Board of Chosen Freeholders v. Woodcliff Land Improvement Co.

— 356 — The opinion of the court was delivered by SWAY.ZE, J. The defendant has demurred to two counts of the plaintiffs declaration. The first count avers that the defendant conveyed to -the plaintiff certain land therein described, more particularly shown on a map delivered with the deed, for the uses and purposes of a branch or connecting public road in the county of Hudson, in pursuance of the act of April 7th, 1888; that the conveyance was made upon the express condition that the road, when built, should at certain points marked on the map be according to the grades shown on the map; that the plaintiff constructed a road in strict conformity with the grants, covenants, conditions, restrictions and provisos therein contained; that the construction was completed May 1st, 1897, and'maintained by the plaintiff continuously thereafter; that the road was constructed of macadam, with a parapet-and retaining wall on the easterly side, varying in height above the adjacent soil to the east, from six to twenty feet; that outside of the retaining wall, at the time of the delivery of the deed and the construction of the road, the earth, in its natural state, extended on the horizontal in an easterly direction three .hundred feet to the edge of a bluff, from which there was a sharp descent of one hundred and eighty feet to the foot of the bluff at the westerly shore of the Hudson river; that the plaintiffs were lawfully entitled to have sufficient of the earth in its natural state remain to support the road and the retaining wall; that the defendant leased to the Clinton Point Stone Company, for fee or reward, the land of the defendant lying to the east of the lands conveyed to the plaintiff, “for the purpose of excavating, blasting away and removing the rock, stone and earth so near the easterly side line of said road, over the lands above described, forming the lateral support of the said road * * * as to expose the said road * * * to the peril of falling; and did also license and permit said Clinton Point Stone Company and others * * * to excavate, blast away and remove the earth, soil and rock so near the easterly side line of said road, over the lands above described, forming the lateral support of the said road — 357 — * * * as to expose the said road * * * to the danger of falling;” that the Clinton Point Stone Company, pursuant to the lease and license, blasted away and removed the earth, rock and soil in conformity with the lease 'and license of the defendant, by means whereof the rock and earth caved, subsided and fell down, and the road was damagéd. The second count omits the averment as to the lease and avers that the defendant licensed and permitted the stone company to enter the lands of the defendant for the purpose of excavating, blasting away and removing the rock and stone, with the right in the defendant to remove the stone company and others from and off the lands, especially if the stone company blasted and excavated the rock; earth and soil so close to the easterly line of the road as to endanger the falling of the road; that the stone company, with the knowledge of the defendant, commenced blasting away, excavating and removing the.earth, rock and soil so near the line of the road as to endanger its fall; that the defendant did not and would not cause the stone company to desist and refrain from so blasting, excavating and removing the rock, soil and earth, but, with full knowledge of the premises, permitted the stone company to blast so near the line of the road that it caved, subsided and fell down. Whether the facts stated show an injury to the plaintiff depends upon the right of the plaintiff to lateral support. It is settled law in this state that ordinarily the duty of lateral support of a neighbor’s land is limited to the support of the land in its natural condition. McGuire v. Grant, 1 Dutcher 356; Schultz v. Byers, 24 Vroom 442. Unless, therefore, this case contains some feature which distinguishes it from an ordinary case, there was no duty of lateral support of the added burden of the road. We think that there are facts in this case which take it out of the ordinary rule and require an inference of an implied grant of an easement of lateral support for the road. The declaration avers that the land of the plaintiffs was conveyed to them by the defendant for the purpose of a road, to be built according to grades shown upon a map, and that the road was built in accordance — 358 — with the covenants and provisos of the deed. The maintenance of such a road required support from the adjacent land of the defendant, and the parties must be held to have contemplated this necessity and to have allowed for the detriment to the defendant caused by the increased burden upon its land in determining the consideration for the conveyance. A similar question has arisen in the English courts. In Caledonian