St. Louis-San Francisco Ry. Co. v. Wade, LOUIS-SAN

• Decision Date: 21 November 1979
• Docket Number: LOUIS-SAN,No. 77-2053,77-2053
• Citation: 607 F.2d 126
• Parties: ST.FRANCISCO RAILWAY COMPANY, a corporation, Plaintiff-Appellant-Cross Appellee, v. R. A. WADE, Jr., etc., et al., Defendants-Appellees-Cross Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 126

607 F.2d 126

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a corporation Plaintiff-Appellant-Cross Appellee, v. R. A. WADE, Jr., etc., et al., Defendants-Appellees-Cross Appellee.

No. 77-2053.

United States Court of Appeals Fifth Circuit.

Nov. 21, 1979.

L. Vastine Stabler, Jr., Michael C. Quillen, Birmingham, Ala., for plaintiff-appellant, cross-appellee.

James E. Simpson, Lawrence B. Clark, Bibb Allen, Birmingham, Ala., for defendants-appellees, cross-appellee.

Appeals from the United States District Court for the Northern District of Alabama.

Before TUTTLE, GODBOLD and RUBIN, Circuit Judges.

GODBOLD, Circuit Judge:

Appellant, St. Louis-San Francisco Railway Company (Frisco) sued R. A. Wade & Company, a quarry operator, and Republic Steel Corporation, landowner, for damages resulting from the encroachment of a rock slide on Frisco's right of way. The slide was caused by Wade's quarrying operation. Wade counterclaimed against Frisco for damages, asserting that the railroad tortiously interfered with Wade's business by blocking the only access road to Wade's quarry.

Frisco was unsuccessful at trial. The district judge directed a verdict in favor of landowner Republic and the jury found in favor of Wade. On Wade's counterclaim, the jury found for Wade. We reverse on Frisco's claims against Wade and Republic for encroachment on the right of way and affirm the judgment in favor of Wade on its counterclaim against Frisco.

I. The facts

Frisco's predecessor acquired a 50-foot right of way from Republic's predecessor in 1892 and built its main line on it. Around 1936 Wade began quarrying operations on land owned by Republic and northward of the Frisco main line. In 1953 Frisco acquired from Republic a second right of way, a 25-foot strip north of the 1892 right of way and adjacent to Wade's quarry. It then built a siding between the main line and the quarry.

Wade works his quarry by dynamiting rock from the quarry walls and removing the broken product from the floor of the quarry. After a dynamite blast in the quarry on October 8, 1973, a rock slide occurred that encroached around 29 feet into Frisco's right(s) of way. ¹ As a result of this slide, Frisco had to close the siding until June 13, 1974, and impose a 5 m. p. h. speed restriction on its main line. Fill material had to be dropped into the area where the slide occurred. Heavy rains caused the fill to settle, which delayed the completion of the repairs. Frisco was required to install monitoring devices to detect any shifting in the land. Wade has continued to mine in the area. ²

Frisco sued Republic for breach of covenants, contained in the easement grants, not to interfere with the railroad's right of way. The district court directed a verdict in favor of Republic. Frisco sued Wade for withdrawal of lateral support and for nuisance. On the lateral support claim, the jury, through special interrogatories, concluded that Wade withdrew lateral support from Frisco's right of way and that Frisco assumed the risk of loss of lateral support. Frisco challenges the availability of an assumption of risk defense to its lateral support claim and, assuming that such a defense is available, the sufficiency of evidence to support the jury's verdict.

On the nuisance claim against Wade, the jury found that Wade did not maintain either an absolute or a negligent nuisance. Frisco argues that the jury charge on nuisance was erroneous.

Wade counterclaimed against Frisco for tortious interference with its business and won actual and punitive damages remitted to $100,000. The only road access to Wade's quarry was over Frisco's right of way. The jury found that Frisco intentionally and maliciously left its railroad cars blocking the access road, which interfered with the pick-up of Wade's product by its customers. Frisco claims that Wade had no protectible interest entitling it to cross Frisco's right of way and that there was insufficient evidence to support the jury's verdict.

II. Lateral support

The parties disagree over whether Wade's defense to the loss of lateral support was submitted to the jury on an assumption of risk theory or a consent theory. The special interrogatory called the defense assumption of risk. Wade argues, however, that the jury charge laid out the necessary elements of a consent defense; that Frisco "had a full appreciation of the risk of a subsidence and had the true intent to consent to that risk and to take such risk." It is of no consequence how the defense is categorized for purposes of this suit, because neither consent nor assumption of risk was available as a defense to the withdrawal of lateral support claim.

