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nite extent upwards and indefinitely below supply walls or other sufficient substance the surface. Whatever damages he may to take the place of the support that he occasion to adjacent owners by the rightful removes. If, disregarding this obligation, exercise of this dominion are damnum he goes ahead and makes such an excavation, absque injuria. But this right of absolute the adjoining owner may recover for the in. dominion is modified by the cautionary prin- jury." ciple expressed in the maxim sicutere tuo ut The right being, as is pointed out above, alienum lædas. This maxim bas been in- an absolute right of property, the right terpreted to mean that everyone must so to recover depends, not on negligence, enjoy his property, according to bis legal but on the violation of the right. For rights, as not to injure the legal rights example, the lower proprietor on the slope of of another in his property."

a hill quarrying on his own land, without Every owner of land bas a patural right-making sufficient provision for the protection ex jure natura—to have his land supported of the soil of the upper proprietor ir its in its natural condition by adjoining land. natural condition, may be enjoined from This right is not an easement, and exists in- prosecuting his work until the necessary dependent of contract. It is an absolute provision is made. And where a railroad right of property incidental to the land and

company excavated on its right of way, and attached to the soil. The right to lateral the adjoining land caved in without artificial support from adjoining soil, in the language weight, the company was held liable for the of an English case, is not like the support of damages.? But if one grants to s railroad a one building upon another, supposed to be tract of land from wbich it may obtain magained by grant, but it is a right of property terial for use on its line, and for no other which passes with the soil, so that if the purpose, he cannot recover from the grantee owner of two adjoining closes conveys for damages to his adjoining lands from away one of them, the alienee without any excavations made in a reasonable way in the grant for that purpose is entitled to the sup- prosecution of this purpose. And if one, in port of the other close the very instant when a grant of land, reserves the right to enter the conveyance is executed. “This doc- upon the land and dig sand for brickmaking trine," said Lord Campbell, C. J., "stands purposes he cannot be enjoined.9 on natural justice, and is essential to the en- Malicious or Capricious Excavations, joyment and protection of property in the made as a mere means of injury or annoy. soil." Few principles of law can be traced ance to an adjoining owner of soil, are inconto an earlier or to a more constant recogni. sistent with the reasonable and legitimate tion, through a long series of uniform and

use of property, and are not within the proconstant decisions, than this. And so the tection of the general rule as to the right of owner of land has no right to excavate on one to deal with his own property as he his own land in such a way as to remove the natural support of his neighbor's soil. And As to Land Weighted with Buildings.if one, desiring to improve his own land, bas

The natural right to support, it is equally occasion to make excavations which en

well settled, exists in the case of land only. danger the land of his neighbor, he must Increasing the weight of the land by build

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i These are general principles, so elementary as to be almost truisms in the law, and do not require the citation of cases. Reference may be made, however, to Taylor v. Fickas, 64 Ind. 167; Foley v. Wyeth, 2 Allen, 131.

2 Joliet v. Schroeder, 92 Ill. App. 68; Schultz v. Bower, 59 Minn. 493; Shimmel v. Brown, 7 Houst. 219; Walters v. Hamilton, 75 Mo. App. 237; Steven. son v. Wallace, 27 Gratt. 77; Tunstall v. Christian, 80 Va. 1,56 Am. Rep. 581; Graves v. Mattison, 67 Vt. 630.

3 Humphries v. Brogden, 12 Ad. & El. (U. S.) 739. In some states, as in California and South Dakota, the common-law rule is in force by virtue of statute.

4 Joliet v. Schroeder, 92 Ill. App. 68; O'Neil v. Harkins, 71 Ky. 650; White v. Dresser, 135 Mass. 150, 46 Am. Rep. 454; Gobeille v. Mennier, 21 R. I, 103.

Louisville, etc. R. Co. v. Bonbays, 94 Ky. 67; Foley v. Wyetb, 2 Allen,131, 79 Am. Dec. 171; Schultz. v. Bower, 59 Minn. 493, 47 Am. St. Rep. 630; Ulrick v. Dak. L. & T. Co., 2 S. Dak. 285,

