Orr v. Dayton & M. Traction Co., 21,893.

Citation178 Ind. 40, 96 N.E. 462
Case DateNovember 22, 1911
CourtSupreme Court of Indiana

178 Ind. 40
96 N.E. 462


No. 21,893.1

Supreme Court of Indiana.

Nov. 22, 1911.

Appeal from Circuit Court, Randolph County; John W. Macey, Judge.

Action by George T. Orr against the Dayton & Muncie Traction Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Cause transferred from the Appellate Court under Burns' Ann. St. 1908, § 1405.

Orr & Orr, for appellant. Theodore Shockney, for appellee.


Appellant was the owner of 80 acres of land lying lengthwise north and south, in the northeast corner of which was a gravel pit some 30 feet in depth. Adjoining appellant's land on the east was another 80-acre tract of land, in the northwest corner of which was a public cemetery, which extended south from the northwest corner of the tract 10 rods and east, so as to include about 1 acre of land, in which cemetery were interred, among a number of other persons, the remains of the father and mother, a brother, and four of the children of appellant. The remains of his kindred were near the west line of the cemetery, within 7 feet of appellant's east line, and there was a monument 5 or 6 feet high at the grave of appellant's brother, alongside of whom lay the remains of one of appellant's children, and there were numerous other interments and some 200 monuments in the cemetery. The locations of the gravel pit and of the cemetery were examined by appellee's agent in company with appellant before the contract hereinafter referred to was executed. It does not appear whether appellant owned a lot in the cemetery.

On March 18, 1905, appellant leased to appellee in writing the right until March 18,

[96 N.E. 463]

1906, to remove gravel from the deposit on certain portions of his land, and by the terms of the contract it was provided that “the second party (appellee) *** shall not excavate close enough to the line of the adjacent premises on the east to deprive it of lateral support,” and that the appellant should select a civil engineer to act with the engineer of appellee, and the two should cross-section the ground or pit before any earth should be removed, and, upon the taking by appellee of all the material it desired, the two engineers, one selected by each party, should compute the amount taken. The contract also provides that the material should be taken from the “east side of the open pit in the northeast corner, and from a pit which may be opened to the south thereof and about midway of the tract, but said company shall first exhaust the material in said north pit and after that may take from the south pit.” Under this contract two engineers selected under the terms of the contract cross-sectioned the ground for quantity of gravel removed, and in doing so set stakes over various portions of the area, the east line of which stakes was 8 or 10 feet west from the fence, which was a good post and wire fence, on the east line of appellant's land. Appellant was not present when these stakes were set; but these stakes were treated by the parties as the line. Appellee went upon the ground with a steam shovel, and excavated and removed the earth to a depth of about 32 feet almost perpendicularly along appellant's east line adjoining the cemetery, and quit excavating in August, 1905, and in doing the work appellee did not cease removing the ground until the sliding gravel undermined the banks until they projected 3 or 4 feet and sloughed off beyond the fence line, and earth from the cemetery fell into the pit. The character of the earth, owing to its being gravel and sand, was such as to cave and assume a slant, until at the time the suit was begun, December, 1905, it had caved 3 feet beyond the fence line from the cemetery, and by May, 1907, it had sloughed off into the cemetery 3 1/2 feet for a distance of 15 to 20 feet and to or within the fence line 55 feet longitudinally. Stakes set on the east by the engineers in cross-sectioning were estimated by them at the time to be as close as excavating could be done. Excavation had gone 2 or 3 feet beyond this line of stakes before sliding occurred, and at the bottom of the pit within 10 feet of the cemetery line, and this sliding had undermined the banks until they fell in beyond the cemetery line. Appellant was under agreement with the adjoining landowner to maintain the fence on the north half of the east line of his land, though this only appears from the evidence. The caving took out the posts and fence a good part of the distance along the cemetery, and it is in evidence that the earth will cave 10 feet back from the cemetery line, and take out all the fence, and that it will be impossible to construct and maintain a fence there, at least without digging and working, and that the sloughing will necessarily continue until monuments and graves in the cemetery will fall in, and that such result was reasonably to be apprehended from the nature of the earth and the depth of the pit, and that the earth will continue to slide in owing to the gravelly character, until it shall assume a slope of between 1 and 2 feet horizontal to 1 foot vertical, and that it is possible to protect the adjoining land either by a slope of that angle, or by a wall and a sloping bank on such grade. The expense of a retaining wall to prevent further caving is $842, and the difference in the value of the land, $800, owing to the condition in which the pit left it. Five hundred dollars was the amount given in evidence as the damages to appellant's land from the land on the east falling into his land, and his liability in damages therefor. Appellant lived near the pit, and was frequently at it. Before appellee began excavating, the west line of the pit was 30 feet deep, and 50 to 60 feet from the cemetery line, and the character of the earth disclosed. When the first caving occurred beyond the cemetery line, appellant ordered appellee to desist, and it did. Appellant received pay for the gravel removed.

