nite extent upwards and indefinitely below the surface. Whatever damages he may occasion to adjacent owners by the rightful exercise of this dominion are damnum absque injuria. But this right of absolute dominion is modified by the cautionary principle expressed in the maxim sicutere tuo ut alienum lædas. This maxim has been interpreted to mean that everyone must so enjoy his property, according to his legal rights, as not to injure the legal rights of another in his property.1

Every owner of land has a natural rightex jure naturæ-to have his land supported in its natural condition by adjoining land. This right is not an easement, and exists independent of contract. It is an absolute right of property incidental to the land and attached to the soil.2 The right to lateral support from adjoining soil, in the language of an English case, is not like the support of one building upon another, supposed to be gained by grant, but it is a right of property which passes with the soil, so that if the owner of two adjoining closes conveys away one of them, the alienee without any grant for that purpose is entitled to the support of the other close the very instant when the conveyance is executed. "This doctrine," said Lord Campbell, C. J., "stands on natural justice, and is essential to the enjoyment and protection of property in the soil." Few principles of law can be traced to an earlier or to a more constant recognition, through a long series of uniform and constant decisions, than this. And so the owner of land has no right to excavate on his own land in such a way as to remove the natural support of his neighbor's soil. And if one, desiring to improve his own land, bas occasion to make excavations which endanger the land of his neighbor, he must

1 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; Stevenson 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.

supply walls or other sufficient substance to take the place of the support that he removes. removes. If, disregarding this obligation, he goes ahead and makes such an excavation, the adjoining owner may recover for the injury.

The right being, as is pointed out above, an absolute right of property, the right to recover depends, not on negligence, but on the violation of the right." For example, the lower proprietor on the slope of a hill quarrying on his own land, without making sufficient provision for the protection of the soil of the upper proprietor in its natural condition, may be enjoined from prosecuting his work until the necessary provision is made. And where a railroad company excavated on its right of way, and the adjoining land caved in without artificial weight, the company was held liable for the damages. But if one grants to a railroad a tract of land from which it may obtain material for use on its line, and for no other purpose, he cannot recover from the grantee for damages to his adjoining lands from excavations made in a reasonable way in the prosecution of this purpose. And if one, in a grant of land, reserves the right to enter upon the land and dig sand for brickmaking purposes he cannot be enjoined."

8

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.

5 Louisville, etc. R. Co. v. Bonbays, 94 Ky. 67; Foley v. Wyeth, 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, 289.
Ryckman v. Gillis, 57 N. Y. 68, 15 Am. Rep. 464.

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

ings may add to the lateral pressure, and the adjoining owner does not stand in the same relation regarding this additional burden."1 The soil is no longer in its natural condition. And where land upon which there are buildings slides or subsides by reason of excavations on adjoining premises, and the buildings are in consequence damaged also, if their weight contributed to the fall, the one making the excavations is responsible for such consequences only as would have followed if the land had not been weighted.12 But if the weight of the buildings in no way contributes to the result then the damage done to the buildings may be taken into consideration in estimating the damages. The right of support for the land, it must be remembered, is not lost because buildings are put on it. The soil may be adhesive, and

of such a nature that it would remain in its natural position with the lateral support removed. In such a case the adjoining owner may excavate deeply and to the line. And if in such a case the land caves in by reason of the weight of the buildings on it, such an injury is damnum absque injuria.15 And the duty of care for a neighbor's interest is imposed, and one intending to excavate on his own property in such a way that injury may result to buildings on the adjoining land, is expected to give reasonable notice to the adjoining owner that the latter may have opportunity to shore up, or otherwise protect his property, and failure to give such notice is evidence of want of care. 16 If, however, one excavating his own lot does it so carefully that adjoining houses will not be injured he need not give notice to their

11 Laycock v. Parker, 103 Wis. 161; Hemsworth v. Cushing, 115 Mich. 92, 72 N. W. Rep. 1108; Thurston v. Hancock, 12 Mass. 220, 7 Am. Dec. 57; Myer v. Hobbs, 57 Ala. 175, 29 Am. Rep. 719; Winn v. Abeles, 35 Kan. 85, 57 Am. Rep. 115; Eady v. Gaines, 58 Mo. App. 586; Beard v. Murphy, 37 Vt. 99; Graves v. Mat tisin, 67 Vt. 630.

