City of Covington v. Geylor

• Decision Date: 02 June 1892
• Citation: 93 Ky. 275,19 S.W. 741
• Parties: City of Covington et al. v. Geylor et ux.
• Court: Kentucky Court of Appeals

19 S.W. 741

93 Ky. 275

City of Covington et al. v. Geylor et ux.

Court of Appeals of Kentucky.

June 2, 1892

Appeal from circuit court, Kenton county.

"To be officially reported."

Action by Frederick Geylor and wife against the city of Covington and others. Judgment for plaintiffs. Defendants appeal. Reversed.

LEWIS J.

Appellees Frederick and Elizabeth Geylor, husband and wife, being joint owners of a lot of land on Main street, Covington, erected thereon a brick dwelling house, the north wall of which was three inches from their line, and under which was a cellar seven feet in depth, though dug only five feet below the surface of the ground. Subsequently appellant the city of Covington, being owner of an adjacent lot, made a contract with appellant Eisile for construction of an engine house thereon, under which was to be a cellar seven feet below the surface of the ground, and excavated up to the north line of appellees' lot. Appellees brought this action against them jointly for damages; it being stated substantially in the petition that Eisile, under direction and supervision of the agents, employes, and officers of the city of Covington in excavating the cellar for said engine house, wrongfully and with willful negligence, and without knowledge of appellees, dug below and along their wall the entire length of the north edge of their lot, undermining the foundation of their house, and for a long space of time left the excavation uncompleted, whereby their north wall settled, and the whole house dropped and leaned northward, the walls being cracked window sills broken, etc.

The first question naturally arising on this appeal is whether the city of Covington can be made liable at all. In Robinson v. Webb, 11 Bush, 464, where the action was, like this, for damages on account of injury to adjacent lot against the owner and building contractor jointly, the general rule was thus stated: "When the relation of an independent contractor exists as to the use of real property and the party employed is skillful in performance of the duty he undertakes, and the thing directed to be done is not in itself a nuisance, or will not necessarily result in a nuisance, the injury resulting not from the fact that the work is done, but from the negligent manner of doing it by the contractor or his servants, the owner cannot be made to respond in damages." It is not stated in the petition in this case that Eisile, the contractor, was unskillful in performance of the duty he undertook; nevertheless it seems to us his relation to the city of Covington can be hardly regarded that of an independent contractor, for it is not only alleged that he was under direction and supervision of the agents, officers, and employes of the city of Covington, but it was in terms stipulated in the contract between them that the work was to be done by him "under direction of the committees of the fire department and public buildings representing the city council of said city, who shall have entire control over the manner of doing or shaping all and every part of said work." Moreover, it was made cause of complaint that the excavation was extended beyond division line of the two lots, and the strip of three inches between the wall and line removed without consent of appellees, which act involved a trespass that the city of Covington, as well as Eisile, acting under its direction and authority, would be prima facie liable for to the extent of nominal damages at least. It is well settled that the owner of land has no right to remove or disturb even his own soil so as to withdraw the natural support of adjacent land belonging to another. But when, by erection of a...