Levi v. Schwartz

• Decision Date: 12 March 1953
• Docket Number: No. 80,80
• Citation: 201 Md. 575,95 A.2d 322,36 A.L.R.2d 1241
• Parties: , 36 A.L.R.2d 1241 LEVI et al. v. SCHWARTZ et al.
• Court: Maryland Court of Appeals

Page 575

201 Md. 575

95 A.2d 322, 36 A.L.R.2d 1241

LEVI et al. v. SCHWARTZ et al.

No. 80.

Court of Appeals of Maryland.

March 12, 1953.

Rehearing Denied April 21, 1953.

Nathan Patz, Baltimore (Jack L. Grossman, Baltimore, on the brief), for appellants.

Charles G. Page, Baltimore (Stewart Brown, Baltimore, on the brief), for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

This suit was instituted in the Baltimore City Court by Sophie B. Schwartz, administratrix of the estate of Elizabeth T. Schwartz, deceased, and by Sophie B. Schwartz individually and Mary S. Ewashen, and her husband, Dmytri Ewashen, against Edgar A. Levi and Keystone Homes, Inc., a development company, of which he is president, to recover damages caused by excavation to a lot of ground at 813 Bradhurst Road.

The lot is a part of a tract containing eighteen acres, known as the Anchorage, and is completely surrounded by the other land in the tract. The lot, which measures 125 feet by 122 feet, is improved by a bungalow built some years ago by the owner, Clara B. Benninghaus, for Mrs. Schwartz. Access to the bungalow was afforded by a private road from Harwood Avenue. Mrs. Benninghaus, who died in 1944, devised the lot to Mrs. Schwartz.

In January, 1946, Levi purchased all of the tract, except the lot in question, from the executor of Mrs. Benninghaus' estate. Mrs. Schwartz joined in the deed to waive her rights to the use of the streets and rights of way in the tract, subject to the proviso that Levi would lay out along the north line of the lot a street (now Bradhurst Road) not less than 40 feet wide, the south side of the street to coincide with the north line of the lot, and a right of way (now Alhambra Avenue) 40 feet wide from that street to Benninghaus Road or Harwood Avenue for the use of Mrs. Schwartz. Levi conveyed the tract in September, 1946, to Keystone Homes, Inc., hereinafter called the developer.

The developer's engineer, Albert E. Pohmer, discussed the plans of development with the City Planning Commission. The plans adopted by the Commission called for considerable excavation around the lot for the beds of Bradhurst Road and Alhambra Avenue. The developer thereupon engaged Ehrhardt & May, Inc., to do the excavating. Stakes were placed by the engineer on the north side of Bradhurst Road and the west side of Alhambra Avenue for the guidance of the excavator. The excavator also received grade sheets showing the excavation required.

The excavation proceeded northward from Harwood Avenue up what is now Alhambra Avenue, stopping in the spring of 1947 south of what is now the alley between Bradhurst Road and Beaverbrook Road. In the summer of 1947 the developer gave the excavator permission to take some of the soil out of Alhambra Avenue near the alley. Plaintiffs claim that the excavator removed some soil from the southwest corner of their lot. Several months later the excavation proceeded on Alhambra Avenue to Bradhurst Road, and then eastwardly on Bradhurst Road beyond the lot. The alley in the rear of the lot was completely excavated in the early part of 1949. Thus the streets were finally excavated in accordance with the prescribed grades and were connected with Benninghaus Road and Harwood Avenue.

In December, 1947, plaintiffs inherited the lot from their mother. They instituted suit in November, 1949, alleging that defendants had unlawfully entered their lot and from it had excavated and removed soil which constituted the support of its front, sides, and rear, so that the property has become subject to washing and other damage from the elements.

The first trial of the case was held in June, 1951, before Judge Manley and a jury. At that trial the jury awarded plaintiffs $3,500, but, upon their refusal to file a remittitur reducing the verdict to $2,500, the Court set it aside.

The case was tried the second time in March, 1952, before Judge Niles and a jury. At that trial the jury rendered a verdict in favor of plaintiffs against both defendants for $11,511. From the judgment thereon defendants appealed to this Court.

