Prete v. Cray , 49 R.I. 209 ( 1928 )

This is an action of trespass on the case brought against the defendant as city treasurer of the city of Providence to recover damages for injury to the plaintiffs' property alleged to have been caused by the action of the city in making an excavation in front of the plaintiffs' land on Branch avenue in Providence for the purpose of repairing a public sewer.

The case was tried before a justice of the Superior Court sitting with a jury. The trial resulted in a verdict for the plaintiffs in the sum of $2,020.83. The defendant duly filed a motion for new trial which was denied by the justice. The defendant has brought the case before us upon exception to the decision of the justice on the motion for new trial and upon certain other exceptions of the defendant taken to rulings of the justice made in the course of the trial.

The declaration is in two counts. The first count alleges a breach on the part of the city of its duty to so conduct its work and support the sides of said excavation as not to disturb or remove the lateral support of the plaintiffs' adjoining property. The second count alleges negligence on the part of the city and its agents in making the excavation and performing the work of repairing the sewer causing injury to the plaintiffs' property.

At the conclusion of the evidence the justice ruled that the plaintiffs had entirely failed to show negligence on the part of the city and withdrew the second count from the consideration of the jury. To this ruling the plaintiffs excepted but as the verdict was in their favor they have not brought the exception here and the question of whether the evidence tended to establish negligence in the city is not before us.

The defendant is now insisting upon his exceptions to the ruling of the justice denying the motion to direct a verdict for the defendant and to the refusal of the justice to instruct the jury in accordance with the defendant's three requests to charge. Each of these four exceptions is based upon the defendant's contention that in performing the work in question the city was exercising a governmental function and hence, in the absence of statutory provision imposing such liability, it is not liable for injury to the plaintiffs' property caused by the disturbance or the removal of the lateral support of the plaintiffs' land.

By a series of statutes Providence has been given authority to construct public sewers in the city streets and to make assessments for the cost thereof on the adjacent land. No duty to so construct sewers, however, has been imposed upon the city. It must be held that in availing itself of the privilege thus granted the city was not exercising a governmental function delegated to it by the State, but was voluntarily acting for its own advantage in its corporate capacity as a municipality. Upon this ground these exceptions should be overruled. Upon the application of a broader principle recognized by this court, however, the defendant would be liable under the allegations of the first count of the declaration which were amply supported by the plaintiffs' evidence. When the city of Providence in the exercise of the power given to it to make excavations in the city streets for the purpose of constructing or repairing sewers, goes beyond the lines of the street and invades private property, even if the invasion is only consequential, it stands in no different position from a private individual who invades the property of another individual. Under our decisions an owner's property is invaded when its beneficial use is impaired in the manner alleged in the first count of the declaration as well as when such owner is directly and formally excluded from its enjoyment. Inman v.Tripp, 11 R.I. 520; O'Donnell v. White, 23 R.I. 318.

In his general charge the justice instructed the jury as follows: "If sand or soil of the plaintiffs' land ran into the trench because of the digging operation the plaintiffs have been deprived of lateral support and are entitled to damages regardless of whether there is negligence or not." To this instruction the defendant has excepted and has relied upon that exception before us. The portion of the charge to which exception was taken appears by the transcript to have been part of a sentence, the remainder of which is "if they did so act that because . . . they took away the lateral support of the land of the plaintiff then the plaintiff is entitled to damages." This instruction is not objectionable as constituting an erroneous statement of the law. It is contended, however, that, as the plaintiffs' claim of damage included damages to buildings upon their land as well as to the land itself, the charge was insufficient and misleading in that it failed to instruct the jury fully as to the measure of damages applicable in the circumstances of this case. If not satisfied with the charge in this regard the defendant should have asked for specific instructions and failing so to request the justice the defendant can not raise the objection here. Warner Sugar Refining Co. v.Metropolitan Grocery Co., 46 R.I. 158; Langley v. WoolworthCo., 47 R.I. 165; Cassidy v. McDonald, 47 R.I. 147. In the consideration of this exception, however, questions have arisen which make it desirable to consider the nature of, and the limitations upon the right of so-called lateral support between lands of adjoining owners, and also as to what is the measure of damages in case of an interference with that right. At the outset we hold that in this State if in the exercise of a privilege to construct or repair a sewer in a public street a municipality makes excavations therein it is subject to the same duty not to interfere with the lateral support of land abutting on the street that the law imposes upon adjoining landowners. Between adjacent landowners the general principle in this regard is that each has an absolute property right to have his land laterally supported by the soil of his neighbor and if either in excavating on his own premises so disturbs the lateral support of his neighbor's land as to cause it, in its natural state, by the pressure of its own weight, to fall away or slide from its position the one so excavating is liable. This right of lateral support applies only to the land of the adjacent owner and does not include the right to have the weight of the building placed upon the land also supported. And when, upon an excavation made on his own land by an adjoining landowner, a building upon the adjacent land by its weight and pressure causes the building itself and the land upon which it stands to sink, then in the absence of negligence the one making the excavation is not liable for injury to the building resulting from its subsidence.

