Prete v. Cray

• Decision Date: 25 April 1928
• Docket Number: No. 6426.,6426.
• Citation: 141 A. 609
• Parties: PRETE et al. v. CRAY, City Treasurer.
• Court: Rhode Island Supreme Court

141 A. 609

PRETE et al.

v. CRAY, City Treasurer.

No. 6426.

Supreme Court of Rhode Island.

April 25, 1928.

Exceptions from Superior Court, Providence and Bristol Counties; Arthur P. Sumner, Judge.

Action of trespass upon the case by Frank Prete and others against Clarence E. Cray, City Treasurer of the City of Providence. Verdict for plaintiffs, and, from denial of his motion for new trial, defendant brings exceptions. Exceptions overruled, and case remanded for entry of judgment for plaintiffs on the verdict.

Knauer & Fowler and De Pasquale & Turano, all of Providence, for plaintiffs.

Clason, Brereton & Kingsley, of Providence, for defendant.

SWEETLAND, C. J. This is an action of trespass on the case brought against the defendant as city treasurer of the city of Providence to recover damages for injury to the plaintiffs' property alleged to have been caused by the action of the city in making an excavation in front of the plaintiffs' land on Branch avenue in Providence for the purpose of repairing a public sewer.

The case was tried before a justice of the superior court sitting with a jury. The trial resulted in a verdict for the plaintiffs in the sum of $2,020.83. The defendant duly filed a motion for new trial, which was denied by the justice. The defendant has brought the case before us upon exception to the decision of the justice on the motion for new trial, and upon certain other exceptions of the defendant taken to rulings of the justice made in the course of the trial.

The declaration is in two counts. The first count alleges a breach on the part of the city of its duty to so conduct its work and support the sides of said excavation as not to disturb or remove the lateral support of the plaintiffs' adjoining property. The second count alleges negligence on the part of the city and its agents in making the excavation and performing the work of repairing the sewer, causing injury to the plaintiffs' property.

At the conclusion of the evidence, the justice ruled that the plaintiffs had entirely failed to show negligence on the part of the city, and withdrew the second count from the consideration of the jury. To this ruling the plaintiffs excepted, but, as the verdict was in their favor, they have not brought the exception here, and the question of whether the evidence tended to establish negligence in the city is not before us.

The defendant is now insisting upon his exceptions to the ruling of the justice denying the motion to direct a verdict for the defendant and to the refusal of the justice to instruct the jury in accordance with the defendant's three requests to charge. Each of these four exceptions is based upon the defendant's contention that in performing the work in question the city was exercising a governmental function, and hence, in the absence of statutory provision imposing such liability, it is not liable for injury to the plaintiffs' property caused by the disturbance or the removal of the lateral support of the plaintiffs' land.

By a series of statutes, Providence has been given authority to construct public sewers in the city streets and to make assessments for the cost thereof on the adjacent land. No duty to so construct sewers, however, has been imposed upon the city. It must be held that, in availing itself of the privilege thus granted, the city was not exercising a governmental function delegated to it by the state, but was voluntarily acting for its own advantage in its corporate capacity as a municipality. Upon this ground these exceptions should be overruled. Upon the application of a broader principle recognized by this court, however, the defendant would be liable under the allegations of the first count of the declaration which were amply supported by the plaintiffs' evidence. When the city of Providence, in the exercise of the power given to it to make excavations in the city streets for the purpose of constructing or repairing sewers, goes beyond the lines of the street, and invades private property, even if the invasion is only consequential, it stands in no different position from a private individual who invades the property of another individual. Under our decisions, an owner's property is invaded when its beneficial use is impaired in the manner alleged in the first count of the declaration as well as when such owner is directly and formally excluded from its enjoyment. Inman v. Tripp, 11 R. I. 520, 23 Am. Rep. 520; O'Donnell v. White, 23 R. I. 318, 50 A. 333.

In his general charge the justice instructed the jury as follows:

"If sand or soil of the plaintiffs' land ran into the trench because of the digging operation the plaintiffs have been deprived of lateral support, and are entitled to damages, regardless of whether there is negligence or not."

