Braun v. Hamack

• Decision Date: 05 January 1940
• Docket Number: No. 32097.,32097.
• Citation: 289 N.W. 553,206 Minn. 572
• Parties: BRAUN v. HAMACK.
• Court: Minnesota Supreme Court

289 N.W. 553

206 Minn. 572

BRAUN v. HAMACK.

No. 32097.

Supreme Court of Minnesota.

January 5, 1940.

Appeal from District Court, Hennepin County; A. W. Selover, Judge.

Action by Leo F. Braun against Frank Hamack to recover money expended in bracing and shoring defendant's property, so that plaintiff could proceed with building operations on adjacent premises. From a judgment in favor of defendant, the plaintiff appeals.

Judgment affirmed.

Sawyer & Caulfield, of Northfield, for appellant.

H. G. Haugland and Oscar G. Haugland, both of Minneapolis, for respondent.

GALLAGHER, Chief Justice.

On March 15, 1937, plaintiff commenced excavating on a lot in the city of Minneapolis thereby causing a building on an adjacent lot owned by defendant and the soil thereunder to start collapsing. The building inspector of the city of Minneapolis ordered defendant to build a foundation under the structure and to brace and support the building and ground. Plaintiff notified defendant of the condition resulting from the excavation, demanded proper protection and offered free entry on his premises for that purpose. Defendant having refused, plaintiff braced and shored defendant's property at a substantial cost as he was required to do in order safely to proceed with building operations. This action was instituted to recover the money thus expended.

The foregoing facts and others not here material were set forth in plaintiff's complaint to which were attached certain ordinances of the city of Minneapolis. Defendant demurred on the ground that the complaint does not state a cause of action The trial court sustained the demurrer and plaintiff appeals from a judgment thereafter entered.

The question presented is: Can an excavating land owner recover from the owner of adjoining burdened land sums expended by the former to brace and shore the latter's property when excavation could not be safely carried on without such precautions and when, after having been given notice of the plan to excavate, the owner of the burdened land has refused to provide necessary protection?

Rules governing related problems are fairly well established. Every land owner has a right to have his land supported in its natural state by the land adjoining and one who excavates or improves the adjoining land is under a correlative duty so to use his land that his adjacent neighbor's soil will not crumble or cave in of its own weight. Tiffany, Outlines of Real Property, § 258; Schultz v. Bower, 57 Minn. 493, 59 N.W. 631, 47 Am.St.Rep. 630; Young v. Mall Investment Co., 172 Minn. 428, 215 N.W. 840, 55 A.L.R. 461; Gilmore v. Driscoll, 122 Mass. 199, 23 Am. Rep. 312; Bissell v. Ford, 176 Mich. 64, 141 N.W. 860; Korogodsky v. Chimberoff, 256 Ill.App. 255; Northern Transportation Co. v. Chicago, 99 U.S. 635, 25 L.Ed. 336; Thompson, Real Property, § 549. Where the adjacent neighbor's land is not in its natural state but is burdened by buildings or other additional weight in the absence of which the excavating or improvement would not cause it to sink, the excavator need only exercise due care in conducting his operations. Young v. Mall Investment Co. supra; Hickman v. Wellauer, 169 Wis. 18, 171 N.W. 635; First Natl. Bank v. Villegra, 92 Cal. 96, 28 P. 97; Korogodsky v. Chimberoff, supra; Davis v. Sap, 20 Ohio App. 180, 152 N.E. 758.

The particular problem before us has not been decided by this court. Appellant relies on Eads v. Gains, 58 Mo.App. 586, where it was held on facts almost identical with those before us that a cause of action could be implied because the defendant committed a common law breach of duty in failing to sustain his wall thus making it necessary for plaintiff to do so in order to protect his interests. The effect of that decision is considerably weakened by Flanagan Bros. Mfg. Co. v. Levine, 142 Mo. App. 242, 125 S.W. 1172, where, although attempt was made to distinguish the Eads case, the Missouri court held that since one excavating on his lot was not bound to shore a building on an adjoining lot in order to protect such building, he could not recover for the expense of shoring the same; the work not being done at the owner's request.

