The power to take land for the purpose stated does not confer the right to take an absolute estate in fee simple, because such an estate is not necessary to the enjoyment of the defined privilege any more than it would be necessary where land is taken for a highway, railroad or turnpike. The use only of the petitioner's land was taken, and that use is limited to the purposes named. The rule is applicable, which defines the rights of the owner of an easement in the land of another, by determining what is reasonably necessary for the enjoyment of that easement. For all purposes consistent with that enjoyment, the right to use the land remains in the owner of the fee. Atkins v. Bordman, 2 Met. 457, 467. Perley v. Chandler, 6 Mass. 454. Adams v. Emerson, 6 Pick. 57. Proprietors of Locks & Canals v. Nashua & Lowell Railroad, 104 Mass. 1, 11. Thus, if the easement is a public or private right of way over the surface of the land, the rule forbids the erection of anything which obstructs that right. If it is a right to construct and maintain an underground drain, sewer or aqueduct, then the landowner may well use and cultivate the surface of his land, erect fences and perhaps other structures thereon, without any invasion of the rights of the owner of the easement. It is a question which must be submitted to the jury, unless the invasion of the right complained of is so manifest as to leave no question of fact for their consideration.

In this case, it could not be properly ruled in favor of the petitioner, that the city, as matter of law, had a right of way generally over the location in question, or a right to keep it free from all structures. Nor could it be properly ruled, in favor of the city, that the petitioner had the right to erect structures of any description. The use which he might make of the surface of his land is largely a question of fact; it depends on the size and strength of the sewer, the depth of its location, the character and size of the stream of water flowing through it. And, under the instructions given, the question, as bearing on the damages to be assessed, was properly left to the jury.

Upon the question of the benefits which were to be set off against the claim for damages, the judge ruled that they must be direct, peculiar and special benefits derived by the petitioner's estate from the sewer, and not the general benefits acquired

by this estate with other estates adjoining. By the act under which the sewer was located, the damages were to be assessed in the same way as in the laying out of highways. Section 4 of that act also provides that estates benefited by the sewer shall be assessed a proportionate share of the expenditure of the city for drains and sewers. Under this section, the petitioner had duly paid his assessment, and contended that the benefit, which he insisted included drainage of this land, having been thus paid for, could not be set off in this proceeding. But the assessment under § 4 is an assessment, upon the several classes of estates, of a proportionate share of the expenditure of the city for drains and sewers, and not an assessment for the particular benefit derived by any estate from any particular sewer. It is not based upon the peculiar and special benefits of each estate. Butler v. Worcester, 112 Mass. 541. Workman v. Worcester, 118 Mass. 168. Sexton v. North Bridgewater, 116 Mass. 200.

It is the intention of the statute that a landowner shall only receive such damages as he is entitled to, after deducting special benefits, and shall be liable to be assessed in common with other estates of the same class for his just and proportionate share of the whole expense for sewers and drains.

Exceptions overruled.

CHARLES L. GORHAM & another vs. RAPHAEL GROSS &

another.

Worcester. Oct. 2, 1877. Aug. 31, 1878. ENDICOTT & LORD, JJ.,

absent.

1 he owner of land, who makes a contract with a firm of masons, by which the latter are to furnish all the materials and labor in building a party wall, half on his land and half on the land of an adjoining owner, is liable in tort to such adjoining owner, after the wall has been completed and accepted, for an injury to his property by the fall of the wall, resulting from its defective and unsafe condition, whether owing to his own negligence or to that of the masons.

On the issue whether the owner of land in a city, who builds a party wall under at agreement with the adjoining owner, reciting that "any points respecting the same, which are not herein specifically provided for, shall be decided by the custom in regard to party walls in the said city," is bound to put flues therein for the use of such adjoining owner, an expert may be asked if party walls in that city are "usually constructed with flues for the accommodation of the adjacent estate.”

TORT for injuries by the falling of a party wall. After the decision reported 117 Mass. 442, the case was tried in this court, before Morton, J., who allowed a bill of exceptions in substance as follows:

On July 9, 1873, the plaintiffs and the defendants executed an indenture, the material parts of which were as follows: "Whereas the said Charles L. and Chester Gorham, and the said Gross and Strauss, are owners of certain adjoining parcels of land situated on the westerly side of Main Street in the said Worcester, between land of the People's Savings Bank on the north and land of Mrs. Mary H. E. Davis on the south, and whereas the said parties to these presents propose to erect buildings upon their respective premises, they do hereby covenant and agree, each with the other, for themselves, their heirs or assigns, that the wall between their said premises shall be what is known as a party wall, to wit: One half of the thickness of the wall shall be built upon land owned by each of the said parties to these presents, and, for the proper erection and maintenance of such party wall, the said parties do hereby give and grant each to the other, and to their heirs or assigns, all such rights and privileges in the premises and estates of each other as may be necessary for the fulfilment of this agreement in each and every particular thereof, subject to the restrictions and provisions hereinafter specified.

