Mosier v. Oregon R. & Nav. Co.

• Decision Date: 08 April 1901
• Citation: 64 P. 453,39 Or. 256
• Parties: MOSIER v. OREGON R. & NAV. CO.
• Court: Oregon Supreme Court

64 P. 453

39 Or. 256

MOSIER v. OREGON R. & NAV. CO.

Supreme Court of Oregon

April 8, 1901

Appeal from circuit court, Wasco county; W.L. Bradshaw, Judge.

Action by M.J. Mosier against the Oregon Railroad & Navigation Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Wirt Minor, for appellant.

A.S Bennett, for respondent.

BEAN, C.J.

This is an action to recover damages caused by a portion of the plaintiff's land sliding into an excavation made by the defendant company in the repair of its road. The verdict and judgment were for the plaintiff, and defendant appeals.

The facts, so far as material, may be briefly stated thus: In June, 1897, the defendant, desiring to straighten or change its track through the premises of the plaintiff, obtained a deed from her for a new right of way. Thereafter, in making the proposed change, a cut or excavation was made in the right of way so acquired, from 25 to 40 feet in depth through the foot of a hill or steep incline. It is alleged that, without taking any precaution to prevent the plaintiff's land from sliding into such excavation, the defendant negligently and carelessly fired heavy blasts in the vicinity, whereby 1 1/2 acres of her land were made to slide into and towards the excavation, another tract was undermined, access from one part of her premises to another was cut off, and a valuable spring of water destroyed. The defendant in its answer denies the negligence charged alleges that its road was constructed in a careful and prudent manner, and pleads that plaintiff is estopped by her deed from claiming any damages on account of the injuries mentioned. The court below ruled that plaintiff could not recover without proof of negligence, but denied defendant's motion for a nonsuit on the ground that no such proof was offered or admitted. This ruling and the refusal to give certain instructions on the subject of negligence constitute the errors relied on for reversal of the judgment.

The questions thus raised are unimportant if the rule is, as contended by the plaintiff, that the defendant's liability for removing the lateral supports of her land is absolute, and independent of any question of negligence. It is familiar law that an owner of land is entitled to have it remain in the state in which it was placed by nature supported and protected by adjoining soil. This right of lateral support, as it is called, is a right of property annexed to the land, to which the owner is as much entitled as to the land itself. If an adjoining proprietor, in excavating on his own land, removes such support, to the injury of his neighbor's soil, he is liable in an action therefor, without proof of negligence. 1 Am. & Eng.Enc.Law (2d Ed.) 229; 3 Suth.Dam. 417; Jones, Easem. § 585; Tied.Real Prop. (2d Ed.) § 618; 10 Eng. Ruling Cas. 157; Gilmore v Driscoll, 122 Mass. 199.

There is a conflict in the authorities as to whether this rule applies to railroad companies in constructing their roads over a right of way acquired by condemnation or grant, but we believe, with Mr. Elliott, that "the weight of authority, however, in accordance with what seems to us the better reason, is to the effect that the destruction of such lateral support by excavating on the company's own land so near that of the adjoining owner as to cause his land to slide into the excavation is a taking for which he is entitled to compensation, regardless of any question of negligence on the part of the railroad company." 3 Elliott, R.R. 1406. Mr. Lewis, in discussing this question, says: "If, in the execution of public works under authority of law, excavations are made, and the soil of an individual gives way in consequence of being deprived of its lateral support, there is a taking to the extent of such deprivation, and the individual is entitled to compensation for the resulting damage. The right of lateral support is a part of his property in the land, as much so as his right of user or of exclusion. When he is deprived of it, his property is taken just as much as if his property was invaded." 1 Lewis, Em.Dom. (2d Ed.) § 151. The doctrine is very clearly stated in McCullough v Railway Co., 52 Minn. 12, 17, 53 N.W. 802, 803. In that case the railroad company had acquired a right of way for its road over land belonging to one Oswald, by condemnation. Thereafter Oswald subdivided his property into lots and blocks, and the plaintiff became the owner of two lots adjoining the right of way. In constructing its line along the side of one of these lots, the company excavated the earth to the depth of some 20 feet, without constructing an adequate lateral support to the adjacent soil, in consequence of which the earth from one of the lots fell into the excavation, and on the other sunk to a considerable extent, for which he brought an action against the company. The trial court held that plaintiff could not recover, but, on appeal, the judgment was reversed; the appellate court holding that the defendant, to justify its removal of the lateral support of plaintiff's soil, must show a right to do so, acquired either by condemnation or purchase, and that the right acquired by condemnation did not permit it to remove the soil adjoining its right of way, either by taking away the natural lateral support or otherwise. Mr. Chief Justice Gilfillan, speaking for the court, says: "To justify itself, the company must stand on this proposition, no other will suffice: That, having acquired the right to a strip 100 feet wide on which to construct and maintain its railroad, it may, wherever excavating may be, or at any time may become, necessary or expedient and prudent in constructing its road, measure the 100 feet at the bottom of the excavation, instead of on the original surface of the...