Witherow v. Tannehill ( 1899 )

Opinion by

Mr. Justice Fell,

The defendants, in order to secure a suitable foundation fov a large hotel building, caused the lot on which it was to be erected to be excavated to the depth of thirty feet. The plaintiff’s house was twenty feet from the edge of the excavation, and separated from it by a lot, which at the beginning of the work was owned by a third party. The walls of the house erected on this mtervening lot settled and cracked after the excavation began. The house and lot were then purchased by the owner of the hotel lot, the building was torn down and removed, and the work of excavation was carried on until the required depth was reached. The building which was removed had been erected some fifty years before, in connection with the plamtiff’s building, and was joined to it by a party wall. As a result of the excavation or of the removal of this building or of both, the plaintiff’s house was destroyed.

At the trial there was little or no dispute as to the law applicable to the facts of the case. The plaintiff' did not claim an absolute right of lateral support of his land with the buildings erected thereon. His contention was that the adjoining owner was bound to exercise ordinary care in making excavations on his land and in removing the building from the adjoining lot; and that in both of these matters he had been negligent. The defendant’s contention was that care had been exercised both in shoring up the land at the edge of the excavation and in the removal of the building ; and that the injury to the plaintiff’s house was caused by the subsidence of the ground under its foundation because of the natural drainage of the water from it. The issue raised by the pleadings was that of negligence ; and while the testimony was conflicting as to the degree of care exercised and as to the cause of the injury it was clearly sufficient to take the case to the jury. That produced by the plaintiff tended to show that the braces intended to hold the ground near the top of the excavation were of insufficient strength, and that no attempt was made by shoring or otherwise to hold in place the earth at the side, near the bottom of the excavation, and there was affirmative testimony that the earth on both lots moved toward the excavation, carrying with it the plaintiff’s house at one end, five feet from its original position. The fact that the excavation was not made on the lot immediately adjoining the plaintiff’s lot would not relieve the defendants from liability for negligence. The title of both the hotel lot and the intervening lot were in the same person when the injury was done, and the two lots had become one. The distance of the plaintiff’s house from the line of the excavation was a matter properly to be considered, in connection with the known nature of the ground, on the question of negligence; but no distance at which responsibility was to end could be fixed by the court.

The judgment is affirmed.