6 Wier's App. 81 Pa. St. 203.

7 Richardson v. Vt. Cent. R. Co., 25 Vt. 465, 60 Am. Dec. 283.

8 Ludlow v. Hudson R. Co., 4 Hun, 239. Ryckman v. Gillis, 57 N. Y. 68, 15 Am. Rep. 464.

10 Quincy v. Jones, 76 III. 231; McGuire v. Grant, 25 N. J. L. 356, 67 Am. Dec. 49.

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ings may add to the lateral pressure, and the owners. If, on the other hand, he gives adjoining owner does not stand in the same timely notice, the burden will be thrown relation regarding this additional burden. upon the adjoining owners to protect their The soil is no longer in its natural con own property, and he will not be liable for dition. And where land upon which there damages to them if he makes the excavation are buildings slides or subsides by reason of with reasonable and ordinary care. Notice excavations on adjoining premises, and the is a reasonable precaution, especially in buildings are in consequence damaged also, a populous city, where buildings are necesif their weight contributed to the fall, the sarily required to be contiguous to each one making the excavations is responsible other, and improvements made by one propfor such consequences only as would have erty owner, however skilfully conducted, followed if the land had not been weighted." may be attended with accidental and dis. But if the weight of the buildings in no way astrous resul:s to his neighbors.17 contributes to the result then the damage If the owner, upon whose land are build. done to the buildings may be taken into con ings, having notice, fails to take the necessideration in estimating the damages.18 The

sary precautions to preclude injury from exright of support for the land, it must be re cavations done in a careful manner, he canmembered, is not lost because buildings are not recover.18 He need not, however, guard put on it. The soil may be adhesive, and against negligence on the part of the exof such a nature that it would remain in its cavator. And if the party making the exnatural position with the lateral support re cavation, after notifying the adjoining owner moved. In such a case the adjoining owner of his intended operations, agrees to provide may excavate deeply and to the line. And

for the safety of the latter's property for a if in such a case the land caves in by reason compensation, and fails to take the proper of the weight of the buildings on it, such an steps, he is liable for the damages that may injury is damnum absque injuria." And the

result.20

The cases go even furtber than duty of care for a neighbor's interest is im this. For it is beld that if one digging posed, and one intending to excavate on his

a foundation advises his neighbor to underown property in such a way that injury may pin a portion of his building declaring also result to buildings on the adjoining land, is in the letter of notification that he himself expected to give reasonable notice to the ad

will take certain steps, “so that the balance joining owner that the latter may have

of your building will be protected,” the opportunity to shore op, or otherwise protect neigbbor has the right to rely on this promhis property, and failure to give such ise, though voluntarily made, and to recover potice is evidence of want of care. 16

If, damages resulting from the negligent perhowever, one excavating his own lot does it formance of the undertaking. 21 so carefully that adjoining houses will not be

Liability for Acts of Contractor or His injured he need not give notice to their

Servants.—The landowner must not contract 11 Laycock v. Parker, 103 Wis. 161; Hemsworth v.

for anything the necessary or probable effect Cusbiog, 115 Micb. 92, 72 N. W. Rep. 1108; Thurston

of which would be to injure others, and he v. Hancock, 12 Mass. 220, 7 Am. Dec. 57; Myer v. cannot, by any contract, relieve bimself of Hobbs, 57 Ala. 175, 29 Am. Rep. 719; Winn y. Abeles,

duties resting upon him as owner of real es35 Kan. 85, 57 Am. Rep. 115; Eady v. Gaines, 58 Mo. App. 586; Beard v. Murphy, 37 Vt. 99; Graves y. Mat.

tate, not to do or suffer to be done upon it tisin, 67 Vt. 630.

that which will constitute a nuisance, and 12 Partridge v. Scott, 3 M. & W. 220; Moody v. Mc

therefore an invasion of the rights of others. Clelland, 39 Ala. 45, 84 Am. Dec. 720; Cincinpati v. Pendy, 21 Ohio St. 499, 8 Am. Rep. 73, 6 L. R. A. 449.

There is a well established distinction be13 Stearns v. Richmond, 88 Va. 992; Park y. Seattle, tween the cases in which when work is being 5 Wasb. 1, 20 L. R. A. 68.

done under a contract, an injury is caused 14 Stevepson v. Wallace, 27 Gratt. 77. 15 Gildersleeve v. Hammond. 109 Mich. 431, 33 L. R.

