Charles v. Rankin

• Citation: 22 Mo. 566
• Parties: CHARLES, Respondent, v. RANKIN, Appellant.
• Decision Date: 31 March 1856
• Court: United States State Supreme Court of Missouri

22 Mo. 566

CHARLES, Respondent,

v.RANKIN, Appellant.

Supreme Court of Missouri.

March Term, 1856.

1. Although every proprietor of land has a right to the support of the soil of an adjacent lot, as a natural servitude or easement, yet this servitude does not impose upon the adjoining proprietor the obligation of furnishing an increased support where lateral pressure is increased by the erection of buildings, unless such a right of servitude has been conferred by grant or the lapse of time.

2. Where excavations are made upon one of two contiguous lots, the proprietor making the same will be responsible for all damage caused to buildings or other property upon the adjoining lot by reason of such excavation having been negligently made.

3. It is however erroneous to rule that the proprietor having the excavating done is bound to use such care and caution as a prudent man, experienced in such work, would have exercised, if he had himself been the owner of the injured building. Such a ruling tends to mislead, as one who is proprietor of both the contiguous lots might very prudently subject himself to expense and inconvenience for the protection of his building, that could not justly be imposed upon one making excavations upon an adjoining lot belonging to him.

4. The excavator can not set up as a defence that he used such care as his builder and superintendent, a skillful and careful person, deemed necessary. The decisive question is, whether there was actual negligence in making the excavation.

Appeal from St. Louis Circuit Court.

This was an action to recover damages for injuries alleged by plaintiff, Joseph Charless, in his petition to have been sustained by him in consequence of the “negligent, unskillful and improper manner” in which defendant, David Rankin, made certain excavations upon a lot adjoining that of plaintiff, which, by undermining the foundations of plaintiff's building, caused the walls thereof to fall.

The defence set up was substantially a denial of the negligence alleged in the petition.

It is deemed wholly unnecessary to set forth the evidence bearing upon the point at issue, as the questions of law discussed and decided, can be fully understood from the instructions given and refused by the court below.

On motion of the plaintiff, the court gave the following instructions to the jury, to the giving of which the defendant excepted: “If the jury believe from the evidence that the digging for the foundation of defendant's building was performed in a reckless, negligent, or improper manner, and that by reason thereof plaintiff's house was thrown down, then plaintiff is entitled to recover such damage as he has sustained by the throwing down of his house. 2. If the jury believe from the evidence, that the fall of plaintiff's building might have been prevented by the exercise of reasonable care and skill on the part of those who were digging defendant's cellar, and that, owing to their failure to exercise such care and skill, damage resulted to plaintiff's building, then plaintiff is entitled to recover in this action such an amount of damages as he may prove he has sustained by the fall of his building. 3. In excavating by the side of another's building, it is the duty of the person having the excavating done to use such care and caution, to prevent injury to such building, as a sensible and prudent man, experienced in such work, would exercise, if he were the owner of the building; and the omission of such care and caution is culpable negligence, and renders the person having the excavating done liable for all the damages resulting therefrom. 6. The measure of damages in this case is the amount of money required to rebuild plaintiff's house as it was before the fall, and the value of the house thrown down to plaintiff during the time necessarily taken to rebuild it, with the interest on those amounts from the time when the house was completed, after its fall, to the present time.”

And, on the prayer of the defendant, the court gave the following instructions to the jury: “2. In order to find for the plaintiff, the jury must find, not only that the falling of plaintiff's wall was occasioned by the digging of defendant's cellar, but also that such digging was done in a negligent or unskillful manner, which negligence or unskillfulness caused the plaintiff's wall to fall down. 3. If the jury believe from the evidence, that but for the rain which fell the night preceding the fall of plaintiff's wall, the said wall would not have fallen down, they ought to find for the defendant, if defendant omitted no proper precaution to guard against the rain; or, if the jury find that the plaintiff's wall, either because it was built upon an insufficient foundation, or of defective materials, or of insufficient thickness, or in a negligent or unskillful manner, and but for such defect or defects in construction, or materials, would not have fallen, they ought, in either such event, to find for the defendant.”

The defendant then asked the following instructions, which the court refused to give, and the defendant excepted: “1. If the jury find that the defendant, in excavating his cellar, dug a proper depth, and entirely on his own land, the plaintiff can not recover. 4. If the jury find from the evidence, that defendant had employed a superintendent and architect to oversee and control and manage the erection of his building, and to erect the same, which architect and superintendent was skillful, experienced, careful, and competent to the purpose, and that all the care and precaution that said architect and superintendent judged sufficient to protect plaintiff's wall was used for that purpose, they ought to find for the defendant.”

T. Polk, for appellant.

1. If the defendant's excavation would not have caused the land of the plaintiff, on which his house stood, to fall in if it had no building upon it, but had remained in its natural state, the plaintiff was not entitled to recover. (Thurston v. Hancock, 12 Mass. 220; 9 Barn. & Cress. 725; Wyatt v. Harrison, 3 Barn. & Adol. 871; Losala v. Holbrook, 4 Paige's Ch. R. 173; Hyde v. Thornburgh, 2 Car. & Kir. 251.) 2. Further, if the defendant (Rankin) dug exclusively upon his own soil, and in nowise encroached upon the plaintiff's premises, the plaintiff had no right to recover against him. (2 Rolle's Abr. 564-5; 1 Com. Dig. action on the case for nuisance, 420.) 3. The fourth instruction prayed by the defendant, and which the Circuit Court refused to give, does assert that the principal is not liable for the negligence of his servants and agents, as the court below seemed to understand it, but that the facts stated in the instruction preclude the possibility of any negligence or unskillfulness on his part, and make a case of care and caution that put him beyond the possibility of a recovery in this action. (See case of Hart v. City of Philadelphia.) In an action for malicious arrest, or malicious prosecution even, it is a good defence to the action that the defendant followed the advice of competent counsel, asked and given in good faith, upon a full statement of the facts. (Blunt v. Little, 3 Mason, 102.)

Strong and Drake, for respondent.

1. The right of an owner of land to the enjoyment thereof is qualified by the rights of others. The maxim of the law is, “ sic utere tuo, ut alienum non lædas.'DD' (Sedg. on Dam. 138; Hays v. Cohoes Co. 2 Comst. 159, 163.) 2. If plaintiff's building was thrown down by the negligent or unskillful manner in which defendant's servants dug his cellar, or by the omission on their part of reasonable and proper care and skill, in order to prevent the injury, then plaintiff is entitled to recover. (2 Stephens' Nisi Prius, 1011, 1012; 3 Kent's Com. 437 and note b.; Vaughn v. Menlove, 3 Bingh. N. 568; Trown v. Chadwick, Id. 334, 353-4; Jones v. Bird, 5 Barn. & Ald. 837, 848; Tuberville v. Stamp, 1 Selk. 13; Roberts v. Read, 16 East, 215; Boughton v. Carter, 18 J. R. 405; Dodd v. Holme and others, 3 Neville & Manning, 739; 1 Adolph. & Ellis, 493; Clare v. Foote, 8 J. R. 421; Pantan v. Holland, 17 J. R. 92, at p. 100, 101.) 3. A person obstructing a public way, or using a privilege, will be held liable for all the damage resulting from his conduct, unless he use more than ordinary care to prevent injury. (Nelson v. Godfrey, 12 Ill. 20; Clarke v. Lake, Scam. 2 Ill. 219, p. 231.) While every man has the reasonable and proper use of his own property, he can not be, and ought not to be exempt from liability for damages resulting from...