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act of acquisition on his own part when a want of due care or skill, or

But this natural right to sup- positive negligence has contributed to port exists in respect of land only, and produce it.” Foley v. Wyeth, 2 Allen not in respect of buildings, but the (Mass.) 131. former right remains, though houses We have held in a previous case that are built. But a right to support for of natural right the surface land is enbuildings may be acquired; and when titled to support from the strata below, so acquired it is an easemeni.” Steven- and that, when one owning the whole son v. Wallace, 27 Gratt. (Va.) 77. fee, grants the minerals, reserving the

The right to lateral support must surface to himself, his grantee is entibe regarded as an incident to the land. tled only to so much of the minerals as It is a right of property, 'necessarily he can get without injury to the superand naturally attached to the soil.'*, incumbent soil and that the plea of a It has been well said that 'the negation custom would be unreasonable, and of this principle would be incompatible hence wanting in an element essential with the very security for property, as to its validity. A grant of minerals it is obvious that if the neighboring and all privileges necessary for the owners might excavate their soil on convenient working, etc., of coal, and every side up to the boundary line, to the rights 'incident or usually appuran indefinite depth, land thus deprived tenant to working and using coal of support on all sides could not stand mines' does not affect the grantor's by its own coherence alone. (Gale & right to a surface support. The loss of Wheatley Easements, p. 216.) springs to the owner of the surface by

This doctrine of support has reason of the ordinary working of the always been strictly confined to those mines does not render the owner of cases in which the owner of the land the minerals liable for damages. Colehas not, by building or otherwise, in- man et al. v. Chadwick, So Pa. St. Si. creased the lateral pressure upon the See also Myer v. Hobbs, 57 Ala. 175; adjoining soil. Every attempt to ex- Gilmore v. Driscoll, 122 Mass, 199; tend it beyond such cases has proved Thurston v. Hancock, 12 Mass. 220. unsuccessful. When the party com- (This case is much cited, but in a numplaining of an injury has himself ber of cases has been criticised aderected buildings upon the margin of versely.) Calender v. Marsh, i Pick. his own land, he has been regarded as (Mass.) 418; White v. Dresser, 135 himself at fault, and therefore not en- Mass.

150; Lasala 7'. Holbrook, 4 titled to recover, upon the familiar doc- Paige (N. Y.) 169; Marvin v. The trine that he who complains of the use Brewster Iron Mining Co., 55 N. Y. which another makes of his own prop- 538; Bellows 7'. Sackett, 15 Barb. (N. erty, must himself be free from fault." Y.) 96; Has v. The Conoes Co., 2 N. Farrand v. Marshall, 19 Barb. (N. Y.) Y. 159; Marvin v. Brewster Iron Min380.

