Gildersleeve v. Hammond
| Decision Date | 26 May 1896 |
| Court | Michigan Supreme Court |
| Parties | GILDERSLEEVE v. HAMMOND ET AL. |
Error to circuit court, Calhoun county; Clement Smith, Judge.
Action by Mary I. Gildersleeve against Julia Hammond and another. There was a judgment for plaintiff, and defendants bring error. Affirmed.
Plaintiff and defendants were the owners of adjoining lots in Battle Creek, situated in the business part of the city. Plaintiff had, several years ago, erected a building upon her lot, the lower part of which was occupied as a store by a tenant, and the upper portion by other tenants. Plaintiff had no cellar underneath her building, and it stood upon a stone wall sunk into the earth to a depth of from 20 to 24 inches, and from 12 to 18 inches above the surface, and built sufficiently strong to support the structure above it, which was a balloon frame veneered with brick. It had stood there in safety for several years. It was built 4 1/2 feet from the division line between their lots. Defendants' lot was at that time vacant. In 1893 the defendants, desiring to erect a building upon their lot, with a cellar underneath, proceeded to excavate for that purpose to the depth of between 7 and 8 feet, close to the line. The soil was sandy and gravelly with little adhesive power, and, as the excavation went down plaintiff's soil caved into the excavation. Defendants took no steps to prevent the soil from caving in, or to protect plaintiff's building. They excavated the whole length of the building, permitting the soil to cave in according to its natural tendency. It had fallen away from underneath the foundation wall. In consequence of this the foundation under plaintiff's building was undermined, and a portion of the side of the building fell out, causing considerable damage. The defendants were cognizant of the danger. So, also, was the plaintiff, whose evidence supported the claim that defendants promised to protect her building. This is an action upon the case, to recover damages for injury. The declaration alleges that "it is the duty of the defendants to use due and reasonable care and diligence and to excavate on their said premises in a careful skillful, and prudent manner, and to use all proper means, and to take and exercise all reasonable precautions, to keep the soil from caving away and from sliding off from said premises into said excavation, and to avoid weakening or undermining the foundation of said building, and from injuring her said lands, and from destroying the walls, and from injuring the buildings aforesaid thereon situated, and to prevent all unavoidable interference in the use and occupation thereof, and to save the plaintiff from loss and permanent injury to the premises." Verdict and judgment were for the plaintiff.
Hulbert & Mechem, for appellants.
L. E. Clawson and Fred M. Wadleigh (John C. Patterson, of counsel), for appellee.
GRANT, J. (after stating the facts).
The precise questions involved appear not to have been decided by this court. The questions are: (1) What rights does a landowner possess, in excavating close to his neighbor's line? (2) What duty does he owe to his neighbor, and what means, if any, must he take to protect the soil of his neighbor and prevent it from caving in? (3) Under what circumstances, if any, is such landowner responsible for damages to the superstructure erected on his neighbor's lot? The defendants' positions are thus summarized: (1) Plaintiff's building was in a business part of the city. She was therefore bound to know that improvements would be made upon the adjoining vacant lot, and was bound, in law, to so construct her building as to allow such improvements to be made in the ordinary way. (2) They admit that plaintiff was entitled to the natural right of lateral support for her land from the adjoining land, and, if her land fell in consequence of such excavation, she had an action against the defendants, although the excavating was not done carelessly or unskillfully. (3) This natural right does not extend to the artificial structures placed upon the land, and, if the plaintiff erected her house on or near the verge of her land, she had no natural right of lateral support for the building. Plaintiff bases her claim upon the familiar legal maxim, "Sic utere tuo ut alienum non l�das," insisting that this maxim applies to the case where one may, by the exercise of ordinary care and prudence, so use his own as not to cause injury to another. The court instructed the jury as follow: "The adjacent owner may excavate his own land for such lawful purposes as he sees fit, provided he digs with ordinary care; and if in so doing the earth gives way, and a house upon the adjacent land falls by reason of the additional weight placed upon the natural soil, he is without remedy, provided the adjacent owner used ordinary skill, care, and diligence in digging the excavation, and has used reasonable means to protect the adjacent lands and buildings from falling into the excavation." This was the groundwork of the charge, and we need not state it more fully.