17 Shafer v. Wilson, 44 Md. 280; Bonaparte v. WiseA. 46.

map, 89 Md. 12. 16 Schultz v. Byers, 53 N. J. L. 442, 13 L. R. A. 563;

18 Lapp v. Guttenkust (Ky.), 44 S. W. Rep. 964. Brown v. Werner, 40 Md. 15; Covingtos v. Geylor

19 Bohrer y. Dienbart Harness Co., 19 Ind. App. (Ky.), 19 S. W. Rep. 711; First Nat. Bk. v. Villegia

489, 49 N. E. Rep. 296. (Cal.), 23 Pac. Rep. 97; Gildersleeve v. Hammond,

20 Lapp v. Guttenkust, supra. 109 Mich. 431, 33 L. R. A. 46.

21 Delaney y. Bowman, 82 M0. App. 252.

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by negligence in a matter collateral to the owner of the premises from the performance contract, and those in which the thing con. of the duty imposed by statute upon the tracted to be done causes the miscbief. If party “causing the excavation to be made.”'98 injury to adjoining property is due to negli Can Right to Support be Acquired by Pre. gence or wanton acts of the contractor in do- scription.-While the right to have land suping bis work not necessarily incident to the ported in its natural condition is not an easecontract or plan of the work, the contractor ment, an easement may be acquired for the and not the owner would be responsible di- support of buildings. It bas been long esrectly to the injured party.22 But if it might tablished in England that peaceable, open bave been reasonably anticipated that injury and uninterrupted enjoyment for the period would probably result as a consequence of of the statute of limitations creates a right the excavation, made in the way aud under by prescription to such support. It is now the conditions contracted for, then the owner the settled American doctrine on the conis liable to the injured property owner.23 trary, that an easement of this kind cannot Statutory Provisions.-California Civil

be acquired by prescription. The case of Code, $ 832, makes it unlawful for the owner Stevenson v. Wallace, so did, indeed, adopt of land to remove the lateral support of ad the English rule, the court saying, in the joining land without taking reasonable pre course of a valuable opinion, that an easecautions to sustain it. And wbere work is ment of support for a building would be predone under contract, and no precaution is sumed after 20 years' enjoyment. But the taken, both owner and contractor are liable.? late case of Tunstall v. Christian, 31 pointed This case-Green v. Berge,-questioned the out that this declaration was obiter, since in correctness of Anton v. Nolan,20 in so far as the case then up for decision the right of the that case held that the landowner could re plaintiff depended upon a grant, and ex. lieve himsell of his duty by providing in the pressly repudiated the doctrine. So the contract that the work should be done in a Missouri case of Handlan v. McManusia overlawful manner. A New York Act imposes rules the earlier case of Casselbury v. Ames, 45 upon lot owners proposing to excavate to the in which a ruling was made in accordance depth of more than ten feet below the curb with the rule of the English cases. The reathe duty to protect at their own expense a soning upon which the American doctrine is wall on or near the boundary line of adja based is well put in Gilmore v. Driscoll, 34 cent premises from injury from such excava where Gray, C. J., said: "It is difficult to tion, “if afforded the necessary license to see how the owner of a house can acquire by enter on the adjoining land.” This proviso

This proviso prescription a right to have it supported by the was inserted, according to the construction adjoining land, inasmuch as he does nothing of the courts, to meet the contingency of a upon, and has no use of that land, which can refusal by the owner of the adjoining prop be seen or known or interrupted or sued for erty to allow the party making the excava by the owner thereof, and, therefore, no astion to enter upon his premises to shore up sent of the latter can be presumed to the acor otherwise support the wall, and does not quisition of any right in his land by the require that such owner shall tender a license former.” Further, in Mitchell v. Rome, 85. before he is under the protection of the slat the court, in the course of the opinion, said:

If the owner provides in the contract "The fact that the user was adverse must that contractors shall shore "as required by exist in every such case. If the use of the law” he is not liable for an unauthorized entry by the contractor.27 But the engage

28 Jorrity v. Rapp, 72 N. Y. 307.

29 Brown v. Windsor, 1 Comp. & J. 20. In this case ment of a contractor does not exempt the

the building, whose erection in the first place bad

been consented to by the adjoining owner, had been 22 Laycock v. Parker, 103 Wis. 1, 79 N. W. Rep. 327. up 27 years. See also Backbouse v. Bouwin, 9 H.

23 Bonaparte v. Wiseman, 89 Md. 12, 42 Atl. Rep. L. Oas. 503; Dalton v. Angus, 6 App. Cas. 740. 918, 44 L. R. A. 482.

30 27 Gratt. 77. 21 Green v. Berge, 105 Cal. 52, 38 Pac. Rep. 539.

31 80 Va. 1 56 Am. Rep. 591. 25 63 Cal. 269.

32 42 No. App. 551. 26 Dorrity v. Rapp, 72 N. Y. 307.