ing Co., 55 N. Y. 538; s. C. 14 Am. "It is a necessary consequence from Rep. 322; Buskirkt. Strickland, 47 this principle that, for any injury to his Mich. 389; Busby v. IIolthaus, 40 Mo. Land resulting from the removal of the 161; Charless vi Rankin, 22 Mo. 566. natural support to which it is entitled. B. & P. R. Co. 7'. Reaney, 42 Md. 117; by means of excavation on an adjoin: Shafer v. Wilson, 44 Md. 268; Dyer ing tract, the owner has a legal remedy City of St. Paul, 27 Minn. 457; in an action at law against the party by O'Neil 7. Harkins, 8 Bush (Kv.) 620. whom the work has been done, and the McGuire 2. Grant, 1 Dutch. (N. J.) mischief thereby occasioned. This 356; Executors of Lord i'. Carbon Iron does not depend upon negligence or Mfg. Co., 38 N. J. Eq. 452; Scranton v. unskillfulness, but upon the violation Phillips, 94 Pa. St. 15; Carlin '. Chapof a right of property which has been pell, 101 Pa. St. 318; Jones v. Wagner, invaded and disturbed. This unquali- 66 Pa. St. 429; Hoy V. Sterrett, : fied rule has been limited to injuries Watts (Pa.) 337; Wheatley i'. Baugh, caused to the land itself, and does not 25 Pa. St. 524; Haverstick 2. Sipe. 33 afford relief for damages by the same Pa. St. 368; Wiers Appeal, 74 Pa. St. means to artificial structures. For an 230; Homer V. Watson, 79 Pa. St. injury to buildings, which is unavoida- 242; s. C., 21 Am. Rep. 55; Richardson bly incident to the depression or slide v. Vt. Cent. R. Co., 25 Vt. 465; Beard of the soil on which they stand, caused 7. Murphy, 37 Vt. 99; Roath r'. Drisby the excavation of a pit on adjoining coll, 20 Conn. 533; s. c., 52 Am. Dec. land, an action can only he maintained 352; Yandes v. Wright, 66 Ind. 319; II. How the Right May be Acquired.—As has already been said, this right exists ex jure naturæ as an incident to the soil alone, but when any structure or extra burden is placed upon the soil, the right of support must be acquired as any other easement. The authorities agree that the right may be acquired by grant, express or implied, but there is a difference on the point as to whether it may be acquired by prescription.1 s, C., 32 Am. Rep. 109; Mamer v. Lus- any gable end. The court held that sem, 65 Ill. 484; Nevins v. Peoria, 41 Ill. the plaintiff's house was injured by the 502; Wilms v. Jess, 94 Ill. 464; s. C., 34 removal of the gable end and that he Am. Rep. 242; Tunstall v. Christian, was entitled to compensation. 8o Va. 1; S.C., 56 Am. Rep. 581; North- The plaintiff and defendant, being the ern Trans. Co. of Ohio 7. Chicago, 99 owners of adjoining mining claims, of U.S. (9 Otto) 635; Angus v. Dalton, the kind known as “deep diggings," and L. R., 6 App. Cas. 740; Partridge v. which are worked by the hydraulic Scott, 3 M. & N. 220; Wyatt v. Harri- process, the latter in mining its own son, 3 B. & Ad. 871; Harris v. Ryding, ground washed away the gravel, so 5 Mies. & W. 59; Smart v. Morton, 5 that the bank caved, and a portion of El. & B. 30; s. C.. 30 Eng. L. & Eq. 385. the plaintiff's claim fell upon the

Change of Grade of Street.-An inter- ground of the defendant and was ference with right of support by cutting washed away and the gold extracted by down a street, or otherwise removing it; but the value of the gold extracted the support of adjacent soil is a taking was much less than the necessary cost for which compensation must be made. of extracting it. Held, the doctrine of See Fellows v. City of New Haven, 44 lateral support does not apply to cases Conn. 240;

Mitchell V. Mayor of like the present, where the very purRome, 49 Ga. 19. See, however, Mayor pose of locating the ground, both on of Rome v. Omburg, 28 Ga. 46; City the part of the plaintiff and defendant, of Quincy v. Jones, 76 Ill. 231; Aurora was to tear it down and wash it away, v. Fox, 79 Ind. 1; City of Delphi v. and therefore the defendant was not Evens, 36 Ind. 90; s. c., 10 Am. Rep. liable. 12; Callendar v. March, 18 Mass. (I Hendricks v. Spring Valley Mining Pick.) 418; Armstrong r'. St. Paul, 30 and Irrigation Co., 58 Cal. 190; BackMinn. 299; Dyer v. St. Paul, 27 Minn. house v. Bonomi 9 H. L. Cas. 503; 457; Morey v. Albany, 98 N. Y. 376; Hunt v. Peake, 1 Johns. (Eng.) 705; Radcliff v. Mayor of Brooklyn, 4 N. Y. S. C., 29 L. J., Ch. 785; Humphries v. 195; Mears v. Commissioners of Wil- Brogden, 12 Q.B. D. 743; Wyatt v. Harmington, i Ired. (N. Car.) L. 73; Keat- rison, 3 Barn. & Adol.871; S.C., 23 Eng. ing v. Austin, 38 Ohio St. 431; Thurs. Com. L. 380.