Another case relied on by appellant is Christenson v. Mann, 187 Wis. 567, 204 N. W. 499, 41 A.L.R. 1192. It is of little persuasiveness here because the adjoining land owners had there entered into an agreement in advance whereby the work was to be paid for by the person legally obligated to do it.

What seems to be the better rule and the one we prefer to follow was expressed by an Illinois court (Korogodsky v. Chimberoff, 256 Ill.App. 255) in the following language: "The one making the improvement, has a common-law right to go upon the premises of the other for the purpose of shoring such building in order to protect property, when it is necessary, to prevent damage by reason of an excavation, but this is done at his own expense and cost. We are not in accord with the rule stated in the Missouri cases, but think the correct rule is found in the case of First Nat. Bank of San Francisco v. Villegra, 92 Cal. 96 ."

This statement is to be found in the California case [92 Cal. 96, 28 P. 98] cited in the above quotation: "It clearly appears that plaintiff expended this money for his own benefit and his own advantage, and not for the benefit and use of the defendant. A party cannot of his own volition create an obligation in his own favor by doing some act for his own interests, and the necessity for which was caused by himself. This is in no sense an action brought for the recovery of money advanced for and to the use of defendant. No legal duty rested upon the defendant to perform the work for which this money was expended, and plaintiff cannot create for himself the position of creditor against the will of the alleged debtor."

See also Neyman v. Pincus, 82 Mont. 467, 267 P. 805, and Davis v. Sap, 20 Ohio App. 180, 152 N.E. 758, where the problem is discussed and statements similar to those quoted may be found.

Some cities (including Minneapolis) have ordinances requiring one intending to excavate on his own land to give the adjacent land owner notice thereof. If such notice be given and the adjoining land owner does not take adequate precautions to protect his building, the excavator is not liable for damages if he exercises due care. Carty v. Blauth, 169 Cal. 713, 147 P. 949; Neyman v. Pincus, supra; Schaefer v. Hoffman, 198 Wis. 233, 223 N.W. 847. Further, the excavator may recover damages if the building on the improved land falls because of the failure of the owner to bolster it. Lyons v. Walsh, 92 Conn. 18, 101 A. 488, L.R.A.1917F, 680.

One in the position of plaintiff, having the remedies mentioned and perhaps others, cannot, we feel, prevail in an action to recover money which he was under no legal or moral obligation to expend. True, it is alleged that he was required to brace and shore defendant's property in order safely to proceed with building operations. But no such action would have been required if plaintiff had not insisted on proceeding with such operations. Can he now base a claim for recovery on a necessity caused in part at least by himself? We think not. The money was expended without legal compulsion and in the absence of an unavoidable urgency. Therefore, plaintiff acted as a volunteer and we know of no legal principle upon which to premise an obligation, contractual or otherwise, on the part of defendant to reimburse him.

Affirmed.

STONE, Justice (dissenting).

Essential to this decision is one of the following conclusions: (1) that defendant was under no duty in the premises, or (2) that plaintiff expended his money as a mere volunteer. It is respectfully submitted that the complaint shows both to be without support.

1. The building code of Minneapolis, so far as relevant, is pleaded. It requires all buildings to have proper foundations. Defendant's had none. It is averred that the building inspector, in the exercise of his authority, "ordered defendant" to build the foundation, some or all of which, or a substitute for which, plaintiff was compelled to construct as result of defendant's refusal. So, taking the complaint as true, defendant was under a duty at least so to support his own building as to prevent its falling into plaintiff's lawful excavation. Furthermore, defendant's obligation was a public duty as well as one owing to plaintiff as an individual.

Building code and inspector's order are both within the power of the city under the rule of Young v. Mall Investment Co. 172 Minn. 428, 432, 215 N.W. 840, 55 A.L.R. 461. That aside, it was defendant's common law duty to keep his own building from falling into plaintiff's excavation. Plaintiff's only duty was to support defendant's unburdened soil. The former was under no duty to support the latter's building. So, by as much as plaintiff has...