"It is hereby agreed that either or each party shall have the right at any time to build said party wall, or any part thereof, or to make additions thereto, by whomsoever such wall, or part, may have been previously built.

"And it is hereby agreed that the said party wall shall be built, constructed and maintained, in its several parts, and in any additions that may be made thereto, as follows:" to wit, of brick, with stone foundation, and in other respects as particularly described.

"The said party wall or any part thereof, which shall be built by one of the said parties to these presents, their heirs or as signs, shall be built to the satisfaction of the other party, their heirs or assigns, and the cost thereof shall be ascertained and agreed upon within a reasonable time after the building of such wall or part thereof, and either of the said parties, their heirs or

assigns, desiring to use the said wall or a part thereof which has been built by the other party, their heirs or assigns, shall pay one half the costs of building the full thickness of the wall, for the whole of said wall in case they make use of the same, or a true proportional part of said cost, in case they use a part only of said wall.

"Each party to these presents hereby reserves the right to enter, use or improve said party wall, in such ways and for such purposes as party walls are usually constructed therefor, and it is hereby agreed that any points respecting the same, which are not herein specifically provided for, shall be decided by the custom in regard to party walls in the said city of Worcester."

66

On September 12, 1873, the defendants made a contract in writing with a firm of masons, by the terms of which the latter were to furnish all materials and to perform or cause to be performed all labor in completing the granite and brick work, including setting of stone in brick work, and lathing and plastering," for a building, including the wall in question, to be erected for the defendants, "in strict conformity with the plans, specifications and detail drawings for the same furnished by, and under the superintendence and to the acceptance of, Frank W. Cherrington, architect; " the defendants were to pay them a gross sum, "seventy-five per cent. of the amount due at the close of each month for the labor and materials furnished during the month, and, upon the completion of the brick work, the full amount due therefor," and all extra work to be paid for as agreed upon by the defendants or their "agent, the architect."

The specifications set forth that "the aforesaid building is to be erected under the superintendence and to the acceptance of F. W. Cherrington, architect." Cherrington testified that the only superintendence of the building he exercised was to inspect the work, to see that the structure conformed to the specifications, and to give the contractors, on the completion of each month's work, a certificate that they were entitled to receive therefor the amount then due under the building contract, on the strength of which certificate the contractors drew their pay from the defendants.

It appeared that the wall in question was erected, one half its width on land of the plaintiffs and the other half on land of the

defendants; that the plaintiffs' lot was occupied by a one-story wooden building used as a music shop and frequented by customers; and that at five o'clock in the morning of December 4, 1873, the wall fell, crushing this building and destroying its contents.

The plaintiffs offered evidence that the wall was complete up to the third story of the defendants' building, and that the floor of the fourth story had been laid; that the rear wall of the fourth story and the north wall which fell had been completed, except for a few feet from the front, which was left until the front, which was intended to be of a more ornamental character, should be built at a later time; that the south wall, about two thirds into which the trusses were built, was at its full height, and the rest nine feet high; that the side walls of the fourth story were ninety feet in length, twelve feet in height, and about fifty feet above the ground; that there were no stays or supports of any kind to the north wall, except two trusses which were for the support of the roof, and which had been put in by the carpenter with whom the defendants had contracted to do the wood work upon the building, which stretched across the building and were anchored into the north and south walls; that the wall which fell was blown over by the wind; that ordinary prudence required that it should have been secured by stays at intervals of about ten feet, and that, if so properly stayed, the accident would not have happened; that the attention of two or three persons was drawn a day or two beforehand to the dangerous condition of the wall, and one of them, an architect, called the attention of one of the contractors to the danger; and that the defendants passed the building daily and were in it frequently, and Cherrington, their architect, was daily about the building, and that they and he had means of knowing and preventing the danger.

The defendants contended, and offered evidence tending to show, that the wall was built when the weather was extremely cold, the thermometer being elow zero, so that the mortar froze as soon as laid; that there came suddenly a day and night of very warm weather, which softened the mortar and destroyed its tenacity, so that it could not support the weight of the bricks, and the wall was thereby crushed; that the night was still; and