuable. It is acted upon every day, and is well understood by architects and workmen. Notwithstanding the great difficulty of exercising the right it confers, it rarely gives rise to any litigation. The cases of Larche v. Jackson, and Crocker v. Blanc, appear to us to be conclusive, as to the objections raised by the counsel for the plaintiff in argument.
The privilege exercised in the carrying into effect of this servitude does not appear to have been used with any want of proper care, or any disregard of the rights of the plaintiff. The witnesses appear to base their estimate of damages, on the absence of any right on the part of the defendant to construct the wall on any portion of the land of the plaintiff. Assuming that right to exist, there is no sufficient evidence of any damage. Looney v. High, 13 La. 272.
The judgment of the District Courtis, therefore, reversed; and judgment rendered for the defendant, with costs in both courts.