Busby v. Holthaus

• Decision Date: 31 March 1870
• Citation: 46 Mo. 161
• Parties: JOHN BUSBY, Appellant, v. ANTON HOLTHAUS et al., Respondents.
• Court: Missouri Supreme Court

46 Mo. 161

JOHN BUSBY, Appellant,

v.ANTON HOLTHAUS et al., Respondents.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

H. B. O'Reilly, for appellant.

Hitchcock & Lubke, for respondents.

BLISS, Judge, delivered the opinion of the court.

Defendants excavated a cellar up to the back line of plaintiff's lot. Less than four feet from this line was a row of brick privies for the accommodation of the tenement houses belonging to the plaintiff, and under the privies and parallel to the edge of the cellar ran a brick sewer communicating with the large sewer in the street. A few days after the cellar was dug, the bank caved in, the sewer burst, and the water, etc., ran into the cellar. The case was tried on appeal from the judgment of a justice of the peace, and was submitted to the court sitting as a jury, the plaintiff claiming that the sliding in of the bank and bursting of the sewer was caused by the excavation and removing of the support to which the plaintiff's lot was entitled; and the defendants, on the other hand, claiming that it was the result of the weight of the privies and the obstructions in the sewer which dammed up the water and caused the sewer to burst.

The plaintiff had a right to a support from the adjoining soil for his land in its natural state, and if the slide was not caused by the pressure of his buildings or by his sewer, and if the slide caused the bursting of the sewer, he is entitled to recover. The opinion of Judge Leonard in Charless v. Rankin, 22 Mo. 566, is a learned and able discussion of the law involved in this case, rendering comment upon the general law quite unnecessary. And I will only consider the one declaration which was asked by the plaintiff and refused, which is as follows: “If the court, sitting as a jury, believe from the evidence that defendants excavated a cellar some six feet deep, and twenty-five feet or more along and up to the place of division between the respective lots of plaintiff and defendants; that the plaintiff's land was in its natural state, save that a sewer (with privies connected) had been constructed by plaintiff 3 1/2 feet distant from and parallel to the place of division aforesaid, and at a depth of an average of five feet below the surface; that defendants had taken no precaution to prevent a caving of plaintiff's land into their cellar, and that the clay and earth, some twenty feet in length and three to four in width along said plane of division, did cave...