White v. Dresser

• Decision Date: 19 June 1883
• Parties: Aaron White v. Sylvester Dresser
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

135 Mass. 150

Aaron White v. Sylvester Dresser

Supreme Court of Massachusetts

June 19, 1883

Argued October 6, 1882

Worcester. Tort for injuries caused by the excavation of land adjoining that of the plaintiff. Trial in the Superior Court without a jury, before Mason, J., who allowed a bill of exceptions, in substance as follows:

There was evidence tending to show that the plaintiff owned a tract of land in Dudley; that he had planted a grove of pine trees in a circular form near one side of it, which he designed for a burial-place. There was no evidence that the defendant knew of this design. The evidence further tended to show that the land adjoining the plaintiff's land was owned by the New York and New England Railroad Company, which gave the defendant an oral license to go upon it and dig sand for making brick; that the defendant, in pursuance of said license, went upon the land, by his servants and agents, and excavated the sand over a considerable area; that at one point he excavated so near to the line of the plaintiff's land, that a part of a common farm wall between two and three feet high, fell down for a distance of about twenty feet, and a portion of the surface of the earth on the plaintiff's side of said wall, namely, the surface of a piece of land about three feet wide at the widest place, and coming to a point at either end, and being about twenty feet long, also fell down.

The evidence showed that the plaintiff's land was worth from $ 25 per acre up to $ 500 for the whole six acres of which the lot consisted. The plaintiff testified that he had a conversation with the defendant after the wall and land fell down, and the defendant said he would fix it, and he did afterwards put up a board fence at the point, which the plaintiff claimed to be wholly insufficient. The evidence showed that the surface of the plaintiff's land, which fell as aforesaid, fell from three to eight feet. The whole depth of the excavation made by the defendant on the adjoining land was about twenty feet. There was evidence tending to show that, after said land and wall fell, and after this action was brought, the defendant continued to dig sand on the adjoining lot at a point farther north than the point where said land fell, and the defendant at that point dug so near to the plaintiff's land that the earth fell away to within a foot and a half of the plaintiff's line at one point, and to within two feet and a half and three feet and a half at several other points, leaving the surface a ragged edge, but no part of the plaintiff's land or fence fell except as before stated. The defendant testified that he did not dig within five feet of the plaintiff's line at the point where the plaintiff's fence and land fell, and that it fell owing to the nature of the soil and other natural causes. The land of the plaintiff had only been used as pasture and farming land, except that he had planted the grove of pines, as before stated. The plaintiff offered evidence that the land would be in danger of washing down and injuring said grove unless protected by a retaining wall, and also offered evidence of the cost of such a retaining wall. The soil of the plaintiff's land and that adjoining was sandy.

The defendant asked the judge to rule as follows: "There is no evidence of any wanton or wilful conduct or gross negligence on the part of the defendant, and nothing to warrant finding an aggravation of damages or any injury to the plaintiff's feelings."

The judge declined so to rule; found that the defendant's violation of the plaintiff's right of lateral support occurred through gross carelessness and want of ordinary attention to the rights of the plaintiff, and that the plaintiff's premises could not be restored to their condition before the injury with reasonable expense; ruled that the measure of damages might include the actual and natural injury to the feelings of the plaintiff as well as the injury to his property; that the measure of damages to...