12 Partridge v. Scott, 3 M. & W. 220; Moody v. McClelland, 39 Ala. 45, 84 Am. Dec. 720; Cincinnati v. Penny, 21 Ohio St. 499, 8 Am. Rep. 73, 6 L. R. A. 449. 13 Stearns v. Richmond, 88 Va. 992; Park v. Seattle, 5 Wash. 1, 20 L. R. A. 68.

14 Stevenson v. Wallace, 27 Gratt. 77.

15 Gildersleeve v. Hammond. 109 Mich. 431, 33 L. R. A. 46.

16 Schultz v. Byers, 53 N. J. L. 442, 13 L. R. A. 563; Brown v. Werner, 40 Md. 15; Covingtos v. Geylor (Ky.), 19 S. W. Rep. 711; First Nat. Bk. v. Villegia (Cal.), 28 Pac. Rep. 97; Gildersleeve v. Hammond, 100 Mich. 431, 33 L. R. A. 46.

owners. If, on the other hand, he gives timely notice, the burden will be thrown upon the adjoining owners to protect their own property, and he will not be liable for damages to them if he makes the excavation with reasonable and ordinary care. Notice is a reasonable precaution, especially in a populous city, where buildings are necessarily required to be contiguous to each other, and improvements made by one property owner, however skilfully conducted, may be attended with accidental and disastrous results to his neighbors.17

If the owner, upon whose land are buildings, having notice, fails to take the necessary precautions to preclude injury from excavations done in a careful manner, he cannot recover. 18 He need not, however, guard against negligence on the part of the excavator.19 And if the party making the excavation, after notifying the adjoining owner of his intended operations, agrees to provide for the safety of the latter's property for a compensation, and fails to take the proper steps, he is liable for the damages that may result.20 The cases go even further than this. For it is held that if one digging a foundation advises his neighbor to underpin a portion of his building declaring also in the letter of notification that he himself will take certain steps, "so that the balance of your building will be protected," the neighbor has the right to rely on this promise, though voluntarily made, and to recover damages resulting from the negligent performance of the undertaking.21

Liability for Acts of Contractor or His Servants.-The landowner must not contract for anything the necessary or probable effect of which would be to injure others, and he cannot, by any contract, relieve himself of duties resting upon him as owner of real estate, not to do or suffer to be done upon it that which will constitute a nuisance, and therefore an invasion of the rights of others. There is a well established distinction between the cases in which when work is being done under a contract, an injury is caused

17 Shafer v. Wilson, 44 Md. 280; Bonaparte v. Wiseman, 89 Md. 12.

18 Lapp v. Guttenkust (Ky.), 44 S. W. Rep. 964. 19 Bohrer v. Dienhart Harness Co., 19 Ind. App. 489, 49 N. E. Rep. 296.

20 Lapp v. Guttenkust, supra.

21 Delaney v. Bowman, 82 Mo. App. 252.

by negligence in a matter collateral to the contract, and those in which the thing contracted to be done causes the mischief. If injury to adjoining property is due to negligence or wanton acts of the contractor in doing his work not necessarily incident to the contract or plan of the work, the contractor and not the owner would be responsible directly to the injured party.22 But if it might have been reasonably anticipated that injury would probably result as a consequence of the excavation, made in the way and under the conditions contracted for, then the owner is liable to the injured property owner.23