Railway Co. v. Sprot, 1 Pat. (Sc. App.) 633, 642; S. C., 2 Macq. H. L. Cas. 449; 17 Eng. Rul. Cas. 686, it was held by the house of lords that the grantor in a conveyance to a railway company by implication conveyed to the company the right to all necessary support of their line of railway, and could not derogate from that conveyance by working mines and removing that support, although he had by the conveyance reserved the mines to himself and his heirs, with full liberty to win and work minerals. Lord Cranworth said: “Independently of any provisions contained in the act of parliament, the effect of that conveyance was to convey the land to be covered by the railway to the company, together with a right to all reasonable subjacent and adjacent support. A right to such support is a right necessarily connected with the subject-matter of the grant. If the owners of a house were to convey the upper story to a purchaser, reserving all below the upper story, such purchaser would, on general principles, have a right to prevent the owner of the lower stories from interfering with the walls and beams upon which the upper story rests so as to prevent them from affording proper support, so far, at all events, as to prevent a person who has granted a part of his land from so dealing with that which he retains as to cause what he has granted to sink or fall. How far such adjacent support must extend is a question which, in each particular case, will depend on its own special circumstances.” This case was'decided on a Scotch appeal in 1856. A similar question arose in England in 1860. Northeastern Railway Co. v. Elliott, 1 J. & H. 145; 2 DeG. F. & J. 423; 10 H. L. Cas. 333. The case is also reported in 29 L. J., Ch. 808; 30 Id. 160; 32 Id. 402. The case was therefore very thoroughly discussed, and it was — 359 — held that a conveyance granting land for a special purpose must be construed as conveying all the rights necessarily incident to the due execution of that purpose. The latter case was somewhat complicated by the fact that there were statutory provisions for the case of mines lying under lands purchased by the railway company. The appellant contended that the rights of the company were defined by the act, and that the rule of the common law in regard to lateral support over adjacent lands was altogether excluded. Lord Chelmsford, however, thought that the case was controlled by Caledonian Company v. Sprot. In answer to the contention on the part of the appellant that that case was a ease of a, voluntary conveyance, while the Elliott case, although in form a voluntary conveyance, was to be regarded as compulsory since the company had power to condemn lands, he said that whether voluntary or compulsory, every grant must carry with it all that is necessary to the enjoyment of the subject-matter of it, and therefore, if a certain grant of lateral support was essential to the safety of the railway, the right to it must pass as a necessary incident to the grant. The authority of these cases was subsequently recognized by the house of lords in Great Western Railway Co. v. Bennett, L. R., 2 H. L. 27; 36 L. J., Q. B. 133; 17 Eng. Rul. Cas. 706, and in the great case of Dalton v. Angus, 6 App. Cas. 740; 50 L. J., Q. B. 689; 10 Eng. Rul. Cas. 98, decided in the house of lords in 1879, Lord Selborne, while recognizing the general rule that the right of lateral support generally was applicable only to lands in their natural state, said that a right to the support of lands weighted by artificial structures would be sustained as a matter of grant, upon the authority of Caledonian Railway Company v. Sprot. That case has also been followed in the still more recent case of the Great Western Railway Co. v. Cefn Cribbwr Brick Co. (1894), 2 Ch. 437; 63 L. J., Ch. 500. We think the view taken by the English courts is based upon a correct principle, and that to allow the defendant to maintain that there was no right of lateral support in this ease except of the lands in their natural state would allow — 360 — •him to derogate from his own grant, which was for the express purpose of a road to be built at the grade at which this road was built. It was argued on behalf of the defendant that the conveyance for the purpose of a highway did not involve necessarily the burdening of the surface with a retaining wall or other burdens. In the case of an ordinary highway which con-. forms to the natural'surface of the ground, this might possibly-be true, but by the very terms of the grant to the plaintiff the road was required to be constructed according to certain-grades and was actually constructed, as the declaration avers, in accordance therewith. It is a fair inference that these conventional grades differed from the natural grade of the ground, and must at some points have required fills. It is true that the declaration does not aver that the retaining wall was necessary for the purpose of the road, and if it