A condition sometimes arises where as the result of an excavation made on his own land by one adjoining landowner there is a disturbance of the lateral support to his neighbor's land due solely to the weight of the neighbor's land itself in its natural condition, and there has also been injury to a building on such neighbor's land resulting from the subsidence of the land, which subsidence cannot be ascribed in any degree to the pressure of the building upon the land.

In such circumstances some courts have applied the general rule as to damages and have held that, in the absence of negligence on his part, the landowner making the excavation is not liable for damages arising from injury to the building of his neighbor. A line of authority, however, has been developed which has regarded the condition we have named as calling for a qualification of the general rule, and it has been held by a number of courts that a landowner by building upon his land has not thereby lost his right to have his soil supported, and when that right is invaded by his neighbor and his land sinks he is entitled to compensation for the direct results of such breach of duty including any injury to buildings upon his land, when such injury is due to an interference with the lateral support of the soil, and cannot be ascribed to the weight and pressure of the buildings upon the land. Such is the rule enunciated in the English cases. Hunt v. Peake, 29 L.J. Eq. 785; Brown v.Robins, 4 H. N. 186; Stroyan v. Knowles, 6 H. N. 454. Upon this question there is a distinction in principle between liability and damage which appears to have been overlooked in cases holding contra to what we may call the English rule. This distinction may be stated as follows: there is no legal duty in the landowner A to furnish lateral support for the building of his neighbor B. and if without negligence on A's part B's soil falls away solely by reason of A's excavation on his own land and due in no respect to the weight of B's building, yet B's building is injured due to the subsidence of the soil under it, nevertheless, under the general rule A has committed no actionable wrong in respect to the injury to B's building, he has, however, committed an actionable wrong with respect to B's land, and under the general legal principle that a wrongdoer must make compensation in damages for all the direct results of his wrongdoing, B is entitled to recover compensation for the injury to his building solely because it is a part of his damage for the actionable wrong which A has committed. In the English case ofAttorney-General ex rel v. Conduit Colliery Co. (1895), 1 Q.B. 301 at 312, COLLINS, J. has commented upon this distinction, as follows: "That such is the true principle, — that is, that it is the subsidence and not the pecuniary loss which grounds the cause of action — is, I think, apparent from those decisions which establish that, on proof that the weight of a newly-erected house has not contributed to the subsidence, its value may be recovered by way of damage consequent on the original injury in an action against the adjoining owner who has withdrawn the support of the adjacent land; Brown v. Robins, 4 H. N. 186;Hamer v. Knowles, 6 H. N. 454. In these cases the fall of the house itself could give no cause of action, for there was no right to have it supported; therefore an injuria giving a right to action had to be shown before the consequential damage by reason of the falling of the house could be claimed; and such an injuria was shown on proof that the unincumbered soil would have subsided, although no pecuniary damage, even to the extent of a farthing, was suggested or proved had not the house been there." A number of American decisions are in harmony with the principle just set forth. Stearns v. Richmond, 88 Va. 992; Farnandis v. Great Northern R. Co., 41 Wn. 486; Busby v. Holthaus, 46 Mo. 161; Riley v. Continuous Rail Joint Co., 110 App. Div. 787,

confirmed in 193 N.Y. 643; Louisville Nashville R.R. Co. v.Bonhayo, 94 Ky. 67; Langhorne v. Turman, 141 Ky. 809. We approve the decisions in those cases as being sounder in principle and as placing upon one who commits a breach of duty full responsibility for his wrongful act. In Gobeille v.Meunier, 21 R.I. 103, this court has approved the general principle that if an adjoining landowner removes the lateral support of his neighbor's land, whereby the soil of that neighbor "is disturbed or falls away, he is legally liable for all damages so occasioned." The facts are not fully set out in the opinion. By reference to the papers in that case, it appears that the complaint is partly based upon the destruction of a fence alleged to belong to the complainant and the final decree requires the respondent to "restore said premises to the condition in which they were before he began to excavate the same." The issues of fact filed in the papers indicate that there was more before the court, and more comprehended in the language of the decision quoted above than merely the damage to the complainant's soil.