The Alabama law governing lateral support of land by an adjoining landowner is laid out in four cases: Moody v. McClelland, 39 Ala. 45 (1863); Myer v. Hobbs, 57 Ala. 175 (1876); H. H. Parker Bro. v. Hodgson, 172 Ala. 632, 55 So. 818 (1911); Nichols v. Woodward Iron Co., 267 Ala. 401, 103 So.2d 319 (1958). An adjoining landowner owes a duty to support his neighbor's land in its natural state. This duty does not extend to the support of any structures on the land.

"I have a natural right to the use of my land, in the situation in which it was placed by nature, surrounded and protected by the soil of the adjacent lots . . . "

But the right here alluded to only applies to land in its natural state, and the doctrine does not extend to cases where the owner of land has, by buildings, or other artificial erections, increased the lateral pressure of his land upon the adjoining soil.

Moody v. McClelland, supra at 49. There is at least an implication in the earlier cases, Moody and Myer v. Hobbs, that the duty of lateral support is only breached by the landowner's excavating with lack of care, skill and diligence. But Nichols, decided in 1958, clearly states that the duty of lateral support is absolute, and the landowner is liable for withdrawing lateral support even if he is guilty of no negligence. In Nichols The Alabama Supreme Court, quoting from 3 Lindley on Mines § 832, said:

"In the case of land which is fixed in its place, each owner has the absolute right to have the land remain in its natural condition, unaffected by any act of his neighbor; and if the neighbor digs upon or improves his own land so as to injure this right, the one injured may maintain an action against him without proof of negligence.

"The right of lateral support is an absolute one. The obligation to respect it is in no way affected by the question of negligence.

"If the owner of the adjoining land takes away the natural support it does not matter whether he acts with due care and is guilty of no negligence."

103 So.2d at 322. This view is repeated at p. 323. It is also the view of the Restatement (Second) of Torts § 817 (1977).

Frisco's claim against Wade for withdrawal of lateral support is predicated upon the foregoing absolute duty theory. Frisco made no claim that Wade acted negligently or unskillfully. Assumption of risk by Frisco was, therefore, not relevant and it was improperly asserted as a defense. ³ Turning to consent, Frisco could, of course, enter into an enforceable agreement to relieve Wade of his duty to provide lateral support. ⁴ Short of such an agreement, consent had no place in the case.

The absolute duty of lateral support extends to only land in its natural state. We do not understand this to mean that once an owner erects an artificial structure his neighbor is relieved of the duty of lateral support. Rather we think that the neighbor continues to have the same duty as before, described by the Restatement as "naturally necessary lateral support."

C. Naturally necessary lateral support. Naturally necessary lateral support is that support which the supported land itself requires and which, in its natural condition and in the natural condition of the surrounding land, it would require. It does not include the support needed because of the presence of artificial additions to or other artificial alterations in the supported land or the surrounding land. The measure of this right of the other and of this duty of the actor is the natural dependence of land upon land, and the right and duty are not enlarged by alterations of the natural condition. Lateral support made necessary by these alterations is not naturally necessary support. This distinction is more particularly stated and illustrated in Comments E to H.

D. The rule stated in this Subsection applies only to lateral support of the land itself. It does not apply to lateral support required by artificial additions on the supported land. This is true although the weight of the addition does not exceed the weight of the soil removed in erecting it. When artificial additions are present, this rule applies to that lateral support, and only that support, which the land itself requires, but not exceeding what it would require in the absence of these additions.

Restatement (2d) § 817 C & D. See also Comments E to H. In short, the duty of lateral support is neither enlarged nor diminished. We also agree with the Restatement that a landowner who breaches the duty not to withdraw "naturally necessary lateral support" is liable for harm to artificial additions to the land as well as for the harm to the natural soil itself. Restatement (2d) § 817.

We cannot accept Frisco's contention that once we conclude that the district judge incorrectly submitted the assumption of risk defense to the jury we should hold that Frisco was entitled to a directed verdict on its lateral support claim. The only interrogatory submitted to the jury on the loss of lateral support stated: "Do you find that the defendant Wade Sand & Gravel Company, Inc. withdrew lateral support from the right of way of plaintiff St. Louis-San Francisco Railroad Company, Inc.?" The court instructed the jury that Wade owed Frisco an absolute duty of lateral support for the soil, the railroad track, and any other...