Davis v. Summerfield

• Decision Date: 25 November 1902
• Parties: DAVIS v. SUMMERFIELD et ux.
• Court: North Carolina Supreme Court

42 S.E. 818

131 N.C. 352

DAVIS v. SUMMERFIELD et ux.

Supreme Court of North Carolina

November 25, 1902

Appeal from superior court, Durham county; Neal, Judge.

Action by B. Davis against M. Summerfield and wife. From a judgment for plaintiff, defendants appeal. Affirmed.

An owner of land, who excavates by the side of his neighbor's wall to a depth lower than the foundation of the wall, is negligent for failing to notify the neighbor of the extent of his proposed plans, though the neighbor knew that he was going to excavate, and is liable for injuries to the wall caused by his excavations.

Winston & Fuller, for appellants.

Boone Bryant & Biggs, for appellee.

CLARK J.

This is an action for damages caused by depriving the soil under plaintiff's wall, of its lateral support, by negligence of the defendant while excavating for a new building on an adjoining lot. The right to lateral support has been before this court in Hammond v. Schiff, 100 N.C. 161, 6 S.E. 753, and the whole subject is discussed in the very full and elaborate notes to Larson v. Railroad Co. (Mo.) 19 S.W. 416, 16 L. R. A. 330, 33 Am. St. Rep. 446, 447. Another full consideration may be found in Jones, Easem. §§ 585-631. There was evidence that the defendant made his excavation two feet deeper than the bottom of the foundation of the plaintiff's wall, causing it to crack, and otherwise injuring the plaintiff's building. There was counter evidence, and the jury, as triors of the fact, found a verdict for the plaintiff, and assessed his damages at $225.

The exceptions presented on the appeal are very numerous, and were very fully and ably argued here, as doubtless they also were below. After careful consideration, we find no material error. The only new point, or proposition not heretofore decided, and the point perhaps most pressed on the argument is the following instruction, to which the defendant excepted: "While there is evidence that the plaintiff knew that the defendant was going to excavate and build, for she testified to that herself, still the defendant owed to her the duty, which is not an unreasonable one, to tell her of the extent of his proposed plan, so she might adopt measures for self-protection, if she chose to do so; and the court charges you there is no evidence that he gave proper notice to the plaintiff on the line above indicated. To give this notice involves no expense to the proprietor, and affords opportunity to the adjoining owner to protect his rights, for improvements made by one proprietor may be attended with disastrous results, even when prosecuted by competent workmen." We see nothing unreasonable or erroneous in this...