Kansas City Northwestern Railroad v. Schwake

The opinion of the court was delivered by' Smith, J.: The case was tried and proceeded to judgment in the court below on the theory that the obstruction to the alley was a permanent appropriation of it by the railroad company. Such appropriation involved the weakening of the lateral support of the rear end of the lots abutting on the alley by reason of an excavation to the depth of eighteen feet, made to accommodate the railroad-track. Entering into the verdict, as disclosed by the findings of the jury, was the element of damages caused by the impairment to the lateral support of the land afforded by the soil adjacent thereto which the lots naturally had before the excavation was made. An allowance was made for the future cost of building a stone wall at the back of the lots. The jury awarded no damages because any portion of the lots had slipped or fallen into the excavation. It is a general rule, to which we have found no exception, that a landowner does not suffer damages recoverable at law for injury to lateral support of his property until the earth is so much disturbed that it slides or falls. The principle was well stated in Schultz v. Bower, 57 Minn. 493, 496, 59 N. W. 631, 47 Am. St. Rep. 630, 632, thus : “Where one, by digging in his own land, causes [146] the adjoining land of another to fall, the actionable wrong is not the excavation, but the act of allowing the other’s land to fall.” A leading case on the subject was decided in the house of lords, in which it was held that the statute of limitations began to run on an action for damages based on impairment of lateral support of land not from the time of excavation but from the actual occurrence of. the mischief, which in that case was the subsidence of the earth by the working of a mine under the plaintiff’s land. (Backhouse v. Bonomi, 1 B. & S. 970.) Counsel in the case referred to argued that the plaintiffs were entitled to recover prospective damages for any loss which they could have shown would arise, or might reasonably be expected to arise, from the withdrawal of lateral support. It was decided otherwise. The following cases are in point: Williams v. Kenney, 14 Barb. 629; Ludlow v. The Hudson River Railroad Co., 6 Lans. 128; Smith v. Seattle, 18 Wash. 484, 51 Pac. 1057, 63 Am. St. Rep. 910; Fremont, E. & M. V. R. Co. v. Harlin, 50 Neb. 698, 70 N. W. 263, 36 L. R. A. 417, 61 Am. St. Rep. 578. See, also, section 590 of Jones on Easements. While it was competent for plaintiff below to prove the market value of the lots before and after the appropriation of the alley to show the extent of the injury sustained by him, yet his damages, under the uniform decisions of this court in like cases, must be confined to the diminution in value occasioned by the peculiar and special injury sustained by being cut off from access to, and egress from, the land. Decrease in market value occasioned by an injury apart from the loss of use of the alley cannot be shown by bringing into the case an element of damage for which no action would lie. The cases of L. N. & S. Rly. Co. [147] v. Curtan, 51 Kan. 432, 33 Pac. 297, and C. B. U. P. Rld. Co. v. Andrews, 26 id. 702, cited by counsel for defendant in error, do not sustain their views on the right of the lotowner to recover for injury to lateral support. Plaintiff in error asks that the judgment of the court below be modified by a direction that the sum allowed for damage to lateral support be eliminated from it.. A review of the particular questions of fact submitted to the jury, and their answers thereto, satisfies us that they are so conflicting that no judgment for either party can be sustained. The jury found that the difference in the market value of the lots before and after the appropriation was $950 ; that they had depreciated that much. On this finding judgment must go for plaintiff below, and such finding seems to have followed a proper submission of the case to the jury, for the court did not instruct that damages for injury to lateral support might be recovered, and, in the absence of evidence, we cannot say there was any proof of it. The jury allowed $750 for injury to lateral support. This conflicts with the finding as to-market value before and after appropriation, and is at variance with the theory on which the case was-seemingly tried, inasmuch as there was nothing in the instructions authorizing a recovery for damage to lateral support, and none of the evidence is before us. It may be said that the jury, under the theory on which the case was tried, did not and could not consider the damage to lateral support, and did not mean that they had when they answered that the general market value of the lots was $9000 immediately before the appropriation and $8050 immediately afterward. The finding that an allowance of $750 was made for destruction of lateral support is in direct148 conflict with the findings respecting market value, when we consider that the findings as' to value were made without any evidence before the jury regarding the question. The judgment of the court below will be reversed and a new trial granted. Johnston, C. J., Cunningham, Greene, JJ., concurring.