33 13 Mo. App. 575. 27 Ketchem v. Newman, 141 N. Y. 205, 24 L. R. A. 84 122 Mass. 207, 23 Am. Rep. 312. 102.

85 49 Ga. 25, 15 Am. Rep. 669.

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y." ings erected upon the abutting owner's land

easement be ab initio, legal or rightful, the port of the soil of the street, and can title of the occupant is as good at the outset acquire none from prescription or lapse as it could be by the lapse of any length of of time."

In commenting upon this section time, but if it be the usurpation of the prop

Justice Stiles, of the Supreme Court of erty of another under a claim of right, it Washington, in delivering the opinion of the then becomes adverse, for it is in hostility court in Park v. Seattle, 88 said: "After a to the right, and in derogation of the rights careful examination of the citations made by of the original owner. In such cases agrant

the learned author, wbile we do find his text or a license or consent is presumed for the

is fully sustained in numerous cases in Engpurpose of quieting the enjoyment or posses

land and in this country, where purely con. sion thus adversely held or used. The in-sequential injuries have been suffered, we jured party who may, for such a long time,

also find that the cases which he cites to sleep on bis rights cannot complain of the support the proposition, that the abutting rule. He could have had redress any day owner has, as against the city, no right during the 20 years. His remedy was in his to lateral support, do not sustain him. In own hands. This right of the injured party all these cases cited it was either the inconis & cardinal fact which must exist, else all venience of access caused by the change statutes of limitation and all rules of pre of grade, or the necessity of going to scription, or of presumption of license, expense in sustaining the weight of buildwould be but rules of spoliation or robbery." This reasoning is adopted in the late cases.86 close up to the line of the street that was the

But no right of the lateral support of soil ground of the action. No one of them was in a street can be acquired by prescription, maintained for the removal of the lateral because it is impossible that such a right support of the abutter's land. It is more could have been obtained by grant. 37

than likely that in these cases no damages Duty of Municipal Corporations to Land were sought for the caving of the land itself, Abutting on Streets. — There is some conflict because the actual damage resulting from of authority regarding the liability of a such a caving in most instances would be but municipal corporation for excavating in the little, if anything, more than nominal; but street in such a way as to cause injury to where the caving or sliding is as extensive the abutting owner by removing the support

and material as it is in this case, and knowlof his land. In his justly famous treatise on edge of the nature of the soil and of the cermunicipal corporations, Judge Dillon says, tainty that it would cave and slide is charged at $ 991, regarding the liability in such upon the city, as is in the complaint in this cases : "Where the power is not exceeded case, it would certainly be a great hardship there is no implied or common-law liability if the city could go on with gross recklessto the adjacent owner for grading the whole

ness to remove what it must have seen was width of the street, and so close to its line the only support for the whole hillside.” as to cause bis earth or fences and improve. Such injuries as these are not consequential, ments to fall, and the corporation is not but direct. 39 Further, tbis case held that bound to furnish supports or build a wall to such an injury inflicted upon the landowner protect it.

The abutting owner has, as is a "taking'' of private property within the against the city, no right to the lateral sup- meaning of the constitutional inhibition.

“Wbat possible distinction there can be be36 e. g., Sullivan v. Jeiner, 98 Cal. 316, 20 L. R. A. 780. In this case the court used this language: “The

tween the injury which is occasioned by possession or use, in order to create the presumption casting water, earth, sand or other material of a grapt, must, under the Code as well as at com upon one's land40 and baving the entire surmon law, have been made under such circumstances

face of the land dragged or forced away it is that he whose property or right was affected could have prevented tbe possession or use if no grant bad hard to comprehend.” in fact been made. The plaintiff by the erection of his building wholly upon his own lot invaded no

38 5 Wasb. 1, 33 L. R. A. 68. right of the defendant. He might place the foundation of bis building upon the surface, or sink it any

39 And see Keating v. Cincinnati, 38 Ohio St. 141, 43 depth he desired, and in neither case could the de

Am. Rep. 42. fendant object.”

40 This has been held a "takingin Pompelly v. Quincy v. Jones, 76 III. 231.

Green Bay & M. Canal Co., 13 Wall. 166.

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The Remedy.--The remedy is in general injury then the value of the buildings may an action for damages. The action does not be included in the damages recovered.47 depend upon negligence but results from the New York.

