delivered the opinion of the Court:
The several errors assigned upon the rulings of the court below, present, in our opinion, but two material questions:
First. Are municipal corporations, while acting within the scope of their municipal authority in making excavations in streets for the purpose of opening or improving them, liable to property owners for injuries to buildings erected on lots abutting on the streets, resulting from the removal of the lateral support of the soil in the streets?
Second. Does the owner of a city Jot, abutting on a public street, acquire a prescriptive right to have the buildings and structures on such lot sustained by the lateral support of the soil in the street, by the mere failure of the city to remove the soil within such time as would, in a proper ease, afford evidence of a prescriptive right against an individual?
In Nevins v. Peoria,
“ The city is the owner of the streets, and the legislature has given it power to grade them, but it has no more power over them than an individual has over his land, and it can not, under the specious plea of public convenience, be permitted to exercise that dominion to the injury of another’s property, in a mode that would render a private individual responsible in damages, without being responsible itself.”
In support of the rulings of the court below, defendants in error insist- that it is a well settled rule of law, that the owner of land has a right to have the soil of his premises sustained by the lateral support of the natural soil of the adjoining land, and they cite Humphries v. Brogden, 12 Q. B. 743; Thurston v. Hancock,
The reference found in Bolle is this:
“If A be seized in fee of land next adjoining the land of B, and A erect a new house on the confines of his land next adjoining the land of B, and if B afterwards dig his land so near the foundation of A’s house, but no part of the land of A, that thereby the foundation of the house and the house itself fall into the pit, yet no action lies by A against B, because it was A’s own fault that he built his house so near to B’s land, for he, by his act, can not hinder B from making the best use of his own land that he can. But semble, that a man who has land next adjoining my land, can not dig his land so near mine, that thereby my land shall go into his pit; and, therefore, if the action had been brought for that, it would lie.”
The facts in Thurston v. Hancock, were, briefly, these: In 1802, the plaintiff purchased a lot upon Beacon Hill, in the city of Boston, and in 1804 built a valuable house on it within two feet of his line. In 1811 the defendant became the owner of the adjoining lot, and began to dig down the hill, and had dug within five or six feet of the plaintiff’s lot, when the earth gave way and exposed the foundations of plaintiff’s house, and he had to take it down. The court held that the plaintiff was without remedy for the injury to his house, saying: “A man, in digging upon his own land, is to have regard to the position of his neighbor’s land, and the probable consequences to his neighbor. If he digs too near his line, and if he disturbs the natural state of the soil, he shall answer in damages; but he is answerable only for the natural and necessary consequence of his act, and not for the value of a house put upon, or near, the line by his neighbor. For in so placing the house, the neighbor was in fault, and ought to have taken better care of his interests. * * * He built at his peril, for it was not possible for him, merely by building upon his own ground, to deprive the other party of such use of his as he should deem most advantageous. * * For the loss of or injury to the soil merely, his action may be maintained. The defendants should have anticipated the consequences of digging so near the line, and they are answer-. able for the direct consequential damage to the - plaintiff, although not for the adventitious damages arising from putting his house in a dangerous position.”
Humphries v. Brogden, was an action for injury to plaintiff’s land by the removal of the minerals under the surface, so that the land subsided, cracked, and was materially injured. Lord Campbell, after reviewing the English cases upon the subject, among other things, said: “Where there are separate freeholds, from the surface of the lands and the minerals belonging to different owners, we are of the opinion that the owner of the surface, while unincumbered, by buildings, and in its natural state, is entitled to have it supported by the subjacent mineral strata.”
Farrand v. Marshall simply decides, that a man may dig on his own land, but not so near that of his neighbor as to cause the land of the latter to fall into the pit, and is not in conflict with the rule that the owner of a building, in the absence of a grant or prescriptive right, is not entitled to have it sustained by the lateral support of his neighbor’s soil. After a somewhat extended and careful examination, we have been unable to find any serious conflict in the decisions, either English or American, on this particular question, and, therefore, deem it necessary to refer to but a few additional cases in its further elucidation.
