Tunstall v. Christian

• Decision Date: 08 January 1885
• Citation: 80 Va. 1
• Parties: TUNSTALL, TRUSTEE, & C., v. CHRISTIAN, TRUSTEE, & C.
• Court: Virginia Supreme Court

80 Va. 1

TUNSTALL, TRUSTEE, & C., v. CHRISTIAN, TRUSTEE, & C.

Supreme Court of Appeals of Virginia.

January 8, 1885

Appeal from decree of corporation court of Lynchburg, rendered August 1st, 1882, in a chancery suit wherein Camillus Christian, trustee for Mary D. Christian, and Mary P. Davis and als. were complainants, and A. A. Tunstall, trustee for Mary M. Brooks and als. were defendants.

In 1820 two adjoining lots in Lynchburg, on each whereof was a light two-story wooden building, were owned by John Lynch. He conveyed one to his son-in-law, Alexander Liggatt, the father of Mrs. Brooks, one of the appellants. He devised the other to his daughter, Mrs. Zolinda Davis, under whom the appellees claim. The building on the latter lot was destroyed by fire a similar one was erected in its place, and also destroyed. The appellees then, in 1877, erected a large, three-story brick store in its place, greatly enlarging the former excavations for that purpose. In 1882 the appellant removed the old building from Mrs. Brooks' lot to make way for a large and expensive building, and notified the appellee to protect his property from any injury which might result from the increased size and depth of the proposed excavation. The appellant began the work, and the appellee filed his bill in said corporation court, praying for an injunction to restrain him. The bill charged that the proposed building was of such size and character that the necessary excavations therefor would go below the foundation of his building, and would throw it down and destroy it, and claimed the right to support for his land and building from the adjacent and subjacent soil. An injunction was granted until further order. The defendant answered, denying the right to support and that the proposed building was unnecessarily large, & c Evidence was taken on both sides. At the hearing the corporation court perpetuated the injunction restraining the defendant from excavating within ten feet of the foundation of the plaintiff's building on a horizontal line at a right angle. From this decree an appeal was allowed the defendant, Tunstall.

Other facts are stated in the opinion.

Kean & Kean and A. A. Tunstall, for the appellants.

Christian & Christian, for the appellees.

OPINION

LEWIS, P.

The questions to be determined are--first, whether the appellees have acquired, by prescription, the right to lateral support for their building from the adjoining soil of the appellants; and if not, then second, whether such right has been acquired by implication.

1. It is well settled that the right to support for land from the adjacent and subjacent soil is a natural right, analogous to the flow of a natural river or of air. It stands on natural justice, and is not dependant upon grant; and for an invasion of the right an action is maintainable without proof of negligence. But the right is confined to the soil in its natural condition. It does not extend to buildings or other artificial burdens thereon, increasing the downward and lateral pressure. And therefore, if one by digging in his own soil occasions damage to the building of the adjoining owner, he is not liable therefor in an action by the latter, provided he has used due care and caution, and the plaintiff has not acquired the right to support in some mode recognized by law. 2 Rolle Abr. 564; Stevenson v. Wallace, 27 Gratt. 77; Thurston v. Hancock, 12 Mass. 220; Gilmore v. Driscoll, 122 Id. 199; Transportation Co. v. Chicago, 99 U.S. 635; Penton v. Holland, 17 Johns. 92; Radcliff's ex'ors v. The Mayor, & c., 4 N.Y. 195; Charless v. Rankin, 22 Mo. 567.

The right to support for artificial burdens on land is an easement, and can be acquired only by grant, express or implied. According to the English decisions this right, which is treated as analogous to the right to light and air, may be acquired by prescription. In other words, a grant is presumed from lapse of time and accompanying facts. Stansell v. Jollard, 1 Selw. N. P. 445, Humphries v. Brogden, 12 Q. B. 749; Dalton v. Angus, 6 Appeal cases, L. R. 740.

