Hannicker v. LePper

• Decision Date: 03 April 1906
• Citation: 107 N.W. 202,20 S.D. 371
• Parties: HANNICKER v. LEPPER et al.
• Court: South Dakota Supreme Court

20 S.D. 371

107 N.W. 202

HANNICKER

v.LEPPER et al.^a1

Supreme Court of South Dakota.

April 3, 1906.

Appeal from Circuit Court, Brown County.

Action by Lewis Hannicker against Casper Lepper and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.Taubman, Williamson & Herreid, for appellants. L. W. Crofoot, for respondents.

FULLER, P. J.

Plaintiff, the owner of a city lot and a two-story frame building situated thereon, brought this action against defendants to recover damages occasioned by their alleged negligence in excavating for the purpose of a building to be erected on a coterminous lot pursuant to a contract with the owner. The acts complained of are stated in the complaint as follows: “That on or about the 1st day of July, 1904, the defendants commenced work under said contract, and excavated said lot 1 to the depth of 10 feet, said excavation covering the entire width of said lot 1, and extending from Main street westward, beyond the rear of plaintiff's building on lot 2; and this plaintiff alleges that the said defendants performed their work under said contract in a negligent and unskillful manner, by making said excavation, and allowing the same to stand for a long period of time without constructing the foundation wall therein, or taking any reasonable precaution to sustain the land of the plaintiff's lot, and without putting any props or other supports under said plaintiff's building, but left the natural walls of dirt exposed for an unreasonable length of time to storms and rains and to floods of water shed from the adjoining building on to the walls of said excavation, whereby the south wall of said excavation became soft and caved into said excavation, carrying the dirt from said plaintiff's lot, and depriving the north sill of the plaintiff's building of the support of its foundation, whereby said sill settled and the entire building became racked out of shape, the timbers displaced and settled so that the said building could not be restored to its former condition, and the plastering and paper on the walls of said building were cracked and destroyed, the doors and windows twisted out of shape, and the building otherwise injured and damaged.” That the want of ordinary prudence and the exercise of reasonable care in making the excavation and building the wall would render the defendents liable to respond in damages to plaintiff for any injury occasioned to his building as well as to the land itself was the theory upon which the action was tried. Over the objection of counsel for defendants, testimony tending to show that the building was damaged by reason of the removal of adjacent ground and negligence in failing to build the foundation wall within a reasonable time was introduced at the trial and submitted to the jury under the following instruction which is urged as error: “The defendants had the right to make said excavation and had the right to remove the dirt from the full length and breadth of the Workman lot, and were not liable to plaintiff, providing they used ordinary care and skill to prevent unnecessary injury to the lot and building of plaintiff; the rule of law being that every man must so use his property as not to unnecessarily injure the property...