7'. Hancock, 12 Mass. 220; Gil- 1. An easement for support may be more v. Driscoll, 122 Mass. 199, 201; acquired in different modes, but all are Farrand v. Marshall, 19 Barb. (N. Y.) reducible to one by grant; which may

Thus where the grade of a street be express, implied or presumed. is cut down and the soil of the abutting When the owner of land acquires owner slides into the street, he is enti- the easement of support, it would seem tled to recover. See Aurora v. Fox, that his natural right of support in re78 Ind. 1; Armstrong v. St. Paul, 30 spect of the soil is enlarged so as to emMinn. 299; Dyer v. St. Paul, 17 brace the buildings which he Minn. 457; Morey v. Albany, 98 N. Y. erect on his land, and invests him with 396; Keating v. Cincinnati, 38 Ohio St. the same right of support in respect of 141.

his buildings that he has ex jure In Snyder v. City of Lancaster (Pa.), naturæ in respect of the soil. If the 9 Cent. Rep. 381, the plaintiff sued to plaintiff has enjoyed the support of the recover for damage caused to his land or buildings of the defendant for property by the opening of a street. twenty years, to keep up his house, and The city in opening the street removed both parties knew of that support, the a house of which the gable end was plaintiff had a right to it as an easeused as the gable end of plaintiff's ment, and the defendant could not withpremises. The result was that the re- draw the support without being liable moval left the plaintiff's house without in damages for any injury that accrues

ton

120.

may 7.

21

to the plaintiff thereby. In such case sive with the known uses of the grant; the grant is presumed. The grant is and the circumstance that the grant implied in the absence of express stip- does not notice the intention of buildulatio in every case where the owner ing is immaterial in a case where both of adjoining houses or of houses and grantor and grantee are aware of it, afland severs the property by sale; for fecting at most the grantee's remedy in every such case, rights to support are only, not his right also, relative to such granted by implication by the vendors an easement." Robinson v. Grave, 27 and purchasers, respectively, for the L. T. 648, aff'g 29 L. T. 7. See also preservation of the buildings belonging Rigby Bennett,

Ch. D. to each other. Rights of support in 559; s. c., 40 L. T.47; Murchie v. Black, such cases are mutually granted and 19 C. B., N. S. 190; Caledonian R. Co. reserved between original owner and v. Sprot, 2 Macq. H. L. Cas. 479; first grantee; and the second grantee Palmer 7. Fleshees, i Sid. 167; Cox v. succeeds to owner's reserved rights. Matthews, 1 Vent 237; Brown v. Wind

Stevenson v. Wallace, 27 Gratt. (Va.) sor, i Crompt. & J. 20. 77. [This case has been severely criti- “A right to lateral support from adcised in Tunstall z'. Christian, So Va. I, joining land may be acquired by but is referred to here as a good state- twenty years' uninterrupted enjoyment ment of the law as held in many States for a building proved to have been which hold that this right may be ac- newly built or altered so as to increase quired by prescription.]

the lateral pressure, at the beginning of "It is to be assumed as settled, that that time, and it is so acquired if the where two or more houses, so con- enjoyment is peaceable and without destructed as to require mutual support, ception in concealment and so open are conveved to different owners, or that it must be known that some supwhere separate portions of one dwelling port is being enjoyed by the building." become vested in different owners, a Dalton v. Angus, 6 App. Cas. (Eng.) right of support as incident to the prop- 740; revog 3 Q. B. D. 85; Hunt v. erty passes by the conveyance to each Peake, i Johns. (Eng.) 705; s. C., 29 L. grantee, unless excluded by the terms J., Ch. 785; Partridge v. Scott, 3 Mee. of the grant. Easements of this de- & W. 220; Brown v. Windsor, I scription are acquired by grant; but, in Crompt. & J. 20; Hide v. Thornconstruing the conveyance, it is to be borough, 2 Car. & Kir. 250. presumed that the parties intended to In the case of Mitchell v. The Mayor preserve the obviously existing rela- etc. of Rome, 49 Ga. 19; S.C., 15 Am. Rep. tions and dependencies of the estate, 669, Trippe, J., said: “This rule, then, and all those incidents necessary to the of presumption of right, by grant or present enjoyment of the thing granted otherwise, may well apply to claims are held to pass. There is an obliga- which relate to commons, markets, tion upon each adjacent proprietor in water courses, ways, and the like, where favor of the other beyond what is an adverse user or enjoyment is a direct implied in the maxim which requires and overt injury to the person who every one to use his own so as not to may be the true owner, and against injure his neighbor. The exclusive do. whom the presumption is to be made. minion of each is so far qualified that In all these instances there is an invaneither can take away the support of sion on the property of another, or the other, however prudent and careful his beneficial interest in it is lessened. on his part the act may be. Pierce v. The wrong done may be redressed by Dyer, 109