Statutory Provisions.-California Civil Code, § 832, makes it unlawful for the owner of land to remove the lateral support of adjoining land without taking reasonable precautions to sustain it. And where work is done under contract, and no precaution is taken, both owner and contractor are liable.24 This case-Green v. Berge,-questioned the correctness of Anton v. Nolan,25 in so far as that case held that the landowner could relieve himself of his duty by providing in the contract that the work should be done in a lawful manner. A New York Act imposes upon lot owners proposing to excavate to the depth of more than ten feet below the curb the duty to protect at their own expense a wall on or near the boundary line of adjacent premises from injury from such excavation, "if afforded the necessary license to enter on the adjoining land." This proviso was inserted, according to the construction of the courts, to meet the contingency of refusal by the owner of the adjoining property to allow the party making the excavation to enter upon his premises to shore up or otherwise support the wall, and does not require that such owner shall tender a license before he is under the protection of the statute.26 If the owner provides in the contract that contractors shall shore "as required by law" he is not liable for an unauthorized entry by the contractor.27 But the engagement of a contractor does not exempt the

22 Laycock v. Parker, 103 Wis. 1, 79 N. W. Rep. 327. 23 Bonaparte v. Wiseman, 89 Md. 12, 42 Atl. Rep. 918, 44 L. R. A. 482.

24 Green v. Berge, 105 Cal. 52, 38 Pac. Rep. 539.

25 63 Cal. 269.

26 Dorrity v. Rapp, 72 N. Y. 307.

27 Ketchem v. Newman, 141 N. Y. 205, 24 L. R. A. 102.

owner of the premises from the performance of the duty imposed by statute upon the party "causing the excavation to be made."'28 Can Right to Support be Acquired by Prescription.-While the right to have land supported in its natural condition is not an easement, an easement may be acquired for the support of buildings. It has been long established in England that peaceable, open and uninterrupted enjoyment for the period of the statute of limitations creates a right by prescription to such support. 29 It is now the settled American doctrine on the contrary, that an easement of this kind cannot be acquired by prescription. The case of Stevenson v. Wallace, did, indeed, adopt the English rule, the court saying, in the course of a valuable opinion, that an easement of support for a building would be presumed after 20 years' enjoyment. But the late case of Tunstall v. Christian,31 pointed out that this declaration was obiter, since in the case then up for decision the right of the plaintiff depended upon a grant, and expressly repudiated the doctrine. So the Missouri case of Handlan v. McManus 2 overrules the earlier case of Casselbury v. Ames,33 in which a ruling was made in accordance with the rule of the English cases. The reasoning upon which the American doctrine is based is well put in Gilmore v. Driscoll, where Gray, C. J., said: "It is difficult to * see how the owner of a house can acquire by prescription a right to have it supported by the adjoining land, inasmuch as he does nothing upon, and has no use of that land, which can be seen or known or interrupted or sued for by the owner thereof, and, therefore, no assent of the latter can be presumed to the acquisition of any right in his land by the former." Further, in Mitchell v. Rome, 25 the court, in the course of the opinion, said: "The fact that the user was adverse must exist in every such case. If the use of the

28 Dorrity v. Rapp, 72 N. Y. 307. 29 Brown v. Windsor, 1 Comp. & J. 20. In this case the building, whose erection in the first place had been consented to by the adjoining owner, had been up 27 years. See also Backhouse v. Bouwin, 9 H. L. Cas. 503; Dalton v. Angus, 6 App. Cas. 740. 30 27 Gratt. 77.

31 80 Va. 1 56 Am. Rep. 581.

32 42 Mo. App. 551.

33 13 Mo. App. 575.

84 122 Mass. 207, 23 Am. Rep. 312.

35 49 Ga. 25, 15 Am. Rep. 669.

