Lapp v. Guttenkunst

• Decision Date: 01 March 1898
• Citation: 44 S.W. 964
• Parties: LAPP v. GUTTENKUNST.
• Court: Kentucky Court of Appeals

44 S.W. 964

LAPP v. GUTTENKUNST.

Court of Appeals of Kentucky.

March 1, 1898

Appeal from circuit court, Jefferson county.

"Not to be officially reported."

Action by Theodore Lapp against Jacob Guttenkunst. Judgment for defendant. Plaintiff appeals. Reversed.

James W. R. Smith and R. C. Davis, for appellant.

James C. Poston, for appellee.

WHITE J.

The appellant, Theodore Lapp, owns a lot on the northwest corner of Market and Nineteenth streets, in the city of Louisville Ky. being 20 feet wide on Market, and extending 120 feet on Nineteenth street. The appellee owns a lot adjoining and west of appellants, and same size, 20x120 feet. Appellant, some years ago, erected on his lot a two-story brick storehouse with a cellar 8 feet deep. The walls of the cellar and foundation of the storehouse were of stone, and were the full width of the lot, and extended back 40 feet. In 1893 the appellee began to erect on his lot, immediately on the west of and adjoining the lot of appellant, a brick building. In erecting his building, appellee dug a cellar and excavated the earth on his lot the full width of same and for a greater depth than appellant had done, possibly 2 feet deeper. When this earth had been removed, it was discovered that appellant's outside wall projected-the rough stone-over the line, and this appellee broke off. Immediately following this excavation by appellee, the wall of appellant cracked, and gave way, and was rendered unsafe, so that appellant took it down and rebuilt same. For this damage to the wall, appellant brought this action in the Jefferson circuit court, alleging that appellee was negligent in the excavation made, and in removing the earth lower than appellant's wall, and in removing the projecting portions of the stone wall, and alleged specific damage in a sum total of $1,068. The answer admitted the excavation to a depth of 12 inches below appellant's wall, and denied all negligence, either in the excavation, or in removing the projecting stone, or in any way, and denied that by reason of any negligence of appellee, or of his employés, or at all, appellant was damaged in any sum whatever. In a separate paragraph, the appellee pleaded that on February 8, 1893, and before any excavations were made or striking or hammering done to remove the projecting stone, he gave appellant a notice in writing that on the 22d day of February, 1893, he would proceed to make the excavations to a depth of at least 8 1/2 feet, and extending back 72 feet; and appellee alleges that not prior to March 13, 1893, did he proceed to make the excavations referred to in the notice, and affirmatively pleads that all the work was done with skilled labor, and without any negligence or carelessness whatever. Appellee admitted removing the projecting stone, which was done after the 22d day of February, and not before March 13th, and that this was done in a careful, prudent and skillful manner, and that appellant promised and agreed to pay him for so doing the sum of $30, and this he pleads as a counterclaim. Appellee alleged that,...