In Panton v. Holland,
In Lasala v. Holbrook,
Chancellor Walworth said: “ I can readily believe, from the nature of the soil, and from the great depth of the defendant’s intended excavation, below the foundation of the church, that the complainants’ fears for the safety of their building are not entirely groundless. * * * It is not, however, alleged in the bill that the defendant is proceeding to improve his property in an unreasonable or unusual manner, or with any intention of injuring their Avail or building. * * * I have a natural right to the use of my land in the situation in which it was placed by nature, surrounded and protected by the soil of the adjacent lots; and the owners of those lots will not be permitted to destroy my land by removing this natural support. * * * But my neighbor has the right to dig the pit upon his own land, if necessary to its convenience and beneficial use, when it can be done without injury to my land in its natural state. I can not, therefore, deprive him of this right by erecting a building on my lot, the weight of which ■will7 cause my land to fall into the pit which he may dig in the proper and legitimate exercise of his right to improve his own lot.” And it was held that the complainants were not entitled to relief.
In O’Connor v. Pittsburgh,
The exception alluded to is Ohio, where it has been held that a party whose property has been injured by a change in an established grade of a street, is entitled to recover. But even the rule, as held in that State, is not consistent with the claim here made for defendants in error. In the City of Cincinnati v. Perry,
In Nevins v. Peoria, supra, this court, in discussing the question then before it, said : “A man can not do anything upon his OAvn soil, under the plea of ownership, which amounts to a nuisance, and works injury to his neighbor, but within that limit he may do whateArer his whim may dictate. He may excavate to any depth, or raise the surface to any height, and the neighboring owner has no right to complain, because his enjoyment of his own lot is not thereby prejudiced. Even if a building erected by me near the boundary of my lot is injured or endangered by an excavation made by my neighbor in his premises, I can not complain, because I have no right to the use of his soil for the support of my building.”
See also, to the same effect, Mamer v. Lussem,
For precisely the same reason the distinguished jurist who delivered the opinion in Radcliffe Exrs. v. The Mayor, etc. of Brooklyn, 4 Comstock, 197, claimed that Chancellor Walworth went too far in Lasala v. Holbrook, supra, in folloAving the dictum in Bolle’s Abridgment, and holding that even the soil in its natural state was entitled to the lateral support of the adjacent soil, when this was essential. He said: “ If the doctrine were carried out to its legitimate consequences, it would often deprive men of the whole beneficial use of their property. An unimproved lot of land in the city of Brooklyn would be worth little or nothing to the owner, unless he were allowed to dig in it for the purpose of building; and if he may not dig because it will remove the natural support of his neighbor’s soil, he has but a nominal right to his property, which can only be made good by negotiation and compact with his neighbor. A city could never be built under such a doctrine. I think the law has superseded the necessity for negotiation, by giving every man such a title to his own land" that he may use it for all the purposes to which such lands are usually applied, without being answerable for consequences, provided he exercise proper care and skill to prevent any unnecessary injury to the adjoining land owner. The saying of Rolle may have been a wise one in his day, but it is not well adapted to our times.” This we quote simply as giving the extreme view of the other side of the question, and it would seem to be quite as plausible as that of defendants in error. The more reasonable rule, however, and the one best sustained by authority, lies, in our opinion, between these extremes, and is that declared by the preceding cases to which we have referred. I have the right to use my land in such reasonable way as my judgment shall dictate, either by making excavations or superstructures thereon, subject, however, to the implied condition that I shall not thereby interfere with my neighbor in the enjoyment of the same right in respect to his adjacent land. Each is entitled to have his soil, in its natural state, sustained, when necessary, by the lateral support of the adjacent soil of the other; but neither has the right to burden such support by any additional weight, because this would, to that extent, appropriate the use of the property of the one, to the benefit of the other.
No danger is to be apprehended from malicious or capricious excavations, to be made as a mere means of injury or annoyance to an adjacent owner of the soil, for this is inconsistent with a reasonable and legitimate use of property, and such an excavation would not be within the protection of the rule. Moreover, it is required of the owner of the soil, having the right to excavate notwithstanding there are buildings upon the adjacent soil, that he shall exercise the right with reasonable skill and care, in view of the character of the buildings and the nature of the soil, so as to avoid doing unnecessary injury to the buildings. Foley v. Wyeth,
If injury is sustained to a building in consequence of the withdrawal of the lateral support of the neighboring soil, when it has been withdrawn with reasonable skill and care to avoid unnecessary injury, there can be no recovery: but if injury is done the building by the careless and negligent manner in which the soil is withdrawn, the owner is entitled to recover to the extent of the injury thus occasioned. s
What has been said applies only to cases where the owner of the soil has no other right to the lateral support of the adjacent soil than results from the naked ownership of the soil, and does not apply where there is a valid right to burden the adjacent soil with the claim of lateral support resulting from contract or prescription.
