Welsh Mfg. Co. v. Fitzpatrick, 8001.

• Decision Date: 22 July 1938
• Docket Number: No. 8001.,8001.
• Citation: 200 A. 981
• Parties: WELSH MFG. CO. v. FITZPATRICK, City Treasurer.
• Court: Rhode Island Supreme Court

200 A. 981

WELSH MFG. CO.

v. FITZPATRICK, City Treasurer.

No. 8001.

Supreme Court of Rhode Island.

July 22, 1938.

Exceptions from Superior Court, Providence and Bristol Counties; Mortimer A. Sullivan, Judge.

Action by the Welsh Manufacturing Company against Walter F. Fitzpatrick, City Treasurer of the City of Providence, for injury to property alleged to have been caused by construction of certain sewers. Verdict for plaintiff for $10,763.82, and from denial of motion for new trial, defendant brings exception.

Exception sustained and case remitted for new trial.

Hoyt W. Lark, David B. Lovell, Jr., and Hart, Gainer & Carr, all of Providence, for plaintiff. Daniel E. Geary, City Sol., and John T. Walsh and Francis D. McManus, Asst. City Sols., all of Providence, for defendant.

MOSS, Justice.

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This is an action of the case brought against the city of Providence, which is sued in the name of its treasurer, to recover for damages to a building belonging to the plaintiff and located at the southeasterly corner of Oak and Troy streets in that city. The plaintiff alleged that these damages had been caused by certain sewer construction work carried on by the city in Troy street in July and August 1933.

The plaintiff in its declaration alleged that this work was carried on by the city in such a manner that the adjacent and subjacent soil which supported the plaintiff's land was removed, whereupon the plaintiff's land was caused to slip, settle, subside and give way, and that as a result of the settlement of said land, the buildings belonging to the plaintiff upon said land settled and were damaged. The first count of the declaration was based on the absolute duty of the owner or occupant of one parcel of land not to take away the lateral support of adjoining land belonging to another. The other two counts alleged negligence by the city in the operations carried on by it in the street. The defendant pleaded the general issue to each of the counts and the case was tried before a jury in the superior court.

At the conclusion of the evidence it was agreed by the parties that no negligence by the city had been shown, and the last two counts were therefore withdrawn from the consideration of the jury. The jury returned a verdict for the plaintiff for $10,763.82, the exact amount of the claim which the plaintiff, before bringing this action, had filed with the city for the same damages.

The defendant in due course filed a motion for a new trial on the grounds that the verdict was against the law; that it was against the evidence and the weight thereof; that it was against the law and the evidence and the weight thereof; that the damages were excessive and that it did not do substantial justice to the parties. This motion was denied by the trial justice and the case is now before us on the defendant's exception to the denial of this motion and on various exceptions taken by the defendant to rulings by the trial justice as to the admission of evidence and as to the charge to the jury.

On May 1, 1931, the plaintiff purchased from the American Woolen Company the property with which this case is concerned, being the land and improvements thereon located at the southeasterly corner of Oak street, running about east and west, and Troy street, running about north and south. The area of the land is about 40,000 square feet; and on it, at the corner of the streets, there is what may be called a double building. The westerly and much older part of it, referred to at the trial as building No. 1, is located just at the corner and measures 40 feet on Oak street and 60 feet on Troy street. The bottom story of it is about one hundred years old and has walls of rubble, made of rough, irregular stones and mortar. The foundations are of the same construction and are supported by piles driven into the ground. Some years after it was built two additional stories were added to it, of which the walls are of brick. The easterly part of the double building was referred to at the trial as building No. 2 and is much more modern. It is directly east of building No. 1, with a common partition wall and stairway between them; and it bounds 160 feet on Oak street. There is a wooden frame building which joins onto the south side of building No. 1, but we are not concerned with it.