Mass. 374. See also immediate action. During all the time, Story Odin, Mass. 157; which, by its lapse, may raise the preCasselbery v. Ames, 13 Mo. App. 575; sumption against him, he has it in his Charless v. Rankin, 22 Mo. 566; Mc- power to arrest that presumption by Guire v. Grant, 1 Dutch. (N. J.) 356; asserting his right and having it setEno z'. Del Vecchio, 4 Duer (N. Y.) 53; tled by a judgment. But it is difficult, Lasala v. Holbrook, 4 Paige (N.Y.) 169; if not impossible, to see how this docKieffer v. Imhof, 26 Pa. St. 438; Citytrine can be made to apply to those of Quincy v. Jones, 76 III. 231; U. S. v. instances of easements, so called, where Appleton, i Sumn. (U. S.) 492.

there is no possession of anything be"A grant made expressly for the pur- longing to another, no encroachment pose of the grantees building a house cre- upon another's right, no adverse user, ates a legal easement over the adjoining in fact, nothing done whatever against land retained by the grantor coexten- which another could complain, or for

7.

12

III. Rights and Liability of Adjoining Owners.—The right to support of the land in its natural state is absolute, and the liability of anyone who deprives the land of natural support unqualified; but in the case of structures which have not acquired the right of support in some one of the ways already set forth, a person who is about to endanger the support of adjoining property is under a duty to give the owner thereof due notice of his intention, and in the prosecution of his work he must use due care

to

a

which an action could be brought, and possession, or enjoyment of any right, no remedy existing whereby to prevent corporeal or incorporeal, belonging to such a presumption from arising. If it another, to which objection could in does so apply, a person would be com- any form be made, and it would therepelled to submit to the loss or deprecia- fore be a misuse, as well as an abuse, tion of important rights, or of the terms licence, grant, and acquidamaging interest accruing to another escence, to say he has acquired a right by mere loss of time, and be utterly by means thereof from the owner of powerless to prevent it save, perhaps, by the adjacent lot. This was so expressly some churlish or expensive appropria- decided in Hoy v.Sterrett, 2 Watts (Pa.) tion of his property to uses or purposes 327; Richart v. Scott, 2 Watts (Pa.) hurtful to himself and offensive to his 460.' The grounds upon which these deneighbor. Thus, for instance, if this cisions are put are precisely the same as doctrine exists in the case of lights or those in the cases applicable to lights windows overlooking the premises of an and air. As has been well said by a adjoining proprietor, simply because writer in the American Law Review, they have been used for twenty years vol. 1, p. 10: “How can the assent of (and after that time no building can be the adjoining proprietor be implied erected to interfere with such lights), when he never had the opportunity of then as such proprietor of the adjacent expressing his dissent? He could land has no right of action, no claim for bring no action against his neighbor damages for a wrong done, he will be for doing what he had a perfect right forced to build at the dictation of another, to do. It is a mockery to say he might or set up an obstructing wall, merely to have dug up his land during the period show he is lord of his own soil, or forever of prescription. The doctrine has been lose the right of the free use of his very much shaken in England since the property.

A servitude on his land recent case of Solomon v. Vinters Co., might become fixed, simply because he 4 H. & N. 585;' and adds further, the might not be prepared to build within a analogous doctrine of lights has been so given time.

The decisions generally discarded in this country, thus far referred to were cases involv- that we are disposed to believe that the ing the question of a prescriptive right prescriptive right of support to houses from long enjoyment, to light and air. will be also rejected when fairly preBut every principle or reason advanced sented for decision.' in support of them applies with full “As was said of the doctrine of a force to a claim of right by the owner prescriptive right to lights, already quoof a building erected on the line of his ted, so may it be said of this, as lot to the lateral support of the adjacent claimed by the plaintiffin error, ‘it cansoil, on the ground that his building has not be applied to the growing cities and been standing there for a given number towns of this country without working

Neither in the case of the the most mischievous consequences.' window opening out on another man's In Mayor and Council of Rome v. land, or of a building erected on the Omberg, JUDGE LUMPKIN said: "Peodividing line, has the owner committed ple purchase property and build in an act against which his neighbor can towns with full knowledge of public protest. He has not touched his prop- necessity to have streets by excavating erty or invaded any right, or given or elevating, as the case may demand; any cause of action. He had a right to and they must take the chances and use or build on his lot to the farthest consequences.' I conclude on this limit of his boundary. He has only point with the words of our young done this, and never has had any use, or brother who ably argued it for defendant

of years.