First. Defendants contend that the deed from the executor of Mrs. Benninghaus' estate made it necessary to construct Bradhurst Road and Alhambra Avenue, that it was the duty of the Planning Commission of Baltimore City to establish the grades of the streets, and that those grades had to be complied with. The City Charter provides as follows: 'The Commission shall investigate and study the development of sub-divisions of land, as herein defined, and shall formulate and publish rules and regulations for the development of such sub-divisions which will require that the development plans include adequate provision for all public improvements, enterprises and all public utilities, whether privately or publicly owned or operated; for the proper width, grade and arrangement of streets, and all uses of land for public transportation, and the relation thereof to existing streets; for adequate and convenient open spaces for traffic and the access of fire-fighting apparatus; for proper drainage; and which will require that all such sub-divisions and the owners thereof comply in all respects with any applicable Official Detailed Plan.' Baltimore City Charter, 1949 Ed., sec. 116; Feldman v. Star Homes, Inc., Md., 84 A.2d 903.

It can reasonably be inferred that Mrs. Schwartz and Levi understood that the grades for the streets had to be established by the City Planning Commission. But it can also be reasonably inferred that Levi would be liable for loss of lateral support to Mrs. Schwartz' land and for any unlawful invasion of it.

Second. Defendants contend that, even if the excavator did cut into the lot at several places, plaintiffs did not sustain any loss of lateral support of the land. They claim that a survey made in 1949 shows that there had been no withdrawal of lateral support, and that if there has been any erosion of the slopes it has been very slight. They maintain that a slight erosion, not sufficient to induce a sinking of the soil, does not give rise to an action for damages for loss of lateral support in advance of actual subsidence of the land, and the removal of some surface soil without subsidence does not entitle the owner to recover more than the value of the soil removed.

It is an established principle of law that every owner of land has the right to lateral support from the adjoining soil, and if a landowner removes the soil from his own land so near the land of his neighbor that his neighbor's soil will crumble away under its own weight, he is liable for damages so occasioned. The right of support to land from the adjoining soil is a right of property, and not an easement, and if that support is withdrawn and injury ensues, he can maintain an action for damages without proving negligence or want of skill on the part of the adjoining owner.

Generally, a person who withdraws the naturally necessary lateral support of land in another's possession is liable for a subsidence of such land of the other as was naturally dependent upon the support withdrawn, in the absence of a superseding cause or othat reason for relieving him. While the withdrawal of lateral support subjects the actor to liability, it does not make him liable in an action for damages until a subsidence occurs. Moreover, to make the actor liable, the subsidence must be substantial. It has been said that the fall of a few grains of sand is not actionable. However, a subsidence is any movement of the soil from its natural position. A shifting, falling, slipping, seeping or oozing of the soil is a subsidence within the meaning of the term as used in the law of lateral support of land. 4 Restatement, Torts, sec. 817.

In the Court below Sophie B. Schwartz, now Sophie Schwartz Ayres, gave the following description of the erosion: 'The ground is constantly washing away. We haven't any footing in the back fence to keep it up properly, and the erosion has continued down to the curb line. You have nothing but mud to walk through it order to get up the steps, and on the side is constantly washing down to the curb line, and on the east it is washing over on the property 821 Bradhurst Road.' The evidence clearly showed that there had been a substantial subsidence.

Third. Defendants contend that they cannot be held liable for any tort committed by Ehrhardt & May, Inc., in violation of their instructions. The Court instructed the jury that if the excavator removed soil belonging to plaintiffs for its own purposes, but without the knowledge or consent of defendants, then defendants were not liable; but if the excavator acted under the direction or with the consent of the officers or agents of the developer, who had actual or apparent authority to authorize such acts, then the developer and the officers or agents who gave authorization are liable for the acts of the excavator. We think that instruction was correct.

Fourth. Levi contends that, as the developer's president, he should not be held liable for any unauthorized excavation done by Ehrhardt & May, Inc., since he did not direct or supervise any of the excavation. He claims that there is no evidence that he participated in the removal of any soil from the...