The defendants' first proposition is undoubtedly a correct statement of the law. Chancellor Wallworth, in Lasala v. Holbrook, 4 Paige, 169, thus states the rule: "I cannot deprive him [my neighbor] of this right by erecting a building on my lot, the weight of which will cause my land to fall into his pit, which he may dig in the proper and legitimate exercise of his previous right to improve his own lot." Non sequitur that the excavator may dig his pit so close to his neighbor's line that his adjacent land will fall into it, and, as it falls, draw it away, and continue this process until several feet in width have caved off, and undermined a building several feet from the line. Clearly it was not, in this case, the pressure of the building upon the adjacent land that caused the soil to cave. The soil would have caved in, had there been no building. The caving process began almost simultaneously with the digging. Had the soil been sufficiently adhesive to leave a perpendicular surface as the excavation was made, the building would not have caused it to fall. At least, there is no evidence that it would. Therefore the pressure of the soil did not cause the soil to cave in, but the removal of the plaintiff's soil, between the division line and his foundation wall, caused the building to fall. The distinction between the two cases, and the principles governing them, is apparent.
The defendants' second position is conceded to be the law. It is also the well-established rule that a superstructure is not entitled to the lateral support of the adjoining land and that a landowner may remove such support for all legitimate purposes. The authorities cited by the defendants fully support this position. 2 Washb. Real Prop. 380; Lasala v. Holbrook, 4 Paige, 169; Dorrity v. Rapp, 72 N.Y. 307; Ketcham v. Newman, 141 N.Y. 205, 36 N.E. 197; Gilmore v. Driscoll, 122 Mass. 199; Schultz v. Byers (N. J. Err. & App.) 22 A. 514; Charless v. Rankin, 22 Mo. 566; Eads v. Gains, 58 Mo.App. 586; Larson v. Railway Co. (Mo. Sup.) 19 S.W. 416. In order to maintain an action for injury to the adjoining land in consequence of an excavation made by the adjacent owner, no negligence is necessary. Every man is entitled to the enjoyment of his land in its natural state, and any removal of it by excavating the adjoining land is a wrong, per se, for which the law gives damages. It would seem to follow naturally that in such excavations the landowner is bound to the exercise of some degree of care to prevent the soil from caving in. If the soil is adhesive, so that it will remain in its natural position with the lateral support removed, obviously the excavator may excavate as deep as he pleases,-even close to the boundary line. If in such case his neighbor's land caves in by reason of the pressure of the superstructure upon it, it is damnum absque injuria. But is this true of a sandy, gravelly soil? Most of the authorities above cited recognize the duty of the excavator to use reasonable care in the performance of his work. Washburn says, at the page above cited, "Such adjacent owner may excavate his own land for such purposes as he sees fit, provided he does not dig carelessly or negligently." In Dorrity v. Rapp it is said, "The owner of land, in making an excavation on his premises which may endanger a building on his neighbor's land, is bound to be reasonably careful in the prosecution of the work, and is liable for injury to his neighbor's property resulting from his negligence." Similar expressions are found in nearly all the authorities cited, and in Eads v. Gains the court say, "The law is universal that, for the injury caused to a building by an excavation performed without ordinary care, the excavator is responsible." See, also, City of Quincy v. Jones, 76 Ill. 231, in which, at page 241, the court lays down the law as follows: "If injury is sustained to a building in consequence of the withdrawal of the lateral support of the neighboring soil, when it has been withdrawn with reasonable skill and care to avoid unnecessary injury, there can be no recovery; but, if injury is done the building by the careless and negligent manner in which the soil is withdrawn, the owner is entitled to recover to the extent of the injury thus occasioned." So, in Washb. Easm., at page 582, the editor thus states the principle: ...
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