Stevenson v. Wallace

• Decision Date: 27 January 1876
• Citation: 68 Va. 77
• Parties: STEVENSON v. WALLACE.
• Court: Virginia Supreme Court

68 Va. 77

STEVENSON v. WALLACE.

Supreme Court of Appeals of Virginia.

January 27, 1876

1. Every person has a natural right, ex jure naturæ , to support to his land from the adjacent and subjacent soil.

2. This natural right to support exists in respect of land only, and not in respect of buildings; but the former right remains though houses are built on the land.

3. But a right to support for buildings may be acquired; and when so acquired it is an easement.

4. An easement for support of a building is acquired by grant which may be express, implied or presumed. And when acquired it gives the same right of support in respect of the buildings that there was ex jure naturæ in respect of the land.

5. The grant of such an easement will be presumed from twenty years enjoyment; and will be implied, in the absence of express stipulations, in every case where the owner of adjoining houses or of houses and lands severs the property by sale. Rights of support in such cases are mutually granted and reserved between the original owner and first grantee, and the second grantee succeeds to the owner's reserved rights.

6. M owns two adjoining lots in R. He conveys one with a house on it to R and reserves in the deed the right to join the two end walls of the house free of costs. M retained the right which passed with the land to those who derive title under him, to join his building to that conveyed to R, by an independent wall along side of it, or to make it a part of his building by joining only the end walls: and the privilege of joining R's building in the mode indicated in the reservation, did not extinguish or impair his implied reservation of support.

7. If S holding title to the second lot had a building upon it, which was supported by the land and building conveyed to R for twenty years or more with the knowledge of the owner thereof prior to a fire which destroyed both buildings, a grant of the easement of support will be presumed; and said easement was not lost or extinguished by the destruction of S's building, but adhered to the building S erected on its ruins and any right of support which S derived from the reservation in the deed to R, express or implied, was not extinguished by the destruction of the old building, but survived and adhered to the new one.

8. The mere fact of contiguity of buildings imposes an obligation upon the owners, to use due care and skill in removing the one building, not to damage the other, even though no right to support has been acquired.

9. But if in such case S is entitled to the support of her building by the foundation wall and land of W, claiming under R, W cannot withdraw the support without being liable in damages for the injury which occurs to S thereby.

10. In such a case S is not bound to protect her building by providing other supports, in place of the supports which W is removing, though she may have had notice that W was removing the supports.

11. If the house of S was so badly constructed and its foundation and materials were so defective that the fall could not have been arrested by timely precautions when W was excavating upon his lot in order to build upon it, these facts would not constitute a bar to the action of S against W, so as to defeat it; but they would be proper to be considered by the jury upon the question of damages.

12. Though W contracted with an experienced and competent excavator, of good standing in his business, to make the excavations upon his own lot, and gave notice thereof to S in time to enable her to adopt precautions for the protection of her adjoining building, W is still liable for any damage that may have resulted to S's building in consequence of negligence or unskillfulness in the making of said excavation by reason of leaving insufficient support to S's premises.

13. If upon a trial instructions are given to the jury, to which no exception is taken, and after verdict a motion is made for a new trial, on the ground of misdirection as well as that the verdict is contrary to the evidence, it is the duty of the court of trial to consider the correctness of the instructions, and if of opinion that they are not correct and were calculated to mislead the jury, to set aside the verdict and grant a new trial; and the appellate court will supervise his actions in this respect.

This was an action of trespass on the case in the Circuit court of the city of Richmond, brought in April 1872, by L. T. Stevenson against Charles M. Wallace, to recover damages for injury to the plaintiff's house by excavation by the defendant made on his adjoining lot. On the trial the judge gave several instructions to the jury, to which the plaintiff did not except; and there was a verdict and judgment for the defendant.