Where a common owner of the soil originally held both parcels, that on which the plaintiff's house was built, and that which the defendant subsequently excavated, it is held the defendant is charged with the duty of supporting, not merely the soil, but the house of plaintiff's parcel. Harris v. Ryding, 5 M. and W. 71; McGuire v. Grant, 1 356. Likewise, where the buildings are ancient, or those which have been erected on ancient foundations, and which, by prescription, are entitled to the special privilege of being exempted from the spirit of reform, the owner is said to be entitled to full protection against the consequence of any new excavation. Hide v. Thornborough, 5 Car. and K. 250; Story v. Olden,
Blackstone says, in Sharswood’s Ed. vol. 2, 263-: “A prescription can not be for a thing which can not be raised by grant, for the law allows prescriptions only in supply of the loss of a grant, and, therefore, every prescription presupposes a grant to have existed.”
The platting of the streets was a solemn dedication of the ground thus embraced to the corporation, for the uses and purposes of the public. Canal Trustees v. Haxen,
It is the unquestioned duty of the city, in controling and improving the streets, to prepare them for public use, as streets, at such time and in such manner as the public necessities may require. Holding them in trust for the public and having no authority to convey or divert them for other uses, it would seem inevitably to follow that they can have no power to grant to individuals rights or easements in the street which might in any waj' interfere with the duty of preparing them for the public use, to meet the public necessities; for it is obvious that if such rights may be granted, then the practical use of the streets may become so burdened "with private rights as to place it beyond the pecuniary ability of the city to discharge its duty to the public, with reference to them. It is not consistent to say that the city owes a duty to the public, and yet that it may voluntarily place it beyond its power to discharge that duty.
' In Gozler v. Corporation of Georgetown,
Chief Justice Marshall, in delivering the opinion of the court, said : “ But it can not be disguised that a promise is held forth to all who should build on the graduated streets, that the graduation should be unalterable. The court, however, feels great difficulty in saying that this ordinance can operate as a perpetual restraint on the corporation.
“ When a government enters into a contract, there is no doubt of its power to bind itself to any extent not prohibited bv its constitution. A corporation can make such contracts only as are allowed by the acts of incorporation. The power of this body to make a contract which should so operate as to bind its legislative capacities forever thereafter, and disable it from enacting a by-law which the legislature enables it to enact, may well be questioned. We rather think that the corporation can not abridge its own legislative power.”
In Smith v. Corporation of Washington,
“A Court of Quarter Sessions would probably not receive a defense founded on such astute philological criticism of the terms of the statute ; nor could the allegation be admitted that, having once fixed the grade which is now found improper and insufficient, the corporation has exhausted its power, and has no authority to change the level or grade, in order to keep the street in repair. As the duty is a continuing one, so is the power necessary to perform it.”
Says Dillon (Munic. Corp. sec. 541): “ The fundamental idea of a street is not only that it is public, but public for all purposes of free and unobstructed passage, which is its chief and primary but by no means sole use.”
Other authorities bearing upon the question might be referred to, but we deem it unnecessary. If the simple proposition were submitted, has a municipal corporation power to grant to the abutting property holders on an unimproved street the lateral support of the soil in the street, to the most ordinary apprehension it would but present, in another form, the question, may a municipal corporation, by contract with private parties, bind itself, through all time, not to improve a public street? It is not claimed that, by the charter of Quincy, such unusual and extraordinary powers are conferred; and, under the ordinary powers to lay out, open and repair streets, the idea is, in our opinion, preposterous.
We must, then, hold that defendants in error can claim no right to the lateral support of the soil in the street, by prescription, because it is impossible that they could have obtained such right by grant.
Moreover, it seems well settled that an adverse right to an easement can not grow out of a mere permissive enjoyment for any length of time; and that is all that defendants in error claim to have had. First Parish in Gloucester v. Peach, 2 Pickering, 60 (note) ; Medford v. Pratt, 4 ib. 222, 228; Parker v. Framingham,
Inasmuch as the rulings of the court below were not in harmony with the views we have expressed, the judgment must be reversed and the cause remanded.
Judgment reversed.