Sime v. Jensen
| Decision Date | 24 December 1942 |
| Docket Number | No. 33244.,33244. |
| Citation | 7 N.W.2d 325,213 Minn. 476 |
| Parties | SIME v. JENSEN. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; Luther W. Youngdahl, Judge.
Action by W. J. Sime against Lisbeth S. Jensen for trespass upon plaintiff's land and for removal of lateral support therefrom, wherein the defendant counter-claimed for nuisance and for trespass committed by plaintiff upon her land. From an order denying defendant's motion for new trial, defendant appeals.
Reversed and new trial granted.
Leonard W. Swanson, of Minneapolis, for appellant.
Malmberg & Nelson, of Minneapolis, for respondent.
Plaintiff sues defendant for trespass upon his land and for removal of lateral support therefrom. Defendant denied liability and counterclaimed for nuisance and for trespass committed by plaintiff upon her land.
The parties own adjoining easterly facing lots on Chicago avenue in Minneapolis, which were formerly under common ownership. In 1938 plaintiff bought his lot and erected a house thereon, which was completed in July 1939. Subsequently defendant bought the lot adjoining plaintiff's on the south and erected a house thereon, which was completed in 1940.
The lots are on a hillside which slopes from north to south with a drop of about three feet per lot. Prior to the acquisition of ownership by either party the top soil had been removed from much of the area involved and a large and deep hole had been dug in removing gravel.
After the houses had been erected, the parties graded their lots. Plaintiff graded his lot so that along the north line it was about three feet below the level of the lot adjoining on the north and so that along the south line it was of varying heights above defendant's lot. In front it was about one foot higher. The height was increased to about 18 inches toward the rear, where it decreased until it was lower than defendant's lot at the alley.
In grading his lot, plaintiff sloped and sodded the bank along the south line in such a way that one-half the bank was on his and the other half on defendant's lot. When defendant graded her lot in 1940, she removed the part of the bank resting on her lot and leveled her lot to the middle of the slope, where the boundary line was, in such a way as to leave an upright earth bank instead of a sodded slope. Thereafter, soil from plaintiff's land fell upon defendant's.
Subsequently, in 1940, plaintiff sent two men to fix the slope so as to prevent soil falling from his land onto defendant's. They intended to change the grade of and to resod the slope. They entered on defendant's land and started to remove some sod on her lot in doing the work. At this juncture defendant stopped them. It appears that defendant was having a birthday party at the time. She claims that plaintiff committed nuisance, because soil fell from his bank onto her lot, and trespass, because his employes wrongfully entered on her land and started to remove sod.
The evidence is conflicting as to whether the soil along the south line of plaintiff's lot remained in its natural condition, except for the removal of top soil, or whether he filled that part of his lot so as to raise its level above that of defendant's. The findings, clear as to the other facts, are not explicit on this precise point. Throughout the decision below, the court treated the case as one where plaintiff had filled his lot above the level of defendant's. The memorandum, which was made a part of the decision, plainly states that this was the fact and that in consequence thereof plaintiff had no right of lateral support as against defendant. Further, the court below said that "plaintiff of course must furnish his own support for such a condition and cannot permit the soil from his lot to encroach upon defendant's premises by virtue of that situation"; but that, in view of all the facts and circumstances, it was fair and just that a retaining wall should be built on the line between the lots (which the evidence shows was to be about one foot above the ground and was to extend from a point about 15 feet easterly of the front of plaintiff's house 75 feet toward the rear) at a cost of $90, and that defendant should be compelled to pay $30 as her share thereof.
Defendant appeals. She insists that the court below erred in holding that the retaining wall should be built in part on her land and that she should be compelled to pay any part of the cost thereof; that the court erred in its rulings relating to the admission of evidence to prove damages sustained by the trespass committed by plaintiff's employes upon her land; and that it erred in denying her relief for such trespass.
1. The statements of fact in the memorandum made part of the decision are not only not inconsistent with the facts specifically found, but explain and elaborate those thus found and show the only basis for the conclusions made. By the statements of fact in the memorandum, the court below in effect found that plaintiff raised his lot by filling it to a level above defendant's. Facts stated in a memorandum made part of the decision, not inconsistent with the facts specifically found (see McGovern v. Federal Land Bank, 209 Minn. 403, 296 N.W. 473), become a part of the findings. Thomas Peebles & Co. v. Sherman, 148 Minn. 282, 181 N.W. 715. We are bound to accept the facts so found on appeal.
2. The right of lateral support from adjoining land consists in having the soil in its natural condition remain in its natural position without being caused to fall away by reason of excavations or improvements made on adjacent land. Braun v. Hamack, 206 Minn. 572, 289 N.W. 553, 129 A.L.R. 618; Young v. Mall Inv. Co., 172 Minn. 428, 215 N.W. 840, 55 A.L.R. 461. The right to lateral support is said to be a...
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