The City of Quincy v. Jones

• Decision Date: 31 January 1875
• Citation: 1875 WL 8179,76 Ill. 231,20 Am.Rep. 243
• Parties: THE CITY OF QUINCYv.LAURA JONES et al.
• Court: Illinois Supreme Court

76 Ill. 231

1875 WL 8179 (Ill.)

20 Am.Rep. 243

THE CITY OF QUINCY

v.LAURA JONES et al.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Adams county; the Hon. JOSEPH SIBLEY, Judge, presiding.

This was an action on the case, by Laura Jones, Carrie E. Jones, Harry E. Jones and Charles F. Jones, by Owen Thorn, their guardian, against the City of Quincy.

The first count of the declaration alleged, in substance, that at the time of the injury complained of, one Caroline Thorn, who was formerly the widow of Jehu P. Jones, deceased, was in the possession of a dwelling house and grounds, being the south half of lot 1, in block 5, of the original town, now city of Quincy, and in which said Jehu P. Jones resided at his death, in 1868, as his home and homestead; that the dower of the said Caroline, his widow, had never been assigned in the premises; that said Jehu P. Jones died owning the premises, and leaving the said Caroline, his widow, and the plaintiffs his heirs at law, and that they are entitled to the reversion in said premises upon the death of said Caroline; that after the death of the said Jehu P. Jones, and while said Caroline was in possession as his widow, in December, 1868, the defendant carelessly and negligently made a deep cut in the earth adjoining said premises, whereby said house became undermined and of little value, and had to be removed, and the lot caved and fell in, and became of little value and unfit to be built upon, etc.

The second count was substantially the same, except that it alleged that the premises had been occupied by Jehu P. Jones and his widow more than twenty years, and adjoined Second street of said city, and that the earth in said street for said time had been, and was the lateral support of said house and premises, and that the earth in said street was removed by the city, so that such lateral support was destroyed and the damage occasioned.

The third count was substantially the same. The plea of not guilty was filed and a trial had, resulting in a verdict and judgment for $2000 in favor of the plaintiffs. The city appealed. Messrs. SKINNER & MARSH, for the plaintiff in error.

Messrs. WHEAT & MARCY, and Messrs. WARREN, WHEAT & HAMILTON, for the defendants in error.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The several errors assigned upon the rulings of the court below, present, in our opinion, but two material questions:

First. Are municipal corporations, while acting within the scope of their municipal authority in making excavations in streets for the purpose of opening or improving them, liable to property owners for injuries to buildings erected on lots abutting on the streets, resulting from the removal of the lateral support of the soil in the streets?

Second. Does the owner of a city lot, abutting on a public street, acquire a prescriptive right to have the buildings and structures on such lot sustained by the lateral support of the soil in the street, by the mere failure of the city to remove the soil within such time as would, in a proper case, afford evidence of a prescriptive right against an individual?

In Nevins v. Peoria, 41 Ill. 507, which was an action on the case for negligence in grading a street, whereby the flow of water was diverted from its natural channel, and thrown on the plaintiff's property, this general principle, equally applicable to the present case, was announced:

“The city is the owner of the streets, and the legislature has given it power to grade them, but it has no more power over them than an individual has over his land, and it can not, under the specious plea of public convenience, be permitted to exercise that dominion to the injury of another's property, in a mode that would render a private individual responsible in damages, without being responsible itself.”

In support of the rulings of the court below, defendants in error insist that it is a well settled rule of law, that the owner of land has a right to have the soil of his premises sustained by the lateral support of the natural soil of the adjoining land, and they cite Humphries v. Brogden, 12 Q. B. 743; Thurston v. Hancock, 12 Mass. 229; Farrand v. Marshall, 21 Barb. 409; Rolle's Abr. 665. An examination of these authorities, however, will show that this right of lateral support is limited to the soil in its natural state, and that it does not extend to the support of any additional weight which the owner of the soil may place upon it.

