Schmoe v. Cotton

• Decision Date: 16 November 1906
• Docket Number: No. 20,868.,20,868.
• Parties: SCHMOE et al. v. COTTON.
• Court: Indiana Supreme Court

167 Ind. 364

79 N.E. 184

SCHMOE et al.

v.COTTON.

No. 20,868.

Supreme Court of Indiana.

Nov. 16, 1906.

Appeal from Superior Court, Marion County; Jas. M. Leathers, Judge.

Action by Mary E. Cotton, as administratrix, against Louis C. Schmoe and others. From a judgment for plaintiff, defendants appeal. Case transferred from Appellate Court under Burns' Ann. St. 1901, § 1337u (Acts 1901, p. 590, c. 259). Affirmed.John P. Leyendecker, for appellants. C. E. Cox, for appellee.

MONKS, J.

This action was brought by appellee's decedent to recover damages for injury to her land caused by the excavation of adjoining land by appellants. Appellants' separate demurrers to the complaint were overruled and a general denial filed. It appeared from the testimony of the first witness for the appellee that the alleged wrongful acts of appellants had continued after the filing of the complaint and appellee, by leave of court, filed a supplemental complaint. The cause was tried by the court, and over a motion for a new trial by appellants judgment was rendered against them.

The errors assigned, and not waived by a failure to state the same in the points set forth in their brief as required by the fifth clause of rule 22, are (1) that the complaint is insufficient; (2) that the court below erred in permitting appellee to file a supplemental complaint; (3) that the court erred in overruling appellants' motion for a new trial, in this: (a) That the evidence was not sufficient to sustain the finding of the court, and (b) that the court erred in sustaining the objection of appellee to a question or cross-examination of the witness Spahr Under the said clause of rule 22 (55 N. E. vi) no alleged error or point not contained in appellants' statement of points can be raised afterwards and will be considered as waived. Eubank's Manual, pp. 271, 283, §§ 179, 188. Elliott's Appellate Procedure, § 444.

Appellants insist that the complaint was not sufficient to withstand their demurrers for want of facts because the value of the land before and after the injury was not stated, citing Morgan v. Lake Shore, etc., Ry. Co., 130 Ind. 101, 28 N. E. 548. It is said in the case cited that the complaint is not good “because the value of the land is not given nor the extent of the injury stated.” The complaint alleged ownership of the land by the plaintiff and that defendants are and have been the owners of land contiguous and adjoining plaintiff's land since 1902; that “there runs through said lands of the plaintiff and defendants a high ridge or elevation *** composed of sand and gravel, with a thin covering of soil; *** that said sand and gravel in said ridge extends from near the top of said ridge downward a great depth, and said ridge is and has long been entitled to the support of defendants' contiguous ground; that *** defendants began excavating and removing sand and gravel from said ridge on their land and have continued so to do until *** June, 1903, when they excavated said sand and gravel from said ridge to a depth of 30 feet up to and flush with the line dividing plaintiff's and defendants' lands; *** that plaintiff's property has been greatly damaged by said excavations, in this: That plaintiff's said ridge on the west side thereof has been undermined, and, together with the fence, roadway, and fruit-bearing plants thereon, has fallen on to defendants' said ground, to plaintiff's damage in the sum of $500.” The supplemental complaint alleged “a continuance of such excavation, and the removal of earth, sand, and gravel, and the undermining of said ridge along the line dividing the lands of plaintiff and defendants to a depth of 30 feet, and that plaintiff's land for a distance of 175 feet has broken loose, fallen and slipped onto defendants' said ground, greatly decreasing the value of plaintiff's land and thereby causing her damage in the sum of $1,000.” It is evident that appellants' first objection to the complaint is not tenable.

It is next asserted by appellants that the complaint seeks to charge the defendants with negligently doing an act or acts which they or either of them might rightfully have done in a careful manner, and that the same is not sufficient because the absence of contributory negligence on the part of the plaintiff is not alleged. Plaintiff, as owner of said real estate, had a natural right of lateral support for her land from the adjoining land owned by the defendants. This right existed independent of grant or prescription, and was also an absolute right. If defendants excavated their land adjoining the land of the plaintiff, and in consequence thereof plaintiff's land sunk and fell away as alleged in the complaint, plaintiff has a right of action, although such excavation was carefully and skillfully made. Such right of action is not based upon negligence, but on the violation of an absolute right, the right to lateral support for said land in its natural condition; but there can be no recovery of damages to artificial structures erected thereon except upon the basis of negligence. Moellering v. Evans, 121 Ind. 195, 198-200, 22 N. E. 989, 6 L. R. A. 449, and authorities cited. Schultz v. Bower, 57 Minn. 493, 59 N. W. 631, 47 Am. St. Rep. 630, note page 632; 33 Am. St. Rep., note pages 446-451, 453-455, 468-475; Gilman v. Driscoll, 122 Mass. 199, 23 Am. Rep. 312; 18 Am. & Eng. Ency. of Law (2d Ed.) 542, 547, 548; 1 Cyc. 776-782; 4 Sutherland on Damages (3d Ed.) p. 3071, § 1053; 2 Washburn, Real Property (6th Ed.) p. 336, § 1296. It is clear that the objections urged to this complaint are not tenable.

Under section 3, of the act of 1903 (Acts 1903, p. 339, c. 193), being section 641c, Burns' Ann. St. Supp. 1905, the supplemental complaint, the action of the court in permitting the same to be filed, and the objection and exception of appellants to such action of the court, are a part of the record without a bill of exceptions. The right to file a supplemental complaint rests in the sound discretion of the court. Pouder v. Tate, 132 Ind. 327, 329, 330, 30 N. E. 880, and cases cited; Kimble v. Seal, 92 Ind. 276, 279-283; Woollens, Trial Procedure, §§ 3339, 3340; 1 Works' Practice & Pleading, § 706; 21 Ency. Pleading &...