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 |
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:
And, on the prayer of the defendant, the court gave the following instructions to the jury:
The defendant then asked the following instructions, which the court refused to give, and the defendant excepted:
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. 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. 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...
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Johnson v. City of St. Louis
...and are commonly styled damna absque injuria. Transportation Company v. Chicago, 99 U.S. 635, 645, 25 L.Ed. 336; Charless v. Rankin, 22 Mo. 566, 571, 66 Am.Dec. 642; Gilmore v. Driscoll, 122 Mass. 199, 23 Am.Rep. McGrath v. City of St. Louis, 215 Mo. 191, 114 S.W. 611, 618. But counsel for ......
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Carpenter v. Reliance Realty Co.
... ... for the reason that same is an attempt to exercise a ... legislative function not delegated to-municipal corporations ... Charles v. Rankin, 22 Mo. 560; Busby v ... Holthaus, 46 Mo. 161; Victor Mining Co. v. Mining ... Co., 50 Mo.App. 529; Partridge v. Scott, 3 Mees & ... ...
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