Noone v. Price

• Decision Date: 01 December 1982
• Docket Number: No. 15426,15426
• Citation: 298 S.E.2d 218,171 W.Va. 185
• Court: West Virginia Supreme Court
• Parties: William H. NOONE, et al. v. Marion T. PRICE.

Page 218

298 S.E.2d 218

171 W.Va. 185

William H. NOONE, et al. v. Marion T. PRICE.

No. 15426.

Supreme Court of Appeals of West Virginia.

Dec. 1, 1982.

Syllabus by the Court

1. "A landowner is entitled, ex jure naturae, to lateral support in the adjacent land for his soil." Point 2, syllabus, McCabe v. City of Parkersburg, 138 W.Va. 830, 79 S.E.2d 87 (1953).

2. "An excavation, made by an adjacent owner, so as to take away the lateral support, afforded to his neighbor's ground, by the earth so removed, and cause it, of its own weight, to fall, slide or break away, makes the former liable for the injury, no matter how carefully he may have excavated. Such right of support is a property right and absolute." Point 2, syllabus, Walker v. Strosnider, 67 W.Va. 39, 67 S.E. 1087 (1910).

3. When a retaining wall has been constructed by the owner of supporting land to provide lateral support for the soil of an adjoining owner, and the owner of the supported land later constructs a dwelling upon his property, the owner of the supporting land is under no duty to reinforce the wall so as to provide support for the structure; neither is his successor in title charged with such a responsibility. This is so because the duty to provide lateral support goes only to the soil in its natural condition and cannot be enlarged by the construction of buildings or other improvements upon the supported land.

4. "The duty on the part of the excavator, as regards buildings on adjacent land, when no right of lateral support therefor has been acquired, results from the relative rights of the parties and legal principles, governing conduct. As an adjacent owner has no right of support for his buildings, he has no property right in the form or nature of an easement in his neighbor's lands. If, therefore, the latter remove a part of his land so as to endanger the building of the former, he destroys no property right,--takes away nothing that belongs to the former. It does not follow, however, that he owes him no duty in the premises. Though he has complete dominion and power over his own land and may do with it what he pleases, he is nevertheless bound, agreeably to the maxims, 'Sic utere tuo ut alienum non laedas' and 'Prohibetur ne quis faciat in suo quod nocere posit alieno,' to use his property in such a manner as not to injure his neighbor's. This gives the latter no property right in the land of the former. It merely gives a personal right against him. It places a restraint upon his conduct. For any lawful purpose, he may use his property, but he must use it in a lawful, that is, careful manner. In other words, he must execute the work, as far as is reasonably practicable, and not unduly burdensome, with a view to the safety of the buildings on the adjacent property." Walker v. Strosnider, 67 W.Va. 39, 45, 67 S.E. 1087, 1090 (1910).

Robert G. Wolpert, Charleston, for appellants.

Jack A. Mann, Lynch, Mann & Knapp, Beckley, for appellee.

NEELY, Justice:

In 1960 the plaintiffs below, and appellants in this Court, Mr. and Mrs. William H. Noone, bought a house located on the side of a mountain in Glen Ferris, West Virginia. This house had been constructed in 1928 or 1929 by Union Carbide, and in 1964, four years after plaintiffs purchased the house, plaintiffs became aware that the wall under their front porch was giving way and that the living room plaster had cracked.

The defendant below, appellee in this Court, Mrs. Marion T. Price, lived directly below the plaintiffs at the foot of the hill in a house that was built in 1912. Sometime between 1912 and 1919 a wall of stone and concrete was constructed along the side of the hill, ten to twelve feet behind the defendant's house. This wall was a hundred to a hundred and twenty-five feet long, approximately four feet high, and of varying degrees of thickness. The wall lay entirely on the defendant's property, and was approximately ten to twelve feet from the property line that divided the defendant's property from the plaintiffs' property. The defendant purchased her house in 1955 and lived there until 1972, when she sold the property. Before the defendant's purchase, the wall had fallen into disrepair.

When the plaintiffs discovered that their house was slipping down the hill, they complained to the defendant that their problem was the result of deterioration in the defendant's retaining wall. The defendant did nothing to repair the wall and the plaintiffs repaired the damage to their house at a cost of approximately $6,000.

