Benner v. Cassatt

Citations

• 236 Pa. 248
• 84 A. 780
• 1912 Pa. LEXIS 743

Syllabus

<p>Trespass — Encroachment on land — Foundation wall.</p> <p>1. A bill in equity to restrain the maintenance of the windows in what is alleged to be a party wall and for damages, is properly dismissed where it appears that the foundation of the wall as originally built encroached upon plaintiff’s land from two and one-half to four inches at places; that the whole of the wall above the foundation was within the defendant’s line, and that the portions of the foundation wall which encroached upon the plaintiff’s land were removed when the defendant’s attention was called to the encroachment and before the bill was served upon him; and all the more should the bill be dismissed if it appears that the strip of land extending along the side of the plaintiff’s lot where the wall was built, was subject to the easement of an alley for the use of the owners and occupants of the lots bounding thereon. In such a case the costs are properly placed upon the plaintiff where it appears that at the time the bill -was filed and service thereof accepted, the intrusion on the plaintiff’s premises had ceased; nor had the plaintiff any right to damages whatever.</p> <p>Equity practice — Filing hill — Printed hill — Certificate as to time — Certificate as to poverty — Cost of hill.</p> <p>2. Where a plaintiff files an unprinted bill in equity without the certificate as to time or poverty, required by the equity rules, and immediately borrows the bill from the prothonotary, and it is never seen again, and one week thereafter the plaintiff files a printed bill in proper form, the court will consider the first bill as a nullity, and will dispose of the case' and the costs thereon by a consideration of the second bill only.</p>