Walker v. Strosnider
| Decision Date | 15 February 1910 |
| Parties | WALKER et al. v. STROSNIDER. |
| Court | West Virginia Supreme Court |
On Rehearing, May 18, 1910.
Syllabus by the Court.
An owner of land is entitled, ex jure naturæ, to lateral support in the adjacent land for his soil, but not for buildings erected thereon.
An excavation, made by an adjacent owner, so as to take away the lateral support, afforded to his neighbor's ground, by the earth so removed, and cause it, of its own weight, to fall, slide, or break away, makes the former liable for the injury, no matter how carefully he may have excavated. Such right of support is a property right and absolute.
Though an adjoining owner has no right of support in his neighbor's land for his buildings, unless he has acquired it by grant or otherwise, and the latter may excavate in his land so as to cause them to fall, without committing a trespass or taking away a property right, provided the adjacent soil would not have fallen of its own weight, he may nevertheless be liable in respect to his conduct for the injury done.
An adjoining owner, excavating on his own land, must exercise reasonable care, prudence, and skill in doing so for the safety of buildings, if any, standing on the adjacent land. This duty is enjoined, not by any right of support, ex jure naturæ, that the owner of the building has in the adjoining land, but by a legal rule of conduct requiring every owner of property so to use it as not to injure his neighbor's.
In altering the condition of his land adjoining another's building by excavating the soil and replacing it with a structure, the owner must not only abstain from collateral negligent or wrongful acts, such as unnecessarily heavy blasting, digging out the adjacent wall, projecting heavy articles against the wall or building, and the like, but must perform the work with reasonable care for the safety of the adjacent building, such as diligence in the construction of his wall after having removed the soil, removal of the soil and replacement thereof with the wall by sections, if necessary as a measure of reasonable precaution, or the adoption of other reasonable and practicable precautions.
In such case the measure of his duty goes beyond the exercise of care in making the excavation, a mere incident of the alteration intended, and extends to reasonable means of temporary support of the adjacent building, while the work of erecting the new structure is in progress.
Though this duty respecting adjacent buildings is imposed by law upon a person, while engaged in altering the condition of his own property, he is not a guarantor of their safety, nor bound to take precautions, or adopt measures, for their protection beyond such as are reasonably practicable, not unduly expensive, and amount to reasonable and ordinary care and prudence for their safety.
In such case the adjoining owner is under the further duty of giving the owner of the building notice of his intention to alter the condition of his property, the character of the alteration to be made and the time thereof, and allow him opportunity to adopt such further measures for the absolute protection and security of his building as he may see fit to adopt.
The giving of f ormal notice is unnecessary in such case, if the owner of the building has full knowledge of the character and time of the making of the alteration and opportunity to adopt protective measures for the safety of his building.
Such notice or knowledge on the part of the owner of the building does not absolve the adjoining owner from duty to exercise reasonable care and prudence to avoid injury to the building in improving his own property. The giving of such notice when necessary, is simply an additional precaution, omission of which would, under some circumstances, amount to negligence.
The duty of the owner of the building to prop it up, if necessary, is not inconsistent with the requirement of care on the part of the adjoining owner in the improvement of his property. If the latter exercises reasonable care and injury nevertheless results, he is not liable, the loss being attributable in law to the failure of the owner to do further things necessary to absolute security. If, on the contrary he did not exercise such care, he is liable, although the owner could have prevented the injury.
Neither defective or improper construction of the building, nor its use for manufacturing purposes, involving the running of machinery therein, will bar an action for damages for injury thereto, resulting from negligent excavating, under the law of contributory negligence. The excavator must deal with the conditions as he finds them, using reasonable and ordinary care, under all the circumstances, to avoid injury to the building and its contents.
In case of the fall of a building, occasioned by negligent excavation, a tenant of a single floor or room thereof, deprived of his right of occupancy and use, and sustaining loss of personal property by reason of the fall, has a right of action for at least nominal damages in respect to the tenancy, and for consequential damages in respect to the personal property injured and destroyed.
Employment under a contract, defining not only what is to be done, but also the manner in which the work is to be executed, is not independent, and, if injury to a third person result from the performance of the work in conformity with such contract, and the thing done or the manner of its performance if wrongful or negligent, the employer is liable.
If an adjoining owner, about to excavate along the side of a building belonging to another person for the erection of a building on his own property, adopt, as a means of protecting the building, the cutting of a trench and construction of a concrete retaining wall therein, four feet from the building along the side thereof, and then running directly to one corner thereof, and let the work of cutting the trench and constructing the retaining wall to contractors, under contracts, leaving to them no discretion as to where or how such wall shall be constructed, and such measure of protection does not amount to the exercise of reasonable and ordinary care for the safety of the building, and, by reason of such neglect, the building falls, the employer is liable.
It suffices in a declaration seeking damages for an injury to a building or a tenant thereof resulting from negligent excavation to set forth the relative situation of the properties, the interest of the plaintiff, the duty of the defendant, the acts done, and the results, and charge that the work was done injuriously, wrongfully, carelessly, and negligently.
The opinion of a witness as to the physical cause of the fall of a building, who, being in it just a few minutes before it fell, observed indications of the impending collapse and was on the premises and examined it immediately after it fell, is admissible in evidence, on the ground that the impression made upon his mind at the time is in the nature of a physical fact, and the further ground of his obvious inability to portray to the jury all the facts tending to produce the impression.
Opinions of expert witnesses, based on assumed facts, stated in hypothetical questions embodied in depositions, taken in advance of trial, may be read as evidence on the trial, provided evidence of all the facts on which they were based has been introduced.
Exclusion of evidence, constituting no ground of defense, offered by a defendant, though admissible, if offered by the plaintiff, as tending to sustain the action, is not prejudicial to the former, and therefore not erroneous.
To sustain an exception for refusal to permit a witness to answer a question, the record must show what answer the witness was expected to make.
It is not error to refuse instructions so framed as to give them a tendency to mislead the jury.
In an action for injury to the contents of a building by alleged negligent alteration of the condition of adjacent property, it is reversible error to refuse an instruction telling the jury they should find for the defendant unless they believe the injury was the natural and probable consequence of negligence or a wrongful act on the part of the defendant, and that such consequence ought to have been foreseen by him in the light of the attending circumstances.
Error to Circuit Court, Mingo County.
Action by Ed. L. Walker and others against John Strosnider. Judgment for plaintiffs, and defendant brings error. Reversed and remanded for new trial.
Sheppard, Goodykoontz & Scherr and Brown & Wiles, for plaintiff in error.
Stokes & Bronson, for defendants in error.
Assigning numerous errors, John Strosnider complains of a judgment of the circuit court of Mingo county in an action brought against him by Ed. L. Walker and Kenna Blackburn for damages resulting to them from the fall of a brick building in which they were conducting a printing business; the ground of Strosnider's liability being negligence in effecting an excavation on his own adjoining property, in consequence of which the building fell, injuring and destroying the printing presses, type, and other materials.
According to the contentions found in the briefs, the case involves primarily the relative rights of adjacent owners in respect to lateral support; and, secondarily, the right of a lessee in that respect. The ascertainment of these rights and reciprocal duties will settle most of the questions discussed. The sufficiency of the declaration, the propriety of rulings on instructions, and the admission and rejection of evidence, constituting the sub-subjects of complaint in the assignments of error, must in most instances be determined by the same general...
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