19 Barb. 380 | N.Y. Sup. Ct. | 1853
It seems scarcely credible that the question how far the owner of ground adjacent to land owned by another, may remove the earth, and thus withdraw the natural support of his neighbor’s soil, without being liable for the injury, should have remained until this day unsettled. And yet, I believe it is so. Opinions have not unfrequently been expressed on the subject, and that too by eminent jurists ; but, so far as I know, these opinions have been obiter. I have not met with a single case, where this was the precise point in judgment.
The earliest writer who has mentioned the subject, and to whom all subsequent writers and judges, who have had occasion to speak of it, have referred, is Rolle. It had been held that an action would not lie against a man for digging in his own land, although he thereby undermines and destroys the house of his neighbor; for the reason that it was his own fault that he
On the other hand, in Radcliff’s Executors v. The Mayor &c. of Brooklyn, Bronson, J. dissents from the doctrine of Rolle. He insists that the law gives every man such a title to his own land, that he may use it for all the purposes to which such land is usually applied, without being answerable for the consequences. (4 Comstock, 202.) But this case, no more than either of the others to which I have referred, required any judgment upon the question. The learned judge himself says, in referring to the case then before the court: “ It seems to fall within the principle that a man may" enjoy his land in the way
Again; assuming that the views expressed in the case last noticed are to be regarded as controlling, I am not prepared • to say they are applicable to the case in hand. It will be observed that the opinion is expressed with characteristic caution. The learned judge had enumerated a variety of cases which he regarded as exceptions to the general rule, that a man may do what he will with his own property.. He had noticed other cases where the owner of land had been held to be justifiable, though he had used his land in such a manner as to result in injury to an adjacent owner. Then, when he comes to notice the distinction of Rolle, he questions its soundness, and says he thinks a man may lawfully use his own land “ for all the purposes to which such lands are usually applied.” And again, he says the case then under consideration seems to fall within the principle, that “ a man may enjoy his land in the way such property is usually enjoyed.” Can it be said that the excavation of a city lot to the depth of 50 or 60 feet, and a removal of ■ the earth for the purpose of making it into brick, is within the rule as thus qualified and restricted ? Is the land used for a purpose to which such land is “ usually applied ?” Does the
I think, that that judge himself would not have been willing to carry his doctrine so far as to justify this defendant in the use he proposes to make of his land. Gan it be, that the law will so far limit a man in the mode in which he shall enjoy his land, as fe not to allow him to do any thing which shall create a nuisance upon it, and yet will allow him to do an act which shall utterly destroy his neighbor’s land 7 I think not. Every man has a right to the undisturbed possession of his own land. But no man has a right to the unrestricted enjoyment of that possession. He may not so use it as to make that use destructive of his neighbor’s rights. The neighbor has the same right to the undisturbed possession of his own land that he himself claims. He must therefore use his land in subordination to such right. “ It is better,” says Gardiner, J. in Hay v. The Cohoes Company, above cited, “ that one man should surrender a particular use of his land, than that another should be deprived of the beneficial use of his property altogether.”
The ownership of land over which a stream of water is accustomed to flow, is as absolute as that of any other land. Ho man has a right to disturb the owner in its possession, and yet, that land is charged with the servitude of conveying the stream to the next owner. The owner of such land, however absolute his title, must use it subject to this charge. He may not lawfully remove such land when its effect would be to divert or diminish the flow upon his neighbor’s land. The rule of law, in such a case, is, that every man has the right to the advantage of a flow of water on his own land without diminution or alteration. (Arnold v. Foot, 12 Wend. 330. Van Hoesen v. Coventry, 10 Barb. 518.)
Upon the same principle, I think, the right to lateral support must be regarded as an incident to the land. It is a right of prop-erty “ necessarily and naturally attached to the soil.” It has been well said that “ the negation of this principle would be in
The civillaw, recognizing the doctrine that the owner of land has a right to support from adjoining soil, has fixed a rule for the purpose of protecting this right. It declares that “ if a man dig a sepulchre, or a ditch, he shall leave between it and his neighbor’s land, a space equal to its depth, and if he dig a well, he shall leave the space of a fathom and a French writer, referring to a similar provision in the code of France, says, “ by a parity of reasoning, the owner of land, who is desirous of quarrying on his own property for stone or sand, or similar materials, must not open the earth at the extreme point which separates his land from that of his neighbor, and continue to excavate perpendicularly, because his neighbor’s land thus deprived of support, would be in danger of falling in.” (Pardessus, Traite des Servitudes, cited in the Treatise above mentioned.)
But this doctrine has always been strictly confined to those cases in which the owner of land has not, by building or otherwise, increased the lateral pressure upon the adjoining soil. Every attempt to extend it beyond such cases has proved unsuccessful. When the party complaining of an injury has himself erected buildings upon the margin of his own land, he has been regarded as himself at fault, and therefore not entitled to recover, upon the familiar doctrine that he who complains of the use which another makes of his own property, must himself be free from fault. “ A man who himself builds a house adjoining his neighbor’s land,” says Parker, Ch. J. in Thurston v. Hancock, 12 Mass. Rep. 220,) “ ought to foresee the probable use by his neighbor of the adjoining land, and, by convention or by a different arrangement of his house, secure himself against future interruption and inconvenience.” Referring to the doctrine of Rolle, he says, “ we have not been able to discover that the doctrine has ever been overruled, nor
In the case now in hand, it is not pretended that the plaintiff has by any artificial means increased the lateral pressure of his land upon the adjoining soil. Ho greater support is ; now required than when the land first came into existence. Under such circumstances, I think the defendant had no right to withdraw that support, and thus allow the plaintiff’s land to fall. The defendant being engaged in this unlawful act, the injunction was properly allowed.
But it may be that, in its terms, the injunction is too broad. Whether it is so or not, I am unable to say. It restrains the defendant from digging «fee. within certain limits. It may be that these limits embrace more soil than is necessary for the support of the plaintiff’s land. I think the injunction should be so modified as only to restrain the defendant from excavating or removing any soil from any land adjoining the plaintiff’s premises, which shall cause the plaintiff’s land, by reason of the withdrawal of its lateral support, to fall away or subside.
Harris, Justice.]
The defendant will then be at liberty to excavate as he pleases, at the peril, nevertheless, of being convicted of a violation of the injunction, in case his excavation should result in injury to the plaintiff’s land. The costs of the motion should abide the event of the suit.
Ordered accordingly.