Keck v. Longoria, CA

• Decision Date: 28 June 1989
• Docket Number: No. CA,CA
• Citation: 28 Ark.App. 277,771 S.W.2d 808
• Parties: David KECK and Joan Keck, Appellants, v. Julian LONGORIA and Catherine W. Longoria, Appellees. 88-229.
• Court: Arkansas Court of Appeals

Page 808

771 S.W.2d 808

28 Ark.App. 277

David KECK and Joan Keck, Appellants, v. Julian LONGORIA and Catherine W. Longoria, Appellees.

No. CA 88-229.

Court of Appeals of Arkansas,

Division I.

June 28, 1989.

David Goldman, Hot Springs, for appellants.

Richard L. Slagle, Hot Springs, for appellees.

MAYFIELD, Judge.

Joan and David Keck appeal a decision of the Garland County Chancery Court granting judgment to the appellees on the pleadings.

The pleadings disclose that the appellants are the owners of a home in Hot Springs, Arkansas, and the appellees, Julian and Catherine W. Longoria, are the owners of a piece of property, adjacent to appellants' property, on which the Vapors Theatre and Restaurant is located. In 1960 the owners of the Vapors, predecessors in title to appellees, excavated a portion of their property near the parties' common boundary line in order to enlarge their parking area and building. No retaining wall was constructed and no immediate damage resulted to appellants' land.

On October 20, 1986, appellants filed suit against appellees contending that the "excavation has, over the past several years, and specifically during the past year, caused a crumbling and deterioration of the existing wall of rock and dirt which has resulted in a loss of foundation and stability" to appellants' home and, as a result of the excavation and subsequent deterioration, appellants' home now has no subjacent lateral support and is precariously perched on the top of a 65-foot cliff. The appellants originally sought money damages but subsequently amended their complaint and asked that the chancery court of Garland County "fashion an appropriate remedy based on the facts and circumstances of this particular case."

The appellees filed answers to the pleadings filed by appellants and subsequently filed a motion for judgment on the pleadings. In response to that motion and pursuant to Ark.R.Civ.P. 12(c), appellant Joan Keck submitted an affidavit in which she stated that after the excavation in approximately 1960, the appellants had no problem for several years. "However, during the past two (2) years erosion has become so bad that the house now sits on the edge of a drop of approximately seventy-five (75) feet and the house has had to be shored up by B & F Engineering Company." The affidavit contains some specific details and these conclusions: "I am afraid the house is going to fall and I fear for the safety of my family and myself. It is apparent that the adjacent property offers no support to my property and that is why I have brought this action."

In granting judgment on the pleadings, the chancellor issued a letter opinion stating that he had reviewed the law in Arkansas and other states and concluded as follows:

My decision is based upon a review of both Arkansas law and the authorities of other states. The general rule appears to be well established in all jurisdictions that a property owner is entitled to the continued subjacent lateral support of his neighbor's property, and the neighbor who excavates his property so as to remove the subjacent lateral support becomes liable for the resulting damages. Some Courts have also imposed liability on a subsequent land owner who negligently allows substituted artificial lateral support (retaining wall) to deteriorate through lack of maintenance or repair. Arkansas is included among such Courts. Urosevic v. Hayes, 267 Ark. 739, 590 S.W.2d 77 ( [Ark.App.]1979). The Court found one jurisdiction, Colorado, which has imposed liability on a subsequent land owner whose predecessor caused excavation to be performed, constructed no retaining wall and the adjacent property owner was damaged. Gladin v. Von Engeln, 575 P.2d 418 (1978). Standing alone, this case clearly represents a minority view.

In Urosevic v. Hayes, 267 Ark. 739, 590 S.W.2d 77 (Ark.App.1979), cited by the chancellor in his letter opinion, this court said:

The Arkansas Supreme Court apparently has not had occasion to pass upon this type issue; however, it is a well settled common law doctrine that the owner of land has the right to the lateral support of his soil in the natural state, and the law provides recourse for violation of this right.

267 Ark. at 741, 590 S.W.2d 77. After citing authority to support the above statement, we then stated:

The rule does not preclude a landowner from excavating upon his land, but he owes a continuing duty to protect an adjoining landowner's property when the excavation removes lateral support. It is his duty to provide an artificial support if the conditions so require. 2 C.J.S. Adjoining Landowners, § 15. This duty extends to successive owners of the land that has been excavated. Gorton v. Schofield, 311 Mass. 352, 41 N.E.2d 12 (1942); Braun v. Hamack, 206 Minn. 572, 289 N.W. 553 (1940); Lyons v. Walsh, 92 Conn. 18, 101 A. 488 (1917). The duty is absolute and is not predicated upon negligence. Williams v. Southern Railway Co., 55 Tenn.App. 81, 396 S.W.2d 98 (1965); and Levi v. Schwartz, 201 Md. 575, 95 A.2d 322 (1953).

267 Ark. at 741-42, 590 S.W.2d 77.

Although the appellants rely upon the language in the above quoted paragraph, the cases cited there support the decision reached in Urosevic and that decision, as noted by the trial judge, is the general rule. In Urosevic, the appellant's predecessors in title had excavated their property and built a brick wall along the boundary line of the adjacent property, then owned by the appellees' predecessors in title. After the appellant and appellees purchased their respective properties, the brick wall was struck by lightning and a portion of the wall collapsed causing the erosion of some of the appellees' lands. The trial court held that while the lightning was not the fault of either party, the subsidence of the appellees' lands would not have occurred but for the excavation that had previously been made upon appellant's land. However, the court held that additional pressure on the retaining wall was created by some fill having been placed to the wall on the appellees' lands. So, the chancellor balanced the equities and required the appellant to bear half the cost of restoring the wall and the appellees to bear half the cost. This court affirmed the chancellor saying that equity had the power and duty to devise a remedy appropriate to the circumstances of the case.

The controlling factor that distinguishes Urosevic from the present case is...