ARTHCR P. WILL. violation of a property right which bas been invaded or disturbed.41 One will not be en

47 Brown v. Robins, 4 H. & N. 186; Stearns v.

Richmond, 88 Va., 14 S. E. Rep. 817; Wbite v. Tebo, joined from excavating on his own land un

60 N. Y. Supp. 2:1. less serious injury to the adjoining land is imminent. But to remove support is to CONSTITUTIONAL LAW – MAKING SPECIFIcommit a nuisance and the operations may

CATIONS IN BILL OF LADING CONCLUSIVE. be restrained by injunction if serious injury MISSOURI, K & T. RY. CO. v.SIMONSON. is imminent, or if there is some peculiarity

Supreme Court of Kansas, April 5, 1902. in the situation which makes an injunction

The provision of chapter 100, Laws 1893, which the only adequate remedy.42 In a recent makes the specification of weights in bills of lading case the plaintiff was held entitled to an issued by railroad companies for bay, grain, etc., injunction to restrain the defendant from

shipped over their lines conclusive evidence of the

correctness of such weights, is unconstitutional beexcavating in such a way as to cause the

cause denying to the companies due process of law, subsidence of the highway in front of his and because wrongfuily depriving the courts of the premises.43

judicial power to determine the weight and suff

ciency of evidence. The Measure of Damages.-In the com

DOSTER, C.J: This was an action against the paratively recent case of Stimmel v. Brown,

Missouri, Kansas & Texas Railway Company to Comegys, 'C. J., charged the jury that the

recover for a shortage of bay shipped over its measure of damages in a case of this nature line. Judgment went against it, to reverse would be what it would have cost the plaint wbich it has prosecuted error to tbis court. iff to restore his property to as good a con

The action was brought under cbapter 100, dition, and as good a state of protection by

Laws 1893. The statute requires railroad com

panies to provide track scales for weighing car-lateral support, as it had before the excava

load lots of hay, grain, etc., and to issue duplition was made. But the almost universal

cate bills of lading for the shipment. It makes rule is that the diminution in the value of the companies responsible for the full amount of the land is the measure of the damages. 45

such shipment, less one-fourth of 1 per cent. of Injury to plaintiff's feelings is not an ele

its weight, and it concludes its sixth section with ment:46 To pursue any other course, to use

the following provision : “And in any action

hereafter brought against any railroad company, the language of the court in one of the cases

for or on account of any failure or neglect to decited, would be to enter a field of uncer. liver any such grain, seed or hay to the consignee, tainty involving the cost of labor and ma or bis heirs or assigns, either duplicate of such terial, the manner of construction, and the

bill of lading shall be conclusive proof of the sufficiency and durability of the substituted

amount of such grain, seed or hay so received by

such railway company.” In defense to the action support. Courts may often find difficulty

the railway company offered a deposition which in determining whether or not the subsidence tended to prove that the full amount of bay reor sliding of the soil was contributed to by ceipted for in the bills of lading bad not been in the weight of buildings on the land. But

fact received by it. This deposition was rejected, when it is determined that the weight of the

and its rejection constitutes the principal claim

of error. A majority of the court are of the buildings was not a material factor in the

opinion that it was wrongly rejected, so far as

the question now to be noticed is concerned, and 41 Foley v. Wyeth, 2 Allen, 131, 79 Am. Dec. 171.

we are all of the opinion that it was wrongly re13 Guest v. Reynelds, 68 III. 478; Morrison v. Lati

jected so far as another question, presently to be mer, 51 Ga. 619; Gobeilla v. Mennier, 21 R. I. 103;

noticed, is concerned. The argument against its McMaugh v. Burke, 12 R. I. 499.

admission is based on the statutory provision above 43 Finegan v. Eckerson, 52 N. J. S. 993.

quoted, wbich makes the bill of lading, in the 46 (Del.) 30 AU). Rep. 996.

cases stated, conclusive evidence of the amount 45 Moellering v. Evans, 121 Ind. 195, 6 L. R. A. 449; received. Ulrick v. Dak. L. & T. Co., 2 S. Dak. 285, 3 S. Dak. 410; McGuire v. Grant, 25 N. J. L. 356 ; Williams v.

Is it in the power of the legislature to thus Mo. Furnace Co., 13 Mo. App. 10; Schultz v. Bower,

create a conclusive presumption in a matter 67 Mion. 493, 66 N. W. Rep. 139; McGettigan v. Potts,

of private contract? We are constrained to be149 Pa. 155, 21 Atl. Rep. 198.

lieve that it is not. Every suitor is entitled to 46 White v. Dresser, 135 Mass. 150, 46 Am. Rep.

his day in court, and to have his case determined 454.

on such evidence as legal policy will allow. It is

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