Schultz v. Bower
| Decision Date | 15 June 1894 |
| Docket Number | 8795 |
| Citation | 59 N.W. 631,57 Minn. 493 |
| Parties | Katharine Schultz v. John S. Bower |
| Court | Minnesota Supreme Court |
Argued June 5, 1894
Appeal by defendant, John S. Bower, from an order of the District Court of Hennepin County, Henry G. Hicks, J., made January 6 1894, denying his motion for a new trial.
The plaintiff, Catharine Schultz, owns vacant lots sixteen eighteen and nineteen in Auditor's Subdivision No. 33 on the left bank of the Mississippi River in Minneapolis. Defendant owns the adjacent land on the south and manufactures brick there. He dug down twenty feet or more and removed the clay so close to plaintiff's land that some of the soil of her land caved away and fell in for over one hundred feet along the line. The soil is sandy loam on top and brick clay underneath. She brought this action to recover damages for removing the lateral support to her ground. After the evidence was all in the Judge sent the jury in charge of an officer to view the premises, stating to them as follows:
You must not talk together concerning this case, but each one of you must carefully view the premises so as to form an opinion for yourselves in connection with the evidence of what the damages are and to enable you to determine the truthfulness or veracity of the statements made in the court by the witnesses.
To this instruction defendant excepted. After the jury had been out and examined the premises the Judge charged them among other things, that the true rule of damages in this case is the diminution in value of plaintiff's land by reason of the soil being taken away; that is, whatever less its market value is by reason of the removal of that lateral support. To this defendant also excepted. Other instructions given are stated in the opinion. The jury returned a verdict for plaintiff and assessed her damages at $ 500. Defendant moved for a new trial. Being denied he appeals.
Order reversed.
Little & Nunn, for appellant.
The object in viewing the premises was to enable the jury to better understand and comprehend the testimony of the witnesses and thereby more intelligently to apply the testimony to the issues to be determined, but not to furnish evidence upon which to find a verdict nor to determine the veracity of witnesses. Chute v. State, 19 Minn. 271; Brakken v. Minneapolis & St. L. R. Co., 29 Minn. 41; Close v. Samm, 27 Ia. 503; Heady v. Vevay, &c Turnpike Co., 52 Ind. 117; Wright v. Carpenter, 49 Cal 609.
M. C. Brady, for respondent.
A man has the right to support his own land by the adjoining land and if his neighbor digs down so as to deprive him of that support and his land caves in, he has a right of action although his neighbor may exercise all the care and skill he can. He is absolutely bound to make good the damages. Ulrick v. Dakota L. & T. Co., 2 S. Dak. 285; Stearns v. City of Richmond, 88 Va. 992; Richardson v. Vermont C. R. Co., 25 Vt. 465; Foley v. Wyeth, 2 Allen 131; Hay v. Cohoes Co., 2 N.Y. 159; Thurston v. Hancock, 12 Mass. 220; McGuire v. Grant, 25 N. J. Law, 356; Gilmore v. Driscoll, 122 Mass. 199.
OPINION
This was an action for damages for the wrongful act of the defendant in removing the lateral support of plaintiff's soil from the adjacent land, causing it to fall. The jury was sent out to view the premises. This is allowed, not for the purpose of furnishing evidence upon which a verdict is to be found, but solely for the purpose of better enabling the jury to understand and apply the evidence given in court. Chute v. State, 19 Minn. 271, (Gil. 230;) Brakken v. Minneapolis & St. L. Ry. Co., 29 Minn. 41, (11 N.W. 124.)
When the court sent the jury out, he instructed them to carefully view the premises, so as to form an opinion for themselves in connection with the evidence, of what the damages were; and in the charge the jury were told that they had been permitted to look the premises over, so that they might have another standard by which to gauge the evidence they had heard in court; that it might perhaps help them in determining whether the witnesses for the plaintiff or the witnesses for the defendant had more nearly told the truth in regard to the damages to the premises. And again, when asked by a juror whether "they had to go according to the evidence or not," the court told them they had to go by the evidence, but added that testimony was one thing, and evidence was another; that "testimony" was the words they heard in court, and "evidence" what they considered it worth; that the...
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