34

easement be ab initio, legal or rightful, the title of the occupant is as good at the outset as it could be by the lapse of any length of time, but if it be the usurpation of the property of another under a claim of right, it then becomes adverse, for it is in hostility to the right, and in derogation of the rights of the original owner. In such cases a grant or a license or consent is presumed for the purpose of quieting the enjoyment or possession thus adversely held or used. The injured party who may, for such a long time, sleep on his rights cannot complain of the rule. He could have had redress any day during the 20 years. His remedy was in his own hands. This right of the injured party is a cardinal fact which must exist, else all statutes of limitation and all rules of prescription, or of presumption of license, would be but rules of spoliation or robbery." This reasoning is adopted in the late cases.36 But no right of the lateral support of soil in a street can be acquired by prescription, because it is impossible that such a right could have been obtained by grant.37

Duty of Municipal Corporations to Land Abutting on Streets. There is some conflict of authority regarding the liability of a municipal corporation for excavating in the street in such a way as to cause injury to the abutting owner by removing the support of his land. In his justly famous treatise on municipal corporations, Judge Dillon says, at § 991, regarding the liability in such cases: "Where the power is not exceeded there is no implied or common-law liability to the adjacent owner for grading the whole width of the street, and so close to its line as to cause his earth or fences and improvements to fall, and the corporation is not bound to furnish supports or build a wall to protect it. The abutting owner has, as against the city, no right to the lateral sup

36 e. g., Sullivan v. Jeiner, 98 Cal. 346, 20 L. R. A. 780. In this case the court used this language: "The possession or use, in order to create the presumption of a grant, must, under the Code as well as at common law, have been made under such circumstances that he whose property or right was affected could have prevented the possession or use if no grant had in fact been made. The plaintiff by the erection of his building wholly upon his own lot invaded no right of the defendant. He might place the foundation of his building upon the surface, or sink it any depth he desired, and in neither case could the defendant object."

Quincy v. Jones, 76 Ill. 231.

port of the soil of the street, and can acquire none from prescription or lapse of time." In commenting upon this section Justice Stiles, of the Supreme Court of Washington, in delivering the opinion of the court in Park v. Seattle,88 said: "After a careful examination of the citations made by the learned author, while we do find his text is fully sustained in numerous cases in England and in this country, where purely consequential injuries have been suffered, we also find that the cases which he cites to support the proposition, that the abutting owner has, as against the city, no right to lateral support, do not sustain him. In all these cases cited it was either the inconvenience of access caused by the change of grade, or the necessity of going to expense in sustaining the weight of buildings erected upon the abutting owner's land close up to the line of the street that was the ground of the action. No one of them was maintained for the removal of the lateral support of the abutter's land. It is more than likely that in these cases no damages were sought for the caving of the land itself, because the actual damage resulting from such a caving in most instances would be but little, if anything, more than nominal; but where the caving or sliding is as extensive and material as it is in this case, and knowledge of the nature of the soil and of the certainty that it would cave and slide is charged upon the city, as is in the complaint in this case, it would certainly be a great hardship if the city could go on with gross recklessness to remove what it must have seen was the only support for the whole hillside." Such injuries as these are not consequential, but direct. Further, this case held that such an injury inflicted upon the landowner is a "taking" of private property within the meaning of the constitutional inhibition. "What possible distinction there can be between the injury which is occasioned by casting water, earth, sand or other material upon one's land40 and having the entire surface of the land dragged or forced away it is hard to comprehend."

38 5 Wash. 1, 33 L. R. A. 68.

39 And see Keating v. Cincinnati, 38 Ohio St. 141, 43 Am. Rep. 42.

40 This has been held a "taking" in Pompelly v. Green Bay & M. Canal Co., 13 Wall. 166.

The Remedy.-The remedy is in general an action for damages. The action does not depend upon negligence but results from the violation of a property right which has been invaded or disturbed.41 One will not be enjoined from excavating on his own land unless serious injury to the adjoining land is imminent. But to remove support is to commit a nuisance and the operations may be restrained by injunction if serious injury is imminent, or if there is some peculiarity in the situation which makes an injunction the only adequate remedy.42 In a recent case the plaintiff was held entitled to an injunction to restrain the defendant from excavating in such a way as to cause the subsidence of the highway in front of his premises. 43

The Measure of Damages.-In the comparatively recent case of Stimmel v. Brown,44 Comegys, C. J., charged the jury that the measure of damages in a case of this nature would be what it would have cost the plaintiff to restore his property to as good a con

injury then the value of the buildings may be included in the damages recovered.47 New York. ARTHUR P. WILL.