The action before us now was filed in 1968 for damages of $50,000 for failure of the defendant to provide lateral support for the plaintiffs' land, and her negligent failure to provide lateral support for their house. Plaintiffs alleged that the wall was constructed to provide support to the slope upon which their house was built, and that the disrepair and collapse of the wall caused the slipping and eventual damage to their property.

The defendant denied that the wall on her property provided support to the slope, or that the condition of her wall caused the slipping and damage to the plaintiffs' property. In addition, the defendant asserted that the plaintiffs were negligent in failing to take reasonable precautions to protect their own property and were estopped from suing her because the wall on her property was erected by her predecessor in title and the plaintiffs had purchased their property with knowledge of the wall's deteriorating condition.

Defendant made a motion for summary judgment that the circuit court granted in part. The circuit court concluded that the plaintiffs had no right to recover for damage to their dwelling house and buildings, but the court left open the question of whether plaintiffs could recover for damage to their land. The circuit court stated on the record that "there is a duty of lateral support to the land but not to a structure on the land." Unfortunately, while the circuit court stated an entirely correct principle of law, his disposition of this case on summary judgment was inappropriate. While an adjacent landowner has an obligation only to support his neighbor's property in its raw or natural condition, if the support for land in its raw, natural condition is insufficient and the land slips, the adjacent landowner is liable for both the damage to the land and the damage to any buildings that might be on the land. Consequently, we reverse and remand.

I

This case provides an opportunity that we have not had for many years to address the obligations of adjoining landowners to provide lateral support to each other's land. ¹ Support is lateral when the supported and supporting lands are divided by a vertical plane. The withdrawal of lateral support may subject the landowner withdrawing the support to strict liability or to liability for negligence. We have recognized both forms of liability in Walker v. Strosnider, 67 W.Va. 39, 67 S.E. 1087 (1910) and this case, remarkably enough, is still in harmony with the modern weight of authority as articulated in the Restatement (Second) of Torts.

As a general rule, "[a] landowner is entitled, ex jure naturae, to lateral support in the adjacent land for his soil." Point 2, syllabus, McCabe v. City of Parkersburg, 138 W.Va. 830, 79 S.E.2d 87 (1953). Therefore, as we said in syllabus point 2 of Walker, supra:

"An excavation, made by an adjacent owner, so as to take away the lateral support, afforded to his neighbor's ground, by the earth so removed, and cause it, of its own weight, to fall, slide or break away, makes the former liable for the injury, no matter how carefully he may have excavated. Such right of support is a property right and absolute."

An adjacent landowner is strictly liable for acts of commission and omission on his part that result in the withdrawal of lateral support to his neighbor's property. This strict liability, however, is limited to land in its natural state; there is no obligation to support the added weight of buildings or other structures that land cannot naturally support. However, the majority of American jurisdictions hold that if land in its natural state would be capable of supporting the weight of a building or other structure, and such building or other structure is damaged because of the subsidence of the land itself, then the owner of the land on which the building or structure is constructed can recover damages for both the injury to his land and the injury to his building or structure. ² The West Virginia cases are largely consistent with this position, although none has expressly so held. ³

The converse of the preceding rule is also the law: where an adjacent landowner provides sufficient support to sustain the weight of land in its natural state, but the land slips as a direct result of the additional weight of a building or other structure, then in the absence of negligence on the part of the adjoining landowner, there is no cause of action against such adjoining landowner for damage either to the land, the building, or other structure. ⁴

The issue in the case before us concerns the proper application of the strict liability rule. The circuit court improperly awarded summary judgment because the plaintiffs should have been allowed to prove that their land was sufficiently strong in its natural state to support the weight of their house, and that their house was damaged as a result of a chain reaction that began when the land in its natural state, toward the bottom of the hill, slipped as a result of the withdrawal of lateral support occasioned by the deterioration of the retaining wall, causing, in turn, successive parts of the hillside to subside until the ripple effect reached the foundation of the plaintiffs' house.

The cases recognize that lateral support sufficient to hold land in its natural state may be insufficient to support the additional weight of a building or other structure. If, therefore, as a result of the...