Milburn v. Fowler

Cullen, J.: The injunction order appealed from restrained the defendants from so digging on their own land as to endanger the safety of the highway or cause the earth of the same to subside or fall down. Thus the defendants were at full liberty to use their own land as they saw fit so long as they protected the highway. In this respect the injunction follows the precedent laid down in Farrand v. Marshall (19 Barb., 380). If the defendants do not intend to interfere with the highway this injunction will not affect them. It is claimed that there is no right of lateral support for the street unless it is alleged and shown that the highway is in its [570] natural state and free from superincumbent earth which may increase the lateral pressure. This doctrine, which, in the absence of any statutory regulations, controls the relative rights between adjacent owners, has no application to the case of a highway. The right to dig down one’s own land is not absolute, but subject to regulation. In the case of many cities this right is limited by statute, and such regulations are valid. (Dorrity v. Rapp, 72 N. Y., 307.) Any obstruction or interference with a highway is unlawful and per se a nuisance. One cannot dig a pit on his own land so close to the highway that a traveler may fall into it unawares. Certainly he cannot then dig that pit so as to cause a subsidénce or destruction of the highway itself. That this highway affords access and entrance to plaintiff’s premises gives him sufficient special interest or damage to entitle him to maintain this action. The early eases cited by appellants’ counsel have been much limited by recent decisions. (Francis v. Schoellkopf, 53 N. Y., 152.) The order appealed from should be affirmed, with costs.' Present — Barnard, P. J., and Oullen, J.; Dvkman, J., not sitting. Order continuing injunction affirmed, with costs.