appeared that the injury to the plaintiff was due to the increased weight of the retaining wall it might be arguable that the declaration should show by proper averments the necessity of the retaining wall; but as far as appears from the declaration the retaining wall in no way contributed to the injury, and in view of the averment that the lease to the stone company was for the purpose of excavating- and blasting so near the road as to expose .the road itself to the peril of falling, and the further averment that the rock, earth and soil of the road caved, subsided and fell down by reason of the acts of the stone company, we think we ought not to infer that the injury was caused by the increased weight of an unnecessary retaining wall. The question remains whether the defendant is responsible for the injury complained of. The acts which resulted in that injury were not the acts of the defendant, but of its lessee, the Clinton Point Stone Company. This court has held, in Ingwersen v. Rankin, 18 Vroom 18, that if a nuisance is created during a term already existing no liability falls on the landlord pending that term, for the reason that he has no legal means of abating the nuisance; and it seems to be settled, in the English courts, that'where the nuisance arises — 361 — solely from the act of the tenant during his term the landlord cannot be held liable. Rick v. Basterfield, 4 C. B. 783; Russell v. Shenton, 3 Q. B. 449. It was settled in this court, by Ingwersen v. Rankin, that where the nuisance existed at the time of the demise an action would lie against the lessor. The present case involves the question, which was left undecided by Ingwersen v. Rankin, whether the lessor is liable for a nuisance which is a necessary, contemplated' or probable result of the use of the premises for the purposes for which they are leased. We can see no distinction in principle between the liability of the lessor who demises premises with an already existing nuisance and the liability of a lessor who demises premises for a purpose the necessary result of ■which is a nuisance, and the case is much stronger against a lessor who demises premises for the very purpose of creating a nuisance. In such a case he participates in the creation of the nuisance, either by authorizing it or’by making the act of the tenant his own. It would be manifestly wrong to allow the lessor to escape liability merely by demising the premises in order that the nuisance might be the original act of the lessee only. The authorities sustain this position. One of the early eases is Fish v. Dodge, 4 Den. 311, where Chief-Justice Bronson likened the case to that of a man who might be indicted and punished for keeping a bawdy house where he had rented a tenement for tliat purpose. Other cases to the same effect are House v. Metcalf, 27 Conn. 640; Jackman v. Arlington Mills, 137 Mass. 277; Samuelson v. Cleveland Iron Co., 49 Mich. 164; Fow v. Roberts, 108 Pa. St. 489. The more recent case is found in the English reports. Harris v. James, 45 L. J., Q. B. 545. It has been held, with equal reason, that where the nuisance is created by the lessee with the license or consent of the lessor, the latter is. liable. Twiss v. Baldwin, 9 Conn. 291; Riley v. Simpson, 83 Cal. 217. The averments of the first count demurred to bring this case within this rule. It is averred that the defendant leased the premises to the stone company for the purpose, not merely of blasting and 'removing rock, but for the purpose of removing and blasting rock so near the road as to expose the road to the peril of falling. — 362 — The second count, however, must rest upon a different basis, for it avers a license for the purpose of blasting and removing rock, subject to the right of the defendant to remove the licensee if the latter blasted so close to the road as to endanger its fall. The last averment seems inconsistent with any purpose on the part of the lessor to infringe the rights of the plaintiff. The liability of the defendant upon the second count must rest upon other principles. That count contains an averment that the defendant permitted the stone company and others to blast and remove rock so near the line of the road that the latter caved, subsided and fell down. The effect of these averments is that the original license did not permit the stone company to injure the plaintiff, but that subsequently such injury was permitted. The defendant is then in the position of an occupant of land who suffers a nuisance thereon. He is not within the reason of the cases which exempt a lessor for a nuisance arising after the lease, for he can enter at any time and abate the nuisance; the land is his and no term of a tenant stands in his way. White v. Jameson, L. R., 18 Eq. Cas. 303. We therefore think that the second count also states, a cause of action against the defendant. Eor these reasons, the plaintiff is entitled to judgment upon the counts demurred to.