Young v. Mall Inv. Co., 26287.

• Decision Date: 21 October 1927
• Docket Number: No. 26287.,26287.
• Citation: 215 N.W. 840,172 Minn. 428
• Parties: YOUNG v. MALL INV. CO. et al.
• Court: Minnesota Supreme Court

215 N.W. 840

172 Minn. 428

YOUNG v. MALL INV. CO. et al.

No. 26287.

Supreme Court of Minnesota.

October 21, 1927.

Appeal from District Court, Hennepin County; Mathias Baldwin, Judge.

Action by Margaret A. Young, against the Mall Investment Company and others. Order dismissing the case with prejudice as to plaintiff's claim to recover on a city ordinance. From that portion of the order denying a motion for a new trial as to plaintiff's cause of action based on such ordinance, plaintiff appeals. Affirmed.

Margaret A. Young and A. B. Jackson, both of Minneapolis, for appellant.

Deutsch, Loeffler & Amick and Arctander & Jacobson, all of Minneapolis, for respondents.

OLSEN, C.

Plaintiff brings this action to recover damages caused to her lot and building by reason of the excavation for the foundation of a building on the adjoining lot, owned by one of the defendants. She bases her right of recovery principally on an ordinance of the city of Minneapolis. Defendants attack the ordinance as void and unconstitutional.

The ordinance provides:

"All excavations for buildings shall be properly guarded and protected by the person, persons or corporations causing the same to be made, so as to prevent the same from becoming dangerous to life or limb, and shall be sheath-piled where it may be necessary to prevent the adjoining soil from caving in by reason of its own weight, or by reason of any load that may rest upon it.

"Any persons excavating for or commencing any foundation for any building shall fully protect any adjoining land or buildings, or the walls thereof, so that it shall remain as stable as before the excavation was commenced."

1. The rule of the common law, followed and held to be the law in this state, and declared to be the law by the Supreme Court of the United States and the Supreme Courts of many of the states, is that the landowner has the right to have his land preserved unbroken, and that an adjoining owner excavating on his own land is subject to this restriction and must not remove the earth so near to the land of his neighbor, or in such manner, as to cause his neighbor's soil to crumble or cave in under its own weight. But this right of lateral support applies only to the land in its natural condition and not to buildings or other artificial structures or loads placed on the land. One who excavates on his own land must guard the adjoining land to the extent that, if the soil thereon had remained, or is, in its natural condition, it will not crumble or cave in of its own weight.

The rule is stated and approved in Transportation Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336; Schultz v. Bower, 57 Minn. 493, 59 N. W. 631, 47 Am. St. Rep. 630; Gilmore v. Driscoll, 122 Mass. 199, 23 Am. Rep. 312; Bissell v. Ford, 176 Mich. 64, 141 N. W. 860; Thompson on Real Property, § 549; and in other cases.

It is a law governing the title and right of use of real property, and, under the law, vested rights in real property have been acquired in this state.

The ordinance in question attempts to radically change this law by casting upon the adjoining landowner the burden of protecting any building, structure, or load resting upon his neighbor's land. As stated in the case of Transportation Co. v. Chicago, supra:

"It would put it in the power of a lot owner, by erecting heavy buildings on his lot, to greatly abridge the right of his neighbor to use his lot. It would make the rights of the prior occupant greatly superior to those of the latter."

2. The restriction and burden here imposed are upon the use of the land rather than upon the title. The general rule is that the owner of land has vested rights not only in the bare title to the land but also in the use which he may make of the land.

The rule as to impairment of such rights is stated in 12 C. J. p. 957, as follows:

"A statute or ordinance that attempts to impose unreasonable restrictions on the use of private property is void as an attempt at impairment of vested rights. But there cannot be any vested right to the use of property in such a manner that it constitutes a nuisance, or an injury to the public health or morals, or an injury to the property rights of others."

None of the exceptions stated are pertinent here.

The ordinance here in question is absolute in terms, without qualifications or exceptions. It has no reference to location of the land, whether in the built-up sections of the city or in practically rural or unsettled sections; it has no reference to nearness or distance from streets or highways; no reference to the kind of structures or loads required to be protected against. In its present form it is clearly applicable to cases where no public interest is involved and where its only effect is to serve private interests and grant property rights to one private party and impose burdens upon...