But the English doctrine of " ancient lights" has been repudiated by the American courts as irreconcilable with principle, and not adapted to the rapid physical development of the country, especially in cities and towns. " And in this," says Washburn in his work on Easement, " is witnessed another illustration of the influence of those silent agencies which are constantly at work in a free community, in adapting and giving form and consistency to the rules of its common law, to meet the wants and conditions of the body politic." Ch. 4, sec. 6, p. 17; see also Parker v. Foote, 19 Wend. 308; Pierre v. Fernall, 26 Me. 436; Haverstick v. Sipe, 33 Penn. St. 368; Napier v. Bulwinkle, 5 Rich. (S. C.) 311; Keats v. Hugo, 115 Mass. 204; Rogers v. Sawin, 10 Gray 376; Smith v. White, 11 Md. 23; Powell v. Sims, 5 W.Va. 1; Hubbard v. Town, 33 Vt. 295.

In a note to the case of Stein v. Hauck, 17 Am. Law Register (July, 1878), p. 440, a learned writer reviews the cases, and concludes as follows; " In view of the course of our decisions on this question, we think it may be reasonably concluded that, notwithstanding some early opinions to the contrary, it cannot now be safely asserted that the doctrine of a right to light and air by a mere prescriptive use prevails at present in a single American State."

The same reasoning would seem to apply with equal force to the English doctrine of a prescriptive right to support for buildings.

It is true that in some of the American cases are to be found dicta of the judges in favor of the doctrine. And in Stevenson v. Wallace, 27 Gratt., supra, there are expressions in the opinion of the court, founded on certain English cases, to the same effect. But the decision of the question was not necessarily involved, inasmuch as the right asserted in that case was held to be clearly implied from the terms of a deed by a common predecessor in title of the parties.

The doctrine may well enough apply to the acquisition of a right of way, or to the use of water and the like, but it is difficult to see how, on principle, it can be held to apply to a case like the present; for when a man builds on his own soil to its extremity he simply exercises a lawful right. He does not encroach upon the soil or invade the rights of his neighbor, and consequently there is nothing of which the latter can complain. Now, to acquire an easement by prescription, it is essential that the user be not only honest and uninterrupted for a number of years, but open and adverse, and it must be with the acquiescence of the owner of the servient tenement. 2 Min. Insts. 492, et seq. But how, under the circumstances mentioned, can there be said to be an adverse use of another's property? Or how can the acquiescence of one in an act be implied who has neither the right nor the power to prevent it? It is true that, in order to prevent the acquisition of the right, the adjoining owner might, by excavating in his own soil, bring down his neighbor's building before the right to support could be fully acquired. But such an extraordinary and unneighborly act would not only involve labor and expense, but might endanger and perhaps destroy his own house. And how can a man be reasonably required to injure his own property in order to preserve his rights respecting it?

The doctrine contended for by the appellees, whether heretofore maintained as resting on an absolute rule of law, or on the ordinary principles of prescription, is at variance with reason, and ought to be rejected. It may have been adapted to the age in which it was first announced in England, but is unsuited to the building of cities and towns in a progressive country like ours at the present day.

Fortunately authority is not wanting in support of these views. The question arose and was carefully considered in a recent case by the supreme court of Georgia, in which it was held that the right to support for buildings can on no principle known to the law be acquired by prescription. Mitchell v. Mayor of Rome, & c., 49 Ga. 19. The court said: " Neither in the case of the window opening out on another man's land, or of a building erected on the dividing line, has the owner committed an act against which his neighbor can protest. He has not touched his property, or invaded any right, or given any cause of action. He had a right to use or build on his lot to the furthest limit of his boundary. He has only done this, and never has had any use, or possession, or enjoyment of any right, corporeal or incorporeal, belonging to another, to which objection could in any form be made; and it would, therefore, be a misuse as well as an abuse of the terms license, grant, and acquiescence to say that he has acquired a right by means thereof from the owner of the adjoining lot. This was so expressly...