and skill. The general rules as to negligence, and what consti- tutes due care and skill, apply here. in error: 'One building on his own though suitable, are so unskilfully built land is clearly in the exercise of his le- in the wall that it cannot be preserved gal rights. There is no encroachment and supported by ordinary care and upon the land or rights of another; diligence, with the use of the usual and no occupation of that which belongs to ordinary means resorted to in practice another; no adverse possession under a for that purpose; when the second claim of' title. No one can have a right builder comes to dig out the foundation of action against him, for he has not for his house, but notwithstanding the trespassed upon or violated the rights of use of such care, diligence and means any other person. How, then, can he, by the latter to prevent it, the wall by this lawful use of his own land for gives way and with it a part or the twenty years, acquire a beneficial inter- whole of the first building falls, occasionest in the land of his neighbor?''

ing small or great loss to the owner there. The following cases either deny that of, it must be regarded as damnum sine this right can be acquired by prescrip- injuria, for which the second builder is tion or modify the doctrine. Gilmore in nowise responsible.” Richart 0. 7'. Driscoll, 122 Mass 199; Tunstall 7. Scott, 7 Watts (Pa.) 460. Christian So Va. I, s. c., 56 Am. Rep. It is erroneous to rule that the pro581; Napier V. Bulwinkle, 5 Rich. prietor having the excavating done is (S. Car.) 311.

bound to use such care and caution as a 1. “From the recent English decisions prudent man experienced in such work it appears that the party who is about would have exercised, if he had himself to endanger the building of his neigh- been the owner of the injured building. bor by a reasonable improvement on Such a ruling tends to mislead, as one his own land is bound to give the owner who is proprietor of both the conof the adjacent lot proper notice of the tiguous lots might very prudently subintended improvement, and to use or ject himself to expense and incondinary skill in conducting the same; venience for the protection of his buildand that it is the duty of the latter to ing that could not justly be imposed shore or prop up his own building, so upon one making excavations upon an as to render it secure in the mean time. adjoining lot belonging to him. The (See Payton ?'. Mayor of London, 9 excavator cannot set up as a defence Barn. & Cress. 725; 4 Man. & Ry. 6251 that he used such care as his builder Walters v. Pfeil, i Moody & Malk. 362; and superintendent, a skilful and careMassey v. Goyder, 4 Car. & Payne ful person, deemed necessary. The de161).” Lasala 7. Holbrook, 4 Paige cisive question is, whether there was (N. Y.) 169.

actual negligence in making the exca“The owner of the lot, who improves vation. Charless z'. Rankin, 22 Mo. 566. by putting up a dwelling or other house The party having the right, under a thereon, extending to the boundary of reservation in the deed, to remove the the same, which is a mere line of coal underlying property convered to length without breadth separating his another owner, is held to the exercise of lot from the adjacent one belonging to ordinary care in removing the coal, and another, and remaining unimproved, if such care requires that pillars or ribs must be considered as bound to use of coal be left in order to protect the suitable materials and the requisite skill property of the surface owner, their rein doing so, in order that the walls of moval would constitute negligence, enhis building next to the adjacent lot titling the surface owner to damages for may, if the owner thereof should think loss caused thereby. Livingston proper, in preparing the foundation for Moingona Coal Co., 49 Iowa 364); Carthe house which he may afterwards re- lin 7'. Chappell, ioi Pa. St. 348; Seransolve on erecting, to excavate the ad- ton z'. Phillips, 94 Pa. St. 15; Horner t'. jacent earth or to go below the founda- Watson, 79 Pa. St. 242; Coleman i'. tion of the walls of the first building, Chadwick, So Pa. St. Sı; Wilms 5. admit of this being done by ordinary Jess, 94 III. 464; Yandes v'. Wright, care and caution, with the use or the Ind. 319. common and ordinary means of accom- “The provision of the act of 1555 plishing it. If the first builder, in the regulating the excavation of lands by construction of his wall use material owners in the cities of New York or untit for the purpose; or the materials, Brooklyn which requires such owner,

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