Prete v. Cray

I am unable to concur in the conclusion reached by my associates that one who uses all reasonable care in excavating upon his own land is liable to an adjoining owner for damage to his buildings due to settling caused by such excavating, provided the land in the absence of the weight of the buildings thereon would have settled.

I agree that if a city makes excavations in a public street for the repair of a public sewer and by so doing disturbs the lateral support of an adjoining owner, the city is liable whenever the same acts would be ground for liability against an individual who, in excavating on his own land, disturbs the lateral support of an adjoining owner.

In making excavations one owes an absolute duty to furnish lateral support to the adjoining land so that it will not by its own weight settle or slide into the excavation. A showing that the excavations were made with reasonable care is no defense in an action for damages to the adjoining land. On the other hand, the law is well settled that one owes no absolute duty to provide lateral support sufficient to maintain the extra weight of the buildings on the adjoining land. There is, however, liability for damage caused to such buildings by excavations in a negligent manner. Both rules are reasonable. If both parcels of land are without improvements both owners stand on an equal footing. If either makes excavations he is liable regardless of negligence for damage caused to the adjoining land. — If the land is unimproved, the damage in the absence of negligence would ordinarily be comparatively slight. — But, if he exercises reasonable care to prevent the adjoining land and buildings from settling, should he not be permitted to improve his land without being liable for damage to the buildings? If he can not do so he is practically prevented in many instances from improving his land after the adjoining owner has erected valuable buildings without adequate foundations. In the case before us the soil of both parties rested upon quicksand which flowed almost as freely as water. The evidence shows that the defendant in making the excavation took every known precaution to prevent the quicksand from escaping from beneath the plaintiffs' soil into the trench. The plaintiffs neither alleged nor proved negligence in permitting the quicksand beneath the plaintiffs' soil from escaping into the excavation. However, the majority opinion holds that the defendant is liable for all damage to the plaintiffs' buildings because, as that opinion assumes, — and not unreasonably — the plaintiffs' land would have settled to some extent had no buildings rested upon the land. The reasoning adopted is that the defendant, being liable regardless of negligence for the slight damage done to the land by causing it to settle, must be liable also for the damage caused to the buildings. Bissell v. Ford, 176 Mich. 64 (decided in 1913) contains, at page 69, the following clear and comprehensive statement relative to the rights and obligations of adjacent landowners when excavations are made: "(1) While a landowner has the undoubted right to excavate close to the boundary line, he must take reasonable precautions to prevent his neighbor's soil from falling. (2) If he has taken such reasonable precautions, and yet the soil falls from its own pressure, he is still liable for injury to the land, but not for any injury to the superstructure. (3) If the pressure of the superstructure causes the land to fall, he is not liable either for injury to the land or superstructure. (4) If he fails to take such reasonable precautions to protect his neighbor's soil, and to preserve it in its natural state, he is liable for the injury to both the land and the superstructure, if the pressure of the superstructure did not cause the land to fall, and it fell in consequence of the failure to take such reasonable precautions."

A considerable amount of soil in many sections rests upon quicksand. In a closely built-up section it is practically impossible for an owner of a parcel of such land, in excavating for building purposes, to prevent the adjoining land from settling to some extent. — The damage is usually negligible in the absence of improvements. — But if valuable improvements had been made upon the adjoining land such owner must, according to the rule enunciated by the majority opinion, either refrain from improving his own land or be liable for damage, which he could not avoid, to such improvements.

I assume that my associates would deny that the adjoining owner, by improving his land, acquired an easement in the adjoining land in favor of such improvements, but such is the result of the opinion.

The rule supported by reason and the clear weight of authority is stated in 1 C.J., at 1216, as follows: "An owner of land adjoining land upon which there are buildings or other structures may lawfully excavate on his own land and to the line, although he endangers such structures and erections, and, in the absence of negligence or statutory provisions on the subject or of a contractual or prescriptive right of lateral support, he will not be liable for the injury sustained by the adjoining owner, as to the buildings or structures; or in other words he will be liable for no greater loss than would have resulted had there been no building on the land, provided the excavation was not made with an improper motive." The text is supported by an abundance of authority.

The majority opinion cites Gobeille v. Meunier,21 R.I. 103, to support the contention that the plaintiffs are entitled to recover for damage to their buildings regardless of whether the defendant was negligent. The opinion contains the following sentence: "The law is well settled that the owner of land is entitled to have it supported and protected in its natural condition by the land of his adjoining proprietor, and that if such adjoining owner removes such natural support, whereby the soil of the former is disturbed or falls away, he is legally liable for all damage so occasioned." Particular emphasis is placed upon the words "he is legally liable for all damage so occasioned." The court was speaking of land "in its natural condition", i.e., land without buildings, and not of land with buildings thereon or land generally. Hence, the language states no rule for damages for injuries to buildings. The court citedBeard v. Murphy, 37 Vt. 99; Graves v. Mattison, 67 Vt. 630; McMaugh v. Burke, 12 R.I. 499 and 2 Wn. R.P. 333. No one of the authorities cited by the court supports the plaintiffs' contention, but on the contrary each, exceptMcMaugh v. Burke — which has no bearing whatever upon the point — sustains the general rule above stated.

