Gildersleeve v. Hammond

Grant, J. {after stating the facts). The precise questions involved appear not to have been decided by this court. The questions are: 1. What rights does a landowner possess, in excavating close to his neighbor’s line? 2. What duty does he owe to his .neighbor, and what means, if any, must he take to protect the soil of his neighbor and prevent it from caving in? 3. Under what circumstances, if any, is such landowner responsible for damages to the superstructure erected on his neighbor’s lot? The defendants’ positions are thus summarized: (1) Plaintiff’s building was in a business part of the city. She was therefore bound to know that improvements would be made upon the adjoining vacant lot, and was bound, in law, to so construct her building as to allow such improvements to be made in the ordinary way. (2) They admit that plaintiff was entitled to the natural right of lateral support for her'land from the adjoining land, and, if her land fell in consequence of such excavation, she had an action against the defendants, although the excavating was not done carelessly or unskillfully. (3) This natural right does not extend to the artificial structures placed upon the land, and, if the plaintiff erected her house on or near the verge of her land, she had no natural right of lateral support for the building. Plaintiff bases her claim upon the familiar legal maxim, “ Sic utere tuo ut alienum non Icedas,” insisting that this maxim applies to the case where one may, by the exercise of ordinary care and prudence, so use his own as not to cause injury to another. The court instructed the jury as follows: “The adjacent owner may excavate his own land for Such lawful purposes as he sees fit, provided he digs with ordinary care; and if in so doing the earth gives way, and a house upon the adjacent earth falls by reason of the additional weight placed upon the natural soil, he is without remedy, provided the adjacent owner used rea — 435 — sonable skill, care, and diligence in digging the excavation, and has used reasonable means to protect the adjacent lands and buildings from falling into the excavation.” This was the groundwork of the charge, and we need not state it more fully. The defendants’ first proposition is undoubtedly a correct statement of the law. Chancellor Wallworth, in Lasala v. Holbrook, 4 Paige, 169, thus states the rule: “I cannot deprive him [my neighbor] of this right by erecting a building on my lot, the weight of which will cause my land to fall into the pit which he may dig in the proper and legitimate exercise of his previous right to improve his own lot.” Non sequitur that the excavator may dig his pit so close to his neighbor’s line that his adjacent land will fall into it, and, as it falls, draw it away, and continue this process until several feet in width have caved off, and undermined a building several feet from the line. Clearly it was not, in this case, the pressure of the building upon the adjacent land that caused the soil to cave. The soil] would have caved in, had there been no building. The caving process began almost simultaneously with the digging. Had the soil been sufficiently adhesive to leave a perpendicular surface as the excavation was made, the building would not have caused it to fall. At least, there is no evidence that it would. Therefore, the pressure of the building did not cause the soil to cave in, but the removal of the plaintiff’s soil, between the division line and her foundation ■ wall, caused the building to fall. The distinction between the two cases, and the principles governing them, is apparent. The defendants’ second position is conceded to be the law. It is also the well-established rule that a superstructure is not entitled to the lateral support of the adjoining land, and that a landowner may remove such support for all legitimate purposes. The authorities cited by the defendants fully support this position. 2 Washb. Real Prop. 380 (*74); Lasala v. Holbrook, 4 Paige, 169 (25 — 436 — Am. Dec. 524); Dorrity v. Rapp, 72 N. Y. 307; Ketcham v. Newman, 141 N. Y. 205; Gilmore v. Driscoll, 122 Mass. 199 (23 Am. Rep. 312); Schultz v. Byers, 53 N. J. Law, 442; Charless v. Rankin, 22 Mo. 566; Eads v. Gains, 58 Mo. App. 586; Larson v. Railway Co., 110 Mo. 234 (33 Am. St. Rep. 439). In order to maintain an action for injury to the adjoining land in consequence of an excavation made by the adjacent owner, no negligence is necessary. Every man is entitled to the enjoyment of his land in its natural state, and any removal of it by excavating the adjoining land is a wrong, per se, for which the law gives damages. It would seem to follow naturally that, in such excavations, the landowner is bound to the exercise of some degree of care to prevent the soil from caving in. If the soil is adhesive, so that it will remain in its natural position with the lateral support removed, obviously the excavator may excavate as deep as he pleases,—even close to the boundary line. If, in such case, his neighbor’s land caves in by reason of the pressure of the superstructure upon it, it is damnum absque injuria. But is this true of a sandy, gravelly soil ? Most of the authorities above cited recognize the duty of the excavator to use reasonable care in the performance of his work. Washburn says, at the page above cited, “Such adjacent owner may excavate his own land for such purposes as he sees fit, provided he does not dig carelessly or recklessly.” In Dorrity v. Rapp, supra, it is said: “The owner of land, in making an excavation on his own premises which may endanger a building on his neighbor’s land, is bound to use reasonable care in the prosecution of the work, and is liable for injuries to his neighbor’s property resulting from his negligence.” Similar expressions are found in nearly all the authorities cited; and in Eads v. Gains, supra, the court say, “The law is universal that, for the injury caused to a building by an excavation performed without ordinary care, the excavator is responsible.” See, also, City of — 437 — Quincy v. Jones, 76 Ill. 231 (20 Am. Rep. 243), in which, at page 241, the court lays down the law as follows: “ If injury is sustained to a building in consequence of the withdrawal of the lateral support of the neighboring soil, when it has been