Schultz v. Bower , 57 Minn. 493 ( 1894 )

Mitchell, J.

This was an action for damages for the wrongful act of the defendant in removing the lateral support of plaintiff’s soil from the adjacent land, causing it to fall. The jury was sent out to view the premises. This is allowed, not for the purpose of furnishing evidence upon which a verdict is to be found, but solely for the purpose of better enabling the jury to understand and apply the evidence given in court. Chute v. State, 19 Minn. 271, (Gil. 230;) Brakken v. Minneapolis & St. L. Ry. Co., 29 Minn. 43, (11 N. W. 124.)

When the court sent the jury out, he instructed them to carefully view the premises, so as to form an opinion for themselves, in connection with the evidence, of what the damages were; and in the charge the jury were told that they had been permitted to look the premises over, so that they might have another standard by which to gauge the evidence they had heard in court; that it might perhaps help them in determining whether the witnesses for the plaintiff or the witnesses for the defendant had more nearly told the truth in regard to the damages to the premises. And again, when asked by a juror whether “they had to go according to the evidence or not,” the court told them they had to go by the evidence, but added that testimony was one thing, and evidence was another; that “testimony” was the words they heard in court, and “evidence” what they considered it worth; that they were not bound to accept as true the statements of witnesses as to the damages, but had a right to weigh them with their common sense, judgment, and experience, aided by what they saw on the premises; that they were not sent out to go blindfolded, and see nothing, but to see what they could, as business men, in the light of their experience; and that they must determine the issue in the case by the evidence given in court, “and in the light of what they saw there.”

While the court did, in the course of the charge, instruct the jury in general terms that they should be giiided by the evidence given in court, — that that was the evidence by which they were bound if they believed it to be true, — yet the instructions which we have referred to were not withdrawn, or in any way expressly modified.

Our opinion is that, taking the charge as a whole, its fair import is that the jury might use what they saw or supposed they had learned on the view as evidence in the case, at least for some purposes. This, we think, is the way it would be naturally understood by the jury. This was error, for which a new trial must be granted.

There are one or two suggestions as to the law of such cases which it may be well to make in view of a second trial. The right of lateral support from the adjacent soil is an absolute right of property; and, as a consequence of this principle, it follows that for any injury to his soil, resulting from the removal of the natural support to which it is entitled, by means of excavation on an adjoining tract, the owner has a legal remedy against the party by whom the mischief has been done. This does not depend upon negligence, but upon the violation of the right of property. Nichols v. City of Duluth, 40 Minn. 389, (42 N. W. 84;) Foley v. Wyeth, 2 Allen, 131; Gilmore v. Driscoll, 122 Mass. 199; McGuire v. Grant, 25 N. J. Law, 362. This unqualified or absolute right of lateral support applies only to the land itself, and not to the buildings or other artificial structures. Where one, by digging in his own land, causes the adjoining land of another to fall, the actionable wrong is not the excavation, but the act of allowing the other’s land to fall. Sedg. Dam. § 925.

Hence the measure of damages is the diminution of the value of the land by reason of the falling of the soil; and it is immaterial whether this falling be called “caving” or “washing,” provided it is the natural and proximate result of removing the lateral support.

Order reversed.

Collins and Book, «TJ., absent, took no part.

(Opinion published 59 N. W. 631.)