Gilmore v. Driscoll
Decision Date | 07 March 1877 |
Citation | 122 Mass. 199 |
Parties | Anne Gilmore v. James Driscoll |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued March 7, 1876
Suffolk. Tort for injuries to the plaintiff's land by the excavation of adjoining land by the defendant.
The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, on an agreed statement of facts as follows:
Upon the foregoing facts, the court was to enter such judgment as it should deem proper.
Judgment for the plaintiff for $ 95.
P. E. Tucker, for the plaintiff.
C. H. Drew, for the defendant.
The right of an owner of land to the support of the land adjoining is jure naturoe, like the right in a flowing stream. Every owner of land is entitled, as against his neighbor, to have the earth stand and the water flow in its natural condition. In the case of running water, the owner of each estate by which it flows has only the right to the use of the water for reasonable purposes, qualified by a like right in every other owner of land above or below him on the same stream. But in the case of land, which is fixed in its place, each owner has the absolute right to have his land remain in its natural condition, unaffected by any act of his neighbor; and, if the neighbor digs upon or improves his own land so as to injure this right, may maintain an action against him, without proof of negligence.
But this right of property is only in the land in its natural condition, and the damages in such an action are limited to the injury to the land itself, and do not include any injury to buildings or improvements thereon. While each owner may build upon and improve his own estate at his pleasure, provided he does not infringe upon the natural right of his neighbor, no one can by his own act enlarge the liability of his neighbor for an interference with this natural right. If a man is not content to enjoy his land in its natural condition, but wishes to build upon or improve it, he must either make an agreement with his neighbor, or dig his foundations so deep, or take such other precautions, as to insure the stability of his buildings or improvements, whatever excavations the neighbor may afterwards make upon his own land in the exercise of his right.
In 2 Rol. Ab. 564, it is stated that in Wilde v. Minsterley, in 15 Car. I., it was decided in the King's Bench, after a verdict for the plaintiff, that
In the same court, in 15 Car. II., Justices Twisden and Windham said that it had been adjudged that, "if I, being seised of land, lease forty foot thereof to A. to build a house thereon, and other forty foot to B. to build a house, and one of them builds a house, and then the other digs a cellar in his land, whereby the wall of the first house adjoining falls, no action lies for that, because each one may make the best advantage of his digging;" "but it seemed to them that the law is otherwise, if it was an ancient wall or house that falls by such digging." Palmer v. Fleshees, 1 Sid. 167. In another report, the corresponding statement is, that "it was adjudged that two having ground adjoining, the one built de novo, and the other in his ground digged so near, that the other fell, and no remedy, the house being new." Palmer v. Flessier, 1 Keb. 625. That adjudication is referred to in Siderfin as "7 Jac. in Pigott and Surie's case," and in Keble as "7 Car." But Sury v. Pigot, decided in 1 Car. I., and fully reported in Popham, 166, was upon another point, and is so stated in Keble, ubi supra; and it would seem that the reference intended may have been to the case of Wilde v. Minsterley, above cited.
There are indeed two or three early cases, in which actions appear to have been sustained for undermining houses by digging on adjoining land. Slingsby v. Barnard, 14 Jac. I., 1 Rol. R. 430. Smith v. Martin, 23 Car. II., 2 Saund. 400. Barwell v. Kensey, 35 Car. II., 3 Lev. 171; S. C. 1 Mod. Entr. 195. But in Slingsby v. Barnard, and in Smith v. Martin , the objections made were not to the right to maintain the action, but only to particulars in the form of the declaration; and in Barwell v. Kensey, the declaration, as construed by the majority of the court, alleged not merely digging near the plaintiff's foundation, but digging that foundation itself.
In Tenant v. Goldwin, 2 Ld. Raym. 1089, 1094, Lord Holt and Justice Powell are reported to have "held that a man cannot build so near another man's house as to throw it down." But the only point adjudged was the same as in Ball v. Nye, 99 Mass. 582, that a man is bound, of common right, to keep a vault upon his own land in repair, so that the filth shall not flow upon his neighbor's land, "for he whose dirt it is must keep it that it may not trespass." S. C. 1 Salk. 360, 361; 6 Mod. 311; 1 Salk. 21; Holt, 500. And upon a comparison of the various reports it is evident that the digging so near another's wall as to weaken it was not spoken of as giving a right of action to the owner of the wall, but as limiting his liability for the escape of filth caused by the new digging.
The latest and the most authoritative statement of the law of England upon this point before the American Revolution is that of Chief Baron Comyns, who, citing Rolle's Abridgment and Siderfin's Reports, ubi supra says that an action upon the case lies for a nuisance, "if a man dig a pit in his land, so near that my...
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