The reference found in Rolle is this:

“If A be seized in fee of land next adjoining the land of B, and A erect a new house on the confines of his land next adjoining the land of B, and if B afterwards dig his land so near the foundation of A's house, but no part of the land of A, that thereby the foundation of the house and the house itself fall into the pit, yet no action lies by A against B, because it was A's own fault that he built his house so near to B's land, for he, by his act, can not hinder B from making the best use of his own land that he can. But semble, that a man who has land next adjoining my land, can not dig his land so near mine, that thereby my land shall go into his pit; and, therefore, if the action had been brought for that, it would lie.”

The facts in Thurston v. Hancock, were, briefly, these: In 1802, the plaintiff purchased a lot upon Beacon Hill, in the city of Boston, and in 1804 built a valuable house on it within two feet of his line. In 1811 the defendant became the owner of the adjoining lot, and began to dig down the hill, and had dug within five or six feet of the plaintiff's lot, when the earth gave way and exposed the foundations of plaintiff's house, and he had to take it down. The court held that the plaintiff was without remedy for the injury to his house, saying: “A man, in digging upon his own land, is to have regard to the position of his neighbor's land, and the probable consequences to his neighbor. If he digs too near his line, and if he disturbs the natural state of the soil, he shall answer in damages; but he is answerable only for the natural and necessary consequence of his act, and not for the value of a house put upon, or near, the line by his neighbor. For in so placing the house, the neighbor was in fault, and ought to have taken better care of his interests. * * * He built at his peril, for it was not possible for him, merely by building upon his own ground, to deprive the other party of such use of his as he should deem most advantageous. * * For the loss of or injury to the soil merely, his action may be maintained. The defendants should have anticipated the consequences of digging so near the line, and they are answerable for the direct consequential damage to the plaintiff, although not for the adventitious damages arising from putting his house in a dangerous position.”

Humphries v. Brogden, was an action for injury to plaintiff's land by the removal of the minerals under the surface, so that the land subsided, cracked, and was materially injured. Lord CAMPBELL, after reviewing the English cases upon the subject, among other things, said: “Where there are separate freeholds, from the surface of the lands and the minerals belonging to different owners, we are of the opinion that the owner of the surface, while unincumbered by buildings, and in its natural state, is entitled to have it supported by the subjacent mineral strata.”

Farrand v. Marshall simply decides, that a man may dig on his own land, but not so near that of his neighbor as to cause the land of the latter to fall into the pit, and is not in conflict with the rule that the owner of a building, in the absence of a grant or prescriptive right, is not entitled to have it sustained by the lateral support of his neighbor's soil. After a somewhat extended and careful examination, we have been unable to find any serious conflict in the decisions, either English or American, on this particular question, and, therefore, deem it necessary to refer to but a few additional cases in its further elucidation.

In Panton v. Holland, 17 Johns. 92, plaintiff was the owner of a house and lot in the city of New York, and the defendant, in erecting a house on an adjacent lot, in order to lay the foundation, dug some distance below the foundation of the plaintiff's house, in consequence of which one of the corners of the plaintiff's house settled, the walls were cracked, and the house, in other respects, injured. It was held that the plaintiff was not entitled to recover, unless on the ground of negligence in the defendant in not taking reasonable care to prevent the injury.

In Lasala v. Holbrook, 4 Paige, 169, complainants were seized of certain lots in the city of New York, on which was a church, erected many years before the filing of the bill. The defendant was the owner of an adjoining lot, and commenced the erection of a building which was intended to cover the whole lot, and to be six stories high. He was sinking the foundations of the building sixteen feet below the natural surface of the ground, and ten feet lower than the foundation of the church. It was claimed that, by excavating the lot in this manner, the defendant would greatly endanger the church; that one corner of the walls thereof, opposite which the excavation had been completed, had settled so as to leave a crack in the wall, and it was prayed that the defendant be enjoined from making the excavation.

Chancellor WALWORTH said: “I can readily believe, from the nature of the soil, and from the great depth of the defendant's intended excavation, below the foundation of the church, that the complainants' fears for the safety of their building are not entirely groundless. * * * It is not, however, alleged in the bill that the defendant is proceeding to improve his property in an unreasonable or unusual manner, or with any intention of injuring their wall or building. * * * I have a natural right to the use...