In 1893 the city ran a 60 inch trunkline sewer through Oak street, on the north side of the property, as far as Troy street, and then continued it north through Troy street In 1913 a 24 inch trunkline sewer was laid in Troy street from its intersection with Oak street southerly to Magnolia street, the next one south of Oak street, and on west through that street. In 1927 the city laid a 48 inch lock-joint water main about in the middle of Troy street; and between this water main and the lot lines on the east side of that street a 15 inch sanitary sewer was laid to take care of the sewerage of the adjoining lots. Before 1933 a portion of that sewer, from a manhole in Troy street situated a short distance southwest of the southwest corner of building No. 1 to a point in Magnolia street west of Troy street, had settled at some places as much as 2 feet 9 inches.

In 1933 the city, in order to have a by-pass sewer to take the place of the sunken portion of the earlier sewer, laid the 24 inch sewer which is directly involved in this case. This ran from the manhole in a diagonal southwest direction till it reached about the middle of the westerly half of Troy street and then ran south in that half of the street as far as Magnolia street.

Uncontradicted testimony for the defendant showed that just before the work of laying the 48 inch water main began in 1927, a Mr. Marsh, who was then an engineer in the employment of the city, with supervision over that work, had an examination and photographs made of the building involved in this case. He did this because he had observed cracks which showed in the outside walls of that building and he wished to preserve definite evidence of these cracks. A number of these photographs, clearly proved and identified, were introduced in evidence at the trial of this case.

Some of these photographs clearly show pronounced cracks, roughly perpendicular, in the northerly part of the west rubble wall of building No. 1. One of these cracks extends even into the brick wall above; and one of them, at least, only a short distance south of the northwest corner of the building extends to the ground. Another photograph clearly shows a crack in the brick wall on the north side of the same building, located about midway and running from lower left to upper right between two outside door openings on the second and third floors, respectively. Mr. Marsh also testified that at the time when these photographs were taken he observed other cracks, which did not show in any of the photographs. This evidence and other evidence in the case on both sides showed convincingly, in our judgment, that there had been a pronounced settlement of the west rubble wall of building No. 1, at and a little south of the northwest corner of that building, in or before 1927, some six years or more before the beginning of the excavation by the city which is directly involved in the present case.

At the trial the testimony showed clearly that the excavation which is now complained of began on July 5, 1933 at the manhole near the east side of Troy street, just about 72.1 feet from the northwest corner of the building and just about 22.4 feet southwest from its southwest corner. As above stated, it is admitted that the work was done with due care. The excavation varied in width, as the work progressed, from 4 feet to 6 feet and in depth from 11.7 feet to 13.75 feet. After the street surface was taken off, the soil dug into was miscellaneous filling down to a depth of about 4 to 5 feet, where peat was encountered that varied in thickness from 6 inches at the manhole to a greater depth at Magnolia street. The rest of the excavation was through sand. The witnesses for the defendant on the subject testified that it was coarse sand, while several witnesses for the plaintiff testified that it was very fine sand.

A few feet from the surface of the ground, water was encountered and, to prevent it from seriously interfering with the digging, a narrow trench was dug down, to the depth of a foot, in the middle of the sewer trench; and an underdrain was then installed leading to a hole called a "sump", which was dug down into the ground some feet southwest of the manhole. The bottom of this sump was a little below the level of the underdrain and was covered to a depth of several inches with gravel to prevent sand from coming up through the bottom with the water; and the sides of, the sump were sheathed for a similar purpose. A centrifugal pump was then installed, which drew water from the sump and discharged it on the street at a point not far south, from which it ran over the street to an opening into the main sewer.

As to whether sand was drawn out from the sump, with the water, was one of the principal issues in the case. Witnesses for the defendant testified that practically no sand at all was drawn out with the water, while witnesses for the plaintiff testified that very large quantities of very fine sand were so drawn out. The plaintiff contended that this alleged withdrawal of large quantities of sand from the bottom of the trench caused a movement of a stratum of sand, filled with water, which seems to have underlain, some distance down, all the surface of the land in this neighborhood.

The evidence shows that about a month or six weeks after the completion of this sewer construction work in Troy street the plaintiff's building No. 1 began to settle and crack, especially in its north side and on the northerly part of its west side, and that it continued to settle until it was badly damaged. In consequence, the plaintiff contends that the evidence in the case makes it one that is ...