withdrawn with reasonable skill and care to avoid unnecessary injury, there can be no recovery; but, if injury is done the building by the careless and negligent manner in which the soil is withdrawn, the owner is entitled to recover to the extent of the injury thus occasioned.” So, in Washb. Easm. (4th Ed.), at page 582, the editor thus states the principle: “If the owner of the adjoining land takes away the natural support, it does not matter whether he acts with due care and is guilty of no negligence. On the other hand, this natural right of support does not extend to buildings or other additional weights superimposed upon the land, unless, either by express grant or by their existence on the land for a prescriptive period, they have gained an easement of support from the adjacent land. Until they have so acquired that right, the owner of the adjoining land may cut or dig it away as he chooses, provided he does not carelessly or wantonly deprive his neighbor of the support to his buildings; or, in other words, if the owner of the adjoining land makes excavations of such a nature that by it the adjoining land would, in its natural state, be caused to fall, without the additional weight of buildings upon it, he is liable, whether negligent or not. If the excavation is such that the adjoining soil would not have fallen, had it not been weighted by the buildings upon it, he is not liable, unless he made the excavation carelessly, negligently, or wantonly.” Undoubtedly the courts often find difficulty in determining whether the superstructure did or did not cause the soil to cave in, but in this case we think there is no such difficulty. Plaintiff had erected a lawful building. She had placed the foundation wall 4=¶ feet from the line. It is. established by the evidence, and is also a matter of common knowledge, that the caving of the soil might have been avoided by either excavating and building the — 438 — wall in sections, or by planking to keep the soil in place, as is usually done in excavating to put in sewers and water pipes in similar soil. The evidence on the part of the plaintiff further shows that, in excavations like the one now under consideration, it is common to use one of these two methods, and as the witness Sleeper, a builder of experience, aptly expresses it: “ It is a custom of common sense. It is a general custom.” Where the fact is in dispute, it must be determined by the jury; and the court in this case left it to them, although we think that he might with propriety have instructed them that there was no evidence that the building caused plaintiff’s earth to fall away. Broadly and fairly stated, the defendants’ contention is this: They had the right to excavate to the depth of 7 or 8 feet in this sandy and gravelly soil, the entire 55 feet, without any effort to prevent the plaintiff’s soil from caving in, to draw it away as it fell until it had fallen to a distance of from 4£ to 5 feet from the boundary line and reached directly under her foundation wall, and that this was an excavation in the usual manner, and with ordinary care. The proposition does not commend itself to our judgment, nor does it seem to us to be based upon sound reason, common sense, and common honesty, which are the foundation of the common law. Nor do we think that the authorities sustain the proposition. On the contrary, we think that such conduct is negligence per se, bordering upon recklessness. It is established by the evidence that the caving of the soil could have been prevented by the defendants at an expense of from $15 to $25. In Larson v. Railway Co., supra, the excavator had notified his neighbor that he should excavate and build his wall in sections. Instead of doing this, he excavated nearly the entire distance in a soil similar to that of the plaintiff, and was held responsible for injury to the building. Our conclusion as to the law of this and similar cases is: 1. While a landowner has the undoubted right to excavate close to the boundary line, he must take reason — 439 — able precautions to prevent his neighbor’s soil from falling. Ü. If he has taken such reasonable precautions, and yet the soil falls from its own pressure, he is still liable for injury to the land, but not for any injury to the superstructure. , 3. If the pressure of the superstructure causes the land to fall, he is not liable either for injury to the land or superstructure. 4. If he fails to take such reasonable precautions to protect his neighbor’s soil, and to preserve it in its natural state, he is liable for the injury to both the land and the superstructure, if the pressure of the superstructure did not cause the land to fall, and it fell in consequence of the failure to take such reasonable precautions. It is, however, insisted by the defendants that the plaintiff was guilty of contributory negligence, in not shoring up and protecting her- own property when she saw the imminent danger. Under her evidence, the defendants informed her that they would protect her building, and this would relieve her from any further responsibility. This evidence was objected to upon the ground that it tended to prove a different cause of action from that set up in the declaration; namely, a liability arising from contract. This clearly cannot be so. It was not introduced or used for that purpose. It was competent evidence to relieve the plaintiff from the charge of contributory negligence. Larson v. Railway Co., supra. Aside from this, however, this is not a case for the application of the doctrine of contributory negligence. The defendants knowingly, intentionally, and willfully removed the natural support to the plaintiff’s building, by the removal of her own soil. The building fell while the work was going on. They knew the consequences that must inevitably follow their wrongful acts. One may not deliberately undermine my building, and then avoid the consequences by saying to me, “You might — 440 — have protected it.” The rule in Richards v. Peter, 70 Mich. 290; Talley v. Courier, 93 Mich. 473; Wilson v. Railroad Co., 94 Mich. 25; and Richter v. Harper, 95 Mich. 228,—does not apply to the facts in this case. The record does not show any neglect of duty by plaintiff. The judgment is affirmed. Long, C. J., Montgomery and Moore, JJ., concurred with Grant, J