47 Brown v. Robins, 4 H. & N. 186; Stearns v. Richmond, 88 Va., 14 S. E. Rep. 847; White v. Tebo, 60 N. Y. Supp. 231.

CONSTITUTIONAL LAW - MAKING SPECIFICATIONS IN BILL OF LADING CONCLUSIVE. MISSOURI, K & T. RY. CO. v. SIMONSON.

Supreme Court of Kansas, April 5, 1902.

The provision of chapter 100, Laws 1893, which makes the specification of weights in bills of lading issued by railroad companies for hay, grain, etc., shipped over their lines conclusive evidence of the correctness of such weights, is unconstitutional because denying to the companies due process of law, and because wrongfully depriving the courts of the judicial power to determine the weight and sufficiency of evidence.

DOSTER, C. J: This was an action against the Missouri, Kansas & Texas Railway Company to recover for a shortage of hay shipped over its line. Judgment went against it, to reverse which it has prosecuted error to this court.

The action was brought under chapter 100, Laws 1893. The statute requires railroad com

lateral support, as it had before the excavation was made. But the almost universal rule is that the diminution in the value of the land is the measure of the damages.45

Injury to plaintiff's feelings is not an element:46 To pursue any other course, to use the language of the court in one of the cases cited, would be to enter a field of uncertainty involving the cost of labor and material, the manner of construction, and the sufficiency and durability of the substituted support. Courts may often find difficulty in determining whether or not the subsidence or sliding of the soil was contributed to by the weight of buildings on the land. But when it is determined that the weight of the buildings was not a material factor in the

41 Foley v. Wyeth, 2 Allen, 131, 79 Am. Dec. 171. 42 Guest v. Reynelds, 68 Ill. 478; Morrison v. Latimer, 51 Ga. 519; Gobeilla v. Mennier, 21 R. I. 103; McMaugh v. Burke, 12 R. I. 499.

43 Finegan v. Eckerson, 52 N. J. S. 993. 44 (Del.) 30 Atl. Rep. 996.

45 Moellering v. Evans, 121 Ind. 195, 6 L. R. A. 449; Ulrick v. Dak. L. & T. Co., 2 S. Dak. 285, 3 S. Dak. 440; McGuire v. Grant, 23 N. J. L. 356; Williams v. Mo. Furnace Co., 13 Mo. App. 10; Schultz v. Bower, 57 Minn. 493, 66 N. W. Rep. 139; McGettigan v. Potts, 149 Pa. 155, 21 Atl. Rep. 198.

46 White v. Dresser, 135 Mass. 150, 46 Am. Rep. 454.

load lots of hay, grain, etc., and to issue duplicate bills of lading for the shipment. It makes the companies responsible for the full amount of such shipment, less one-fourth of 1 per cent. of its weight, and it concludes its sixth section with the following provision: "And in any action hereafter brought against any railroad company, for or on account of any failure or neglect to deliver any such grain, seed or hay to the consignee, or his heirs or assigns, either duplicate of such bill of lading shall be conclusive proof of the amount of such grain, seed or hay so received by such railway company." In defense to the action the railway company offered a deposition which tended to prove that the full amount of hay receipted for in the bills of lading had not been in fact received by it. This deposition was rejected, and its rejection constitutes the principal claim of error. A majority of the court are of the opinion that it was wrongly rejected, so far as the question now to be noticed is concerned, and we are all of the opinion that it was wrongly rejected so far as another question, presently to be noticed, is concerned. The argument against its admission is based on the statutory provision above quoted, which makes the bill of lading, in the cases stated, conclusive evidence of the amount received.

Is it in the power of the legislature to thus create a conclusive presumption in a matter of private contract? We are constrained to believe that it is not. Every suitor is entitled to his day in court, and to have his case determined on such evidence as legal policy will allow. It is