In a number of decisions, in which the facts before the court would not bring the case then at bar within the qualification of the general rule which we have approved, courts have impliedly recognized that qualification. Thus in Booth v. The Rome, c.R.R. Co., 140 N.Y. 267, the court said, "if one by excavating on his own land . . . . . causes a building on his neighbor's land to topple over, there is no remedy, provided the weight of the building caused the land on which it stood to give way." InBeard v. Murphy, 37 Vt. 99, the court said: "the owner of land is not entitled to claim the support of the adjoining soil for any artificial structure he may erect upon his land, which increases the lateral pressure."

The undisputed evidence brings this case upon its facts clearly within the condition we have been considering above. The plaintiffs' land abutted on Branch avenue. On the plaintiffs' lot were their dwelling house and a small building near the street line used as a photograph studio. The ditch excavated by the City was near the sidewalk on the plaintiffs' side of the avenue. The ditch was ten or twelve feet wide and extended to a depth of about forty feet. Both sides of the trench were supported by tongued and grooved 4-inch plank sheathing. As the work progressed, these planks were being constantly driven down by a heavy steam hammer. At a depth of thirty-eight or forty feet, a bed of quicksand was reached which extended from the ditch into the adjacent soil of the plaintiffs. This quicksand, according to the testimony of the defendant's contractor and engineer, was composed of very fine sand and flowed somewhat like water. The defendant's plank sheathing was not driven through this bed of quicksand, and as the quicksand was removed from the ditch by the defendant, other quicksand from the direction of the plaintiffs' land bubbled up from under the bottom of the plank sheathing. As the process proceeded of removing the quicksand from the ditch as fast as it flowed in from the defendant's premises, it resulted in impairing the lateral support of the plaintiffs' land, and also by drawing out the stratum of quicksand from under the plaintiffs' property, the plaintiffs' land was undermined and the subjacent support afforded by the bed of quicksand was destroyed. The effect of this loss of support was intensified by the constant blows of the heavy steam hammer. According to the testimony of the defendant's engineer the blows of the hammer caused vibration in the soil, which vibration traveled farther due to the character of the soil with the solid surface and the bed of quicksand underneath. It was admitted by the defendant's engineer that there was a settlement of the soil from the curb of the sidewalk back to the foundation of the plaintiffs' house and that the settlement was due to the escape of the quicksand from under the land and the vibration caused by the steam hammer. That the subsidence of the soil was not due to the weight of the plaintiffs' buildings is clearly apparent. The land sank at the curb, and the sidewalk and a part of the plaintiffs' lot slid forward from the front foundation of the plaintiffs' house, where the subsidence was about six inches, down to the curb of the sidewalk where the subsidence was from twelve to eighteen inches. The foundation of the plaintiffs' house on the rear and the sides was not disturbed. As a result of the sliding of the soil the foundation of the plaintiffs' house in front cracked and fell forward from the rest of the house unsupported leaving the front sill of the house unsupported. The sagging of the front sill, deprived of the support of the foundation, caused in great part the injury to the house, rendering the doors and windows unserviceable, and cracking the plastering and the ceilings of the front rooms of the house so that they had to be removed. A like condition is apparent with reference to the injury to the small photograph studio of the plaintiffs. From these facts it is plain that the weight of the plaintiffs' building was in no degree responsible for the subsidence of the plaintiffs' soil.

There is another ground upon which the plaintiffs, in a proper form of action, clearly would be entitled to recover, which we need not consider at length. By drawing off the subjacent support of the plaintiffs' land the city was undermining and invading the plaintiffs' premises. For this the city was liable, and would be required to compensate the plaintiffs, as well for the damage to their buildings as for the damage to their soil, whether the city was negligent or not in making the excavation.

All of the defendant's exceptions are overruled and the case is remitted to the Superior Court for the entry of judgment for the plaintiff upon the verdict.