Hathaway v. Sioux City, 48248

• Court: United States State Supreme Court of Iowa
• Writing for the Court: SMITH
• Citation: 57 N.W.2d 228,244 Iowa 508
• Parties: HATHAWAY et al. v. SIOUX CITY et al.
• Docket Number: No. 48248,48248
• Decision Date: 10 March 1953

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57 N.W.2d 228 244 Iowa 508 HATHAWAY et al.
v.
SIOUX CITY et al. No. 48248. Supreme Court of Iowa. March 10, 1953.

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Thos. J. Griffin and Wm. A. Shuminsky, Sioux City, for appellants.

Robert B. Pike, Sioux City, for Strange Bros. Hide Co., appellant and cross-appellee.

A. H. Bolton, S. D. Crary, V. O. DeWitt, Frank Jacobs and Robert Crary, Sioux City, for appellees.

SMITH, Chief Justice.

Plaintiffs' properties (seven modern five to six room dwellings) are on an eminence known as Prospect Hill in Sioux City. To the south they overlook the Missouri River which flows easterly. First Street (also referred to as 'West First Street') runs east and west between them and the brow of the hill.

Defendant Strange Brothers Hide Company owns the lots immediately south of the street and extending thence down the south slope of the hill to the ground level and, except for intersecting railroad and highway right of ways, from there on south to the river. The ground from the foot of the hill south (a distance[244 Iowa 510] of about 150 yards) is comparatively flat. The main line tracks of the Chicago, Milwaukee, St. Paul and Pacific Railway are along or near the foot of the hill. And nearer the river the State Highway Commission was in 1948 building a highway, known in the Record as the 'River Road' and also as 'Gordon's Drive,' an extension of Primary Road No. 77, for which the city had agreed to furnish the necessary dirt filling.

'Combination Bridge' crosses the river into Nebraska at or near the southeast corner of the Strange Brothers property and defendant was building or had recently built a civic river-front auditorium in the vicinity. For these various purposes there was needed what the trial court described as a 'mountainous quantity of earth.'

An arrangement was made between defendants whereby defendant Strange Brothers Hide Company gave permission for removal of the necessary amount of earth from its property 'adjoining the west side of Combination Bridge and south of W. First Street.' The defendant City, by council resolution, agreed 'to save the Iowa State Highway Commission harmless from day damage to abutting property on or in the vicinity of First Street * * * in so far as such * * * Commission, its agents, employees, and contractors in the excavation of said borrow shall conform to the slopes established in the proposals * * *.' The 'proposals' referred to granted defendant city the 'right to borrow earth' from the Strange Company property 'to the top of the slope on the north of such tracts of land or the South line of 1st Street as now laid out, whichever extends farthest north. Such excavation to be cut 1/2 to 1 slope with the top of the slope on the north to be the south line of First Street or the present top of the slope' with some exception not material here. This means a slope that follows the hypothenuse of a right-angled triangle with a horizontal side of half a foot and a vertical side of one foot.

The taking of this tremendous quantity of dirt (almost 300,000 yards) necessitated a definite moving back of the foot of the bluff and a much steeper, more precipitous, slope on the south side of Prospect Hill

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than had been established by nature. The evidence shows the top soil was loess and the bottom clay. [244 Iowa 511] In places there was an 'exposure of sand' and some boulders. The resulting slides were inevitable.

The trial court observed that the engineers and the highway and city officials 'must at all times have been fully aware of the damages sure to accure to the people having property on the crest of Prospect Hill; that their decision to obtain the earth at this nearby locality was a calculated risk; and 'that considerations of haste and expediency prompted them to avoid condemnation or attempt to purchase plaintiffs' properties.'

There is ample evidence the excavation operations, by removing lateral support, caused earth slides which destroyed First Street adjacent to plaintiffs' properties. There was no evidence any of plaintiffs' properties were physically invaded but there was expert testimony that further cave-ins and slides would occur before a natural stability would be reached and that there was reasonable probability plaintiffs' properties would be so invaded. As frequently--perhaps inevitably--happens, the expert testimony was in conflict as to such future probability.

The case went to the jury under rulings that eliminated questions of negligence and based plaintiffs' right of recovery on the single proposition of 'loss of lateral support and consequent damage.' The instructions are not set out but we are told the jury was instructed 'that the lands of Strange Brothers owed support not alone to West First Street, which intervened, but also to the properties of plaintiffs on the north side of the street'; and also was permitted 'to take into account further subsidence reasonably certain to take place in the future.' There are shown no exceptions to instructions.

The jury returned verdicts--against both defendants--in varying amounts for the several plaintiffs and judgments were entered thereon. No motion for new trial was filed but defendants filed a motion for judgment notwithstanding verdict based on the refusal to direct verdict at the close of the evidence. Upon the overruling of this motion both defendants appeal, assigning it as the only error relied on.

Thereafter further proceedings, equitable in character, were had upon mutual cross-petitions, in which each defendant claimed a right over against the other for any judgment that [244 Iowa 512] might be rendered ultimately against it. For that purpose further pleadings were filed and evidence taken after which it was ordered and decreed that defendant city was primarily liable and that defendant Strange Brothers Hide Company have judgment against the city for any 'payment or payments which may be made by Strange Brothers Hide Company on the judgments entered herein in favor of the plaintiffs.' The defendant City cross-appeals from this decree but does not complain of the dismissal of its own cross-petition or claim here that Strange Brothers' liability was primary and its own secondary.

I. This hasty resume is sufficient to permit consideration of defendants' appeals from the judgments for plaintiffs. Defendants filed separate briefs. Both urged a verdict should have been directed because there was no actual physical invasion of plaintiffs' premises, defendant Strange Brothers arguing there had been no 'subsidence or disturbance of the soil or structural injury to the buildings'; and defendant City that there was no showing defendants have caused plaintiffs' 'soil to crumble or cave in under its own weight,' the only duty of the party causing the excavation being 'to prevent the adjoining land from falling.' They cite 2 C.J.S., Adjoining Landowners, § 8; 1 Am.Jur., Adjoining Landowners, § 44; 4 Restatement of Law of Torts, § 817, i.

If plaintiffs here had merely owned title to their respective premises, without any appurtenant right of ingress and egress over First Street, we would have to determine as to the correctness of the narrow limitation on the doctrine of lateral support contended for by defendants. Such determination might depend on whether we view the right to lateral support 'as in the nature of an easement subjecting the supporting land to a natural servitude';

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or as only a 'right to the integrity of the supporting land.'

In the former case, it has been said, the right would probably be violated by the mere removal of support; and intention to cause harm, negligence, or actual subsidence, would not be necessary to liability; while in the latter, subsidence or other actual harm would have to be shown. 4 Restatement, Torts, Introductory Note, pp. 185, 186. The cited...