The instructions are as follows:

" 1. The jury are instructed, that the plaintiff was not entitled to demand of the defendant the lateral support of his land for her adjoining building to any extent which deprived him of the right to excavate thereon for the purpose of building, or imposed upon him liability for damages consequent upon the prudent and careful exercise of that right.

2. But the jury are further instructed, that it was the duty of the defendant before proceeding to make his excavation and endanger the safety of the plaintiff's building, to give her timely notice to enable her to adopt suitable precautions for the protection of her property; and that if he failed to do so, he was guilty of negligence, and is liable to the plaintiff for such damages as were consequent upon the excavation, and which the plaintiff could not after knowledge of the danger avert by prompt and diligent action.

3. If the jury believe from the evidence, that the building of the plaintiff was so badly constructed, and its foundation and materials so defective, that the fall could not have been averted by timely precautions when the excavation was made by the defendant, or that the plaintiff, or her agents, after they had knowledge of the necessity, could have then, by prompt and provident action, protected the building, and neglected to do so, or that they prevented the defendant from doing so by refusing to allow him to build a foundation on that part of his wall occupied by the plaintiff, or by retaining illegal possession and occupancy of a part of his rear wall, in either event the plaintiff cannot recover in this action.

4. The court instructs the jury, that if they believe from the evidence that the defendant contracted with an experienced and competent excavator, of good standing in his business, to make the excavations in the declaration mentioned upon the defendant's own lot, and gave notice thereof to the plaintiff in time to enable her to adopt precautions for the protection of her adjoining building, or if she had such knowledge in such time, the defendant is not liable for any damage which may have resulted to the plaintiff's premises in consequence of negligence or unskillfulness, if any, in the making of said excavation by reason of leaving insufficient support to the plaintiff's premises or otherwise."

At the same term the plaintiff moved the court to set aside the judgment and verdict and grant her a new trial, on the grounds that the verdict was contrary to the evidence, and that the court had misdirected the jury; and the court set aside the judgment; and not being advised of its judgment to be given on the motion to set aside the verdict, time was taken to consider thereof until the next term.

At the next term of the court, the court overruled the motion for a new trial; and the plaintiff excepted; and the evidence being in some respects contradictory the court declined to certify the facts proved, but certified the evidence.

By deed bearing date the 1st of May 1817, Joseph Marx and wife conveyed to Thomas Richardson a lot on Thirteenth street, between Main and Cary streets, in the city of Richmond, with a brick tenement thereon; and Marx reserved to himself the right of joining the two end walls of said tenement free of cost. This is the lot owned by the defendant Wallace.

By another deed, bearing date the 8th of July 1817, Joseph Marx and wife conveyed to Mary Stevenson a lot on Thirteenth street, adjoining the lot he had conveyed to Richardson; and further conveyed to her the privilege of joining the end walls of the brick tenement conveyed to Richardson free of cost.

Buildings were standing on both these lots on the 3rd of April 1865, when they were consumed in the great fire of that day. In the year 1866 plaintiff's lot was leased to one Bauman, for the term of five years, who bound himself to erect a building thereon; and Bauman did erect the building, and at the end of his lease he rented the premises for six months; and during this period the plaintiff's building fell. It appeared in evidence, that in building, Bauman had built the main building upon a new foundation close against the foundation wall of the old building on the defendant's lot, which was standing thereon at the time Marx conveyed to Richardson, and had been burnt in 1865, but from the end of the house had occupied the wall of the defendant as a support for a kitchen in the rear.

It was further shown in evidence that the defendant in the fall of 1872, proposing to build upon his lot, contracted with a mechanic in writing as follows: " I propose to clean out the cellar on 13th street, which you spoke to me about to the depth of nine feet, below the offset on the wall adjoining, for one hundred and forty-four dollars, and clean and hack the bricks for sixty cents per thousand.

W. T. FORD."

Richmond, October 10, 1871.

C. M. Wallace, Esq.

Endorsed Feb'y 17th, 1872:

Rec'd on within contract the sum of one hundred and forty-four...