Appellant instituted this action for breach of the covenant not to “excavate close enough to the line of the adjacent premises on the east to deprive it of lateral support,” claiming the measure of damages to be the cost of a supporting wall or bank. The trial court found against him, denying all recovery, and he appeals, assigning error upon overruling his motion for a new trial, which presents the question of the decision being contrary to law.

The complaint alleges damages to the land of the appellant from earth from the adjoining land and cemetery falling into it from a lack of support, and damages to him and his land from the insecurity of the graves, from the removal of the support to the adjacent land, which can only be supplied at great expense, and for the breach of contract in depriving the adjoining premises of their lateral support, to his damage in the sum of $1,000, and neglect, refusal, and failure to erect a wall, or protect the abutting premises, or restore its lateral support, or repair the injury. Prayer for $1,000 damages.

The complaint is not carefully drawn so as to distinguish alleged damage to appellant's land by reason of the earth from the adjoining land falling into his land, or the falling in of the graves of those interred in the cemetery, on the falling in of the fence, and fence support or the damages from breach of contract proper; but the evidence seems to have been given upon the theory of

[96 N.E. 464]

damages for the breach of contract, and appellant so claims his theory of the complaint to be, and we so treat it.

There was a breach of the contract in excavating, so that the support to the adjoining property was removed; but the facts do not show such injury to his land or damage to him as to justify a recovery at this time upon that ground, except as to removing fence support. There may have been special damage from the breach of the contract with respect to cutting beyond the stakes, and undermining the fence, and rendering it impossible, difficult, or expensive to construct or maintain a fence where appellant was under obligation to maintain it; but no damage is pleaded in...

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4 cases
  • Orr v. Dayton And Muncie Traction Company
    • United States
    • Supreme Court of Indiana
    • November 22, 1911
  • Louisville Cemetery Ass'n v. Downs
    • United States
    • Court of Appeals of Kentucky
    • December 18, 1931
    ...... and its employees. Louisville & N. R. R. Co. v. Hull, 113 Ky. 561, 68 S.W. 433, 24 Ky. Law Rep. 375, 57. L.R.A. 771; Orr v. Dayton, etc., Traction Co., 178. Ind. 40, 96 N.E. 462, 48 L.R.A. (N. S.) 474, Ann.Cas. 1915B,. 1277; Burney v. Children's Hospital, 169 Mass. 57, 47 N.E. ......
  • Louisville Cemetery Association v. Downs
    • United States
    • United States State Supreme Court (Kentucky)
    • December 18, 1931
    ......Louisville & N. R.R. Co. v. Hull, 113 Ky. 561, 68 S.W. 433, 24 Ky. Law Rep. 375, 57 L.R.A. 771; Orr v. Dayton, Etc., Traction Co., 178 Ind. 40, 96 N.E. 462, 48 L.R.A. (N.S.) 474, Ann. Cas. 1915B, 1277; Burney v. Children's Hospital, 169 Mass. 57, 47 N.E. 401, ......
  • Schuler v. Posey County, Ind., EV 95-3-C R/H.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • March 15, 1996
    ......State, 205 Ind. 102, 185 N.E. 899 (1933); Orr v. Dayton & Muncie Traction Co., 178 Ind. 40, 96 N.E. 462 (1911); Hamilton v. City of New Albany, 30 Ind. 482 (1868), these cases are either factually ......

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