22 Mo. 566 | Mo. | 1856
delivered the opinion of the court.
The right to support from the adjoining soil may be claimed either for the land in its natural state, or for it subjected to an artificial pressure by means of building or otherwise.’ The
When, however, the lateral pressure has been increased by the erection of buildings, it seems to be well settled at common law by authorities, that no man has a right to an increased support unless he has acquired such a servitude by grant or prescription. It is so laid down in the early case of Wilder v. Minsterly (2 Rolle’s Abr. 564). ££ If A. be seized in fee of copy-hold land, closely adjoining the land of B., and A. erect a new house upon his copy-hold land, and any part of his house is erected on the confines of his land, adjoining the land of B.; if B. afterwards dig his land so near to the foundation of the house of A., but not in the land of A., that by it the foundation of the messuage and the messuage itself fall into the pit, still no action lies by A. against B., inasmuch as it was the fault of A. himself, that he built his house so near the land-of B. ; for he can not, by his own act, prevent B. from making the best usage of his land that he can.” And Lord Tenderden, in delivering the judgment of the court in the case before cited, said: “The question reduces itself to this : if a person builds to the utmost extremity of his own land, and the owner of the adjoining land digs the ground there,
Although not altogether in good taste, I repeat, as applicable to the present case, what I had occasion to say in a former case. It is a logical consequence from legal principles, that to the extent to which'a person has a right to act, others are bound to suffer ; and that any damage that may accrue to them, while a person thus exercises his own rights, affords no valid gfound of complaint. The loss occasioned in such cases is “ damnum absque injuriaEvery person, however, who is performing an act is bound to take some care in what he is doing. He can not exercise his own indisputable rights without observing proper precaution not to cause others more damage than can be deemed fairly incident to such exercise. In Wallars v. Pfeil, (Mood. & Malk. 364,) the plaintiff had neglected to take any precaution by shoring up their own houses within, or in any other way against the effect of pulling down the defendant’s adjoining house ; and it appeared that this might have been so
These principles require us, we think, to reverse the judgment, and send the case back for a second trial. We do not think there is any error in the refusal of the defendant’s first and fourth instructions. A party may subject himself to re
The judgment is reversed, and the cause remanded.