Said opinion refers to the original papers in the Gobeille case and calls attention to the fact that the final decree directed the respondent to replace the line fence which he had removed. In that case the question was not even raised — much less decided — whether the respondent would have been liable for damage to the fence had it slipped into the excavation while he was excavating with due care on his own land. The papers in the case clearly show not only that the fence did not slip or settle as the result of the respondent's excavations on his own land but also that the respondent deliberately removed the fence and excavated the complainant's land with the intention of erecting a retaining wall partly upon said land instead of entirely upon his own. It also appears from the reported opinion that respondent excavated on complainant's land. In removing the fence and making excavations on the complainant's land the respondent was a trespasser and was, of course, liable for all damage caused by the trespass, including damage for removing the fence.

The majority opinion contains the following statements: "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."

I agree that the city is liable if it "goes beyond the lines of the street and invades private property", but the city did not go "beyond the lines of the street." Did the city invade private property by failing to prevent the quicksand beneath the plaintiffs' soil from running into the excavation in the street? Neither of the cases cited sustains the proposition that: "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." The first count above referred to alleges that the defendant made an excavation so near the line of the plaintiffs' property and of such width and depth that the lateral support for their land and buildings was removed, with the result that soil from beneath their buildings escaped into the excavation, causing the buildings to settle. Neither of the cases cited is an authority for the proposition that the acts of the defendant in this case constituted an invasion of the plaintiffs' property. In the cases cited it appears that the city did invade the property of the plaintiffs therein. The grade of several streets was so changed as to cast upon the plaintiffs' land surface water which would have flowed or remained elsewhere if the grade had not been changed. The defendant in one of the cases actually dumped gravel upon the plaintiff's land. This was a direct trespass. By turning the water upon the land adjoining the street the city created a nuisance.

The rule as to sublateral support applicable to mines was suggested as a reason why the city, in some other form of action, would be liable regardless of negligence for damage to the plaintiffs' buildings caused by drawing off the quicksand beneath the plaintiffs' soil.

When one is granted the right to dig and remove minerals beneath the surface there is usually an express or implied agreement to support the land above the mine. Such agreement is one of the terms of the grant. If such agreement is violated the operator is, of course, liable because he has exceeded the terms of his grant; but the rule is not in any way applicable to the case before us where the question is merely as to common law rights of lateral — and not sublateral — support and in no way dependent upon a grant.

The majority opinion cites several English and six American cases to support the doctrine, contended for, that one, who by excavating on his own land causes the land and buildings of an adjoining owner to settle, is liable, even in the absence of negligence for all damage to the buildings, provided the weight of the buildings is not a contributory cause of the settling.

The rule contended for by the majority is undoubtedly the rule in England but the English rule is readily traceable to another English rule which has received but slight recognition in that country, viz., that one may obtain by prescription the right to have his buildings supported by the adjoining land.

It cannot be denied that the English rule of liability as to buildings has been followed by two or three American courts. However, several of the American decisions cited by the majority do not support the English rule. The damage considered in said cases was caused by the use of dynamite, the explosion of which not only wracked the buildings, by concussion, but hurled objects against them. These cases are based on the principle that one uses dangerous instrumentalities, such as dynamite, at his peril and is liable regardless of negligence. See Hickey v. McCabe Bihler, 30 R.I. 346.

In connection with a statement of the English rule, 1 C.J. at p. 1225, contains the following language: "In most jurisdictions the right of recovery in such cases is limited to damages for the injury to the land itself, and does not include damages for injury to buildings or other improvements thereon, unless they are caused by negligence, or unless a right to support for the buildings has been acquired."

In the case before us the question whether the weight of the buildings increased the lateral pressure and thereby caused the land to settle more than it would in the absence of the buildings was not submitted to the jury. The majority opinion apparently makes the assumption that the weight of the buildings contributed in no degree to the settling of the land.

I am of the opinion that the trial court erred in charging the jury, in substance, that the defendant was liable for damage to the buildings, regardless of negligence, "if the sand or soil from the plaintiffs' land ran into the trench in consequence of the digging in the trench and caused the plaintiffs' property to settle." There was no evidence as to the amount of damage caused to the land. Negligence was neither alleged nor proved. The case should be returned to the Superior Court for a new trial on an amended declaration charging negligence.