To this instruction the defendant has excepted, and has relied upon that exception before us. The portion of the charge to which exception was taken appears by the transcript to have been part of a sentence, the remainder of which is, "if they did so act that because * * * they took away the lateral support of the land of the plaintiff, then the plaintiff is entitled to damages." This instruction is not objectionable as constituting an erroneous statement of the law. It is contended, however, that, as the plaintiffs' claim of damage included damages to buildings upon their land as well as to the land itself, the charge was insufficient and misleading, in that it failed to instruct the jury fully as to the measure of damages applicable in the circumstances of this case. If not satisfied with the charge in this regard, the defendant should have asked for specific instructions, and, failing so to request the justice, the defendant cannot raise the objection here. Warner Sugar Refining Co. v. Metropolitan Grocery Co., 46 R. I. 158, 125 A. 276; Langley v. Wool worth Co., 47 R. I. 165, 131 A. 194; Cassidy v. McDonald, 47 R. I. 147, 131 A. 543.

In the consideration of this exception, however, questions have arisen which make it desirable to consider the nature of, and the limitations upon, the right of so-called lateral support between lands of adjoining owners, and also as to what is the measure of damages in case of an interference with that right. At the outset we hold that in this state, if, in the exercise of a privilege to construct or repair a sewer in a public street, a municipality makes excavations therein, it is subject to the same duty not to interfere with the lateral support of land abutting on the street that the law imposes upon adjoining landowners. Between adjacent landowners, the general principle in this regard is that each has an absolute property right to have his land laterally supported by the soil of his neighbor, and if either in excavating on his own premises so disturbs the lateral support of his neighbor's land as to cause it, in its natural state, by the pressure of its own weight, to fall away or slide from its position, the one so excavating is liable. This right of lateral support applies only to the land of the adjacent owner, and does not include the right to have the weight of the building placed upon the land also supported. And when, upon an excavation made on his own land by an adjoining landowner, a building upon the adjacent land by its weight, and pressure causes the building itself and the land upon which it stands to sink, then in the absence of negligence the one making the excavation is not liable for injury to the building resulting from its subsidence.

A condition sometimes arises where, as the result of an excavation made on his own land by one adjoining landowner, there is a disturbance of the lateral support to his neighbor's land due solely to the weight of the neighbor's land itself in its natural condition, and there has also been injury to a building on such neighbor's land resulting from the subsidence of the land, which subsidence cannot be ascribed in any degree to the pressure of the building upon the land.

In such circumstances, some courts have applied the general rule as to damages, and have held that, in the absence of negligence on his part, the landowner making the excavation is not liable for damages arising from injury to the building of his neighbor. A line of authority, however, has been developed which has regarded the condition we have named as calling for a qualification of the general rule, and it has been held by a number of courts that a landowner by building upon his land has not thereby lost his right to have his soil supported, and, when that right is invaded by his neighbor, and his land sinks, he is entitled to compensation for the direct results of such breach of duty, including any injury to buildings upon his land, when such injury is due to an interference with the lateral support of the soil, and cannot be ascribed to the weight and pressure of the buildings upon the land. Such is the rule enunciated in the English cases. Hunt v. Peake, 29 L. J. Eq. 789; Brown v. Robins, 4 Hurl. & N. 186; Stroyan v. Knowles, 6 Hurl. & N. 454.

Upon this question, there is a distinction in principle between liability and damage which appears to have been overlooked in cases holding contra to what we may call the English rule. This distinction may be stated as follows: There is no legal duty in the landowner A to furnish lateral support for the building of his neighbor B, and if, without negligence on A's part, B's soil falls away solely by reason of A's excavation on his own land, and due in no respect to the weight of B's building, yet B's building is injured due to the subsidence of the soil under it, nevertheless, under the general rule A has committed no actionable wrong in respect to the injury to B's building; he has, however, committed an actionable wrong with respect to B's land, and, under the general legal principle that a wrongdoer must make compensation in damages for all the direct results of his wrongdoing, B is entitled to...