Lyons v. Walsh

• Decision Date: 06 July 1917
• Citation: 101 A. 488,92 Conn. 18
• Court: Connecticut Supreme Court
• Parties: LYONS v. WALSH.

101 A. 488

92 Conn. 18

LYONS

v. WALSH.

Supreme Court of Errors of Connecticut.

July 6, 1917.

Appeal from Court of Common Pleas, New London County; Charles B. Waller, Judge.

Action by Mary R. Lyons against Marianne Walsh for mandatory injunction for restoration of a neglected wall and for damages for its partial collapse; defendant counterclaiming for substantially the same relief. Judgment for defendant on her counterclaim, and plaintiff appeals. Reversed and remanded, with directions.

The parties own adjoining city house lots on a street in Norwich running north and south. Both lots were originally in one tract, and in its natural condition the land sloped unbrokenly and at a steep pitch from the north. Long before either of the present owners acquired title to her lot, the then owner of the lower lot, who had purchased from the original owner of the tract, leveled a part of his land for building upon it, and in so doing excavated and removed the soil from this portion up to and along a section of his northern boundary line. This destroyed for a corresponding distance the natural lateral support of the adjoining land of the north lot, and to replace it he built into the bank a retaining wall 10 feet high along this portion of the east and west line. This was set wholly upon the upper, or what is now the Walsh, lot, and the dividing line of the two properties lies along its exposed southern face. Some years afterwards, in 1895, and after the defendant had become the owner of the north lot, a later owner of the south lot made another excavation in preparation for further building, and removed more soil up to the line as extended from the eastern end of the wall. This operation removed the lateral support of the Walsh land along the continued line, and in substitution for this support he extended the wall at the same height of 10 feet still further along the line, continuing it wholly on the Walsh land, so that the dividing line of the two lots follows the southern face of the wall throughout its length. The height of the wall measures the depth of the excavations at the line, and no additional burden requiring more than the natural lateral support of the soil has ever been added to the Walsh lot. The parties are ignorant of the circumstances under which the first section of the wall was placed on the Walsh lot, save that its purpose and the person erecting it were as already stated, and, although the remaining part of the wall was built after the defendant had acquired her present ownership, the record is silent as to why this part of the wall was also placed wholly upon her land. No deed dealing with any of the property involved mentions the wall. The plaintiff bought the south lot in 1913, and through neglect and the work of the elements the wall has been disintegrating for several years; there being no evidence of any effort by any one to maintain it or keep it in repair. It is now out of plumb in parts, and stones from it have become loosened and dislodged, and have fallen upon the plaintiff's land. Damage to the plaintiff from this cause during the two years next before this action was brought amounts to $25. More trouble of this character is likely to occur, and the wall is in danger of further collapse, Unless it is strengthened or restored.

There was apparently no dispute between the parties as to these essential facts, and upon them the plaintiff claimed, by way of equitable relief, a mandatory injunction directing the proper repair or rebuilding of the wall by the defendant, and legal relief in damages for the injury already incurred. The defendant, in pursuance of a counterclaim which rehearsed the more important of the facts and supplemented them with further allegations in the nature of assumed legal deductions from them, claimed a mandatory injunction compelling the restoration of the wall by the plaintiff to a condition of efficiency, or the furnishing of other adequate support for the defendant's land. The trial court rendered judgment for the defendant for a mandatory injunction as prayed for, and for nominal damages, and the plaintiff's claim of error, alternatively stated in its several assignments upon the appeal, is based upon the court's holding that the duty of maintaining the wall rested upon the plaintiff, and in not holding that it rested upon the defendant.

William H. Shields and William H. Shields, Jr., both of Norwich, for appellant. Jeremiah J. Desmond, of Norwich, for appellee.

CASE, J....