Lyons v. Walsh , 92 Conn. 18 ( 1917 )

When a former owner of the Lyons' land first disturbed its surface, he did so at the peril of answering in damages if his act should destroy the lateral support which was his neighbor's by natural right. The law as to that situation is universally settled. "The right of an owner of land to the support of the land adjoining is jure naturae, like the right in a flowing stream. Every owner of land is entitled, as against his neighbor, to have the earth stand and the water flow in its natural condition." Gilmore v. Driscoll,122 Mass. 199, 201; Trowbridge v. True, 52 Conn. 190;Ceffarelli v. Landino, 82 Conn. 126, 72 A. 564.

He apparently recognized this, and sought to forestall the probable result to the higher ground of the upper lot, by substituting an artificial support to safeguard it. In every effective sense he accomplished this purpose, but what he actually did was to take away a portion of his neighbor's land and replace it with a solid stone wall. Whether he invaded the adjoining lot by mistake or with its owner's consent is of no consequence so far as his successors in title are concerned. It was in any event so done as to leave no charge upon his own land. The wall became as much a part of the realty upon which it was built as the earth had been which it replaced, and with the same incidents and burdens of ownership as attach to every part of the land on which it stands. Ward v. Ives, 91 Conn. 12,21, 22, 98 A. 337.

The accepted law with relation to lateral support is, therefore, without direct significance here, and of only an incidental interest in its possible bearing upon the equities which the case discloses. Such right arising from it as the defendant's predecessors in title had in relation to the adjoining land, was by way of relief in damages once a wrongful invasion had been followed by an actual injury to the land. There is of course no natural right to equitable interference for the prevention of such an anticipated wrong, — though it may very well be that in cases presenting situations peculiar to themselves and disclosing the essential elements of irreparable injury a court of equity will interpose its aid. But the redress contemplated by the law is that which comes from an infringement of the right that works actual damage. The violator is then answerable for his tort whether he be the owner of the premises on which the initial mischief is committed, or the merest stranger to the title. Gilmore v. Driscoll,122 Mass. 199, 208. The action is a purely personal one. The wrong which gives rise to it binds the land to nothing, charges the title with nothing.

But if the owner, in anticipation of such an injury arising out of his acts, sets an artificial structure on his own land to prevent it and to replace what he has removed, he assumes an obligation which equity will recognize, and charges the land with its maintenance — so far, at least, as that maintenance is necessary to preserve his neighbor's rights.

The defendant seems to assume that in some way the situation presented here is controlled by this principle, and relies chiefly upon the earnestly urged unfairness of saddling the maintenance of the wall upon her, when it was confessedly erected by a former owner of the adjoining land to protect what later became hers from the consequences of his invasion. However persuasive her statement of the equities may appear in this limited view of the situation, the claim is not tenable. It ignores the entire absence of the link vitally necessary here to fasten any liability upon the plaintiff, — a burden upon the land itself which attaches to her as its owner. She is obviously only reachable through this, and it is not even seriously suggested that under the positive and well understood law of real property the land came to her charged with any duty to this wall. As to any supposable personal agreement by the builders of the wall to maintain it — if we were at liberty on the record before us to assume that such an agreement ever existed — there is no conceivable theory of law or equity which could transfer the obligations of such a personal undertaking to the plaintiff upon her mere acquirement of a title in no way affected by it.

But while these considerations are decisive of the case, it is apparent that something might be said for the plaintiff's equitable position here, — if there were occasion to treat the matter in that aspect. She succeeded to her present ownership as recently as 1913, and took the land as she found it. The wall was no part of her purchase, but was an open and visible part of the adjoining property. We may properly assume from the facts found that it was then in an advancing condition of decay. Whatever the original purpose of its erection had been, it became after her ownership began a source of annoyance, if not a menace, to her occupation. Even had she taken title with knowledge that the structure had been voluntarily put there by some former owner of the land she was buying, to avoid a personal liability for a tort of his own, this could not weaken her position from the standpoint of equity. She was in no sense equitably, any more than legally, answerable for any act of her predecessor in title, to which she was not a party, and which did not result in a charge upon the land.

We are unable to sustain the judgment of the trial court charging the plaintiff, as it does, with the duty of maintaining the wall, but the finding is comprehensive enough to warrant a final disposition of the case without a retrial.

The plaintiff is entitled to recover for the damage already done to her land by falling parts of the wall, but as to her claim for equitable relief by way of a mandatory injunction directing the rebuilding or restoration of the wall to its original condition, we are not satisfied that irreparable injury is clearly enough disclosed to warrant the exercise of so drastic a power. Equitable relief of this character is, and for the most obvious reasons should be, granted only in situations which so clearly call for it as to make its refusal work real and serious hardship and injustice. The facts of the case before us hardly bring it within this requirement.

There is error, the judgment is reversed, and the cause is remanded with directions to the Court of Common Pleas to enter a judgment for the plaintiff to recover damages assessed at twenty-five dollars.

In this opinion the other judges concurred.