84 Mass. 131 | Mass. | 1861
The declaration alleges that the plaintiff was seised and possessed of the parcel of land described therein, together with a right of way in common with other persons, in two passage ways adjoining and appurtenant thereto; and that the defendant dug a large and deep pit in her own land, whereby a considerable portion of his land caved in and was removed, and the said passage ways were made useless and impassable. And, from the statement of facts reported, it appears that the plaintiff had contracted in writing
This ruling was correct. If the owner of land makes an excavation in it so near to the adjoining land of another proprietor that the soil of the latter breaks away and falls into the pit he is responsible for all the damage thereby occasioned. Few principles of the law can be traced to an earlier or to a more constant recognition, through a long series of uniform and consistent decisions, than this. It is distinctly stated in 2 Rol. Ab 564. In Gale & Whatley on Easements, 215, it is said that “the right to support from the adjoining soil maybe claimed either in respect of the land in its natural state, or land subjected to artificial pressure by means of buildings or otherwise.” In the former case the right is not an easement, but is a right of property as being necessarily and naturally attached to the soil. Ib. 216. And in the recent case of Humphries v. Brogden, 12 Ad. & El. N. S. 739, where the law upon the subject appears to have been fully and carefully investigated and considered, it is affirmed that the right to lateral support from the adjoining soil is not like the support of one building upon another, supposed to be gained by grant, but is a right of property which passes with the soil, so that if the owner of two adjoining closes conveys away one of them, the alienee, without any grant for that purpose, is entitled to the support of the other close the very instant when the conveyance is executed. “ And this doctrine,” said Lord Campbell, C. J., after an examination of the authorities in which it is recognized, and by which it is sustained, “ stands on natural justice, and is essential to the protection and enjoyment of property in the soil.” The same principle is asserted by this court in the opinion given by Parker, C. J., in the case of Thurston v. Hancock, 12 Mass. 220. The decision in the case of Lasala v. Holbrook, 4 Paige, 169, is to the same
The jury were therefore correctly advised that, if the defendant, by excavations in her own land, and by carrying away large quantities of earth and clay therefrom, caused the adjoining land to fall and sink into the pit which she had dug, she was liable for the injury done to the soil of the plaintiff; and that fflis action might be maintained to recover damages for the interruption and disturbance of his right of way in the passage ways, as well as for depriving him, or lessening the value, of the use of the land to which they were appurtenant. But it was erroneous, in the absence of any proof of carelessness, negligence or unskilfulness in the execution of the work, to add that they might take into consideration as an element of damage for which compensation could be recovered, the fact that the foundation of his house had been made to crack and settle.
In reference to the question of damages, the court also instructed the jury that the plaintiff was not a mere tenant at will, but was a tenant under a written contract, with a right to continue in possession so long as there was no failure on his part to perform all that was required by his contract with Hutchinson.
The defendant excepts to the refusal of the court to instruct the jury, in conformity to his request, that, if the injury complained of was in any degree caused by, or would not have occurred but for, the additional weight of buildings erected on their land by persons other than the plaintiff, he could not recover in this action. But this instruction was properly withheld. Whether, if the pressure of the weight of artificial structures which the owner has placed upon his own land for a lawful purpose and in its reasonable use, contributes to cause a slide or crumbling away of his soil into a pit excavated in an adjoining close by another proprietor, this will deprive him of the right to remuneration for the injury sustained, may be considered to be at least open to denial. It may be determined when the precise question arises. It does not arise here. But as to the much broader proposition asserted by the defendant in her request, we think there is no room for doubt. The absolute and unqualified right of property which vests in the owner of land cannot be diminished or lawfully affected by the acts or proceedings of strangers in the use and appropriation of that which belongs to them; and therefore he who, in the execution of an enterprise for his own benefit, changes the natural condition of the parcel
For the reasons stated, it is apparent that the verdict cannot be affirmed for the sum which the jury have found as the damages sustained ; and accordingly it must be set aside and a new trial granted.
The contract was as follows: —
“ Cambridge, Nov. 8, 1852.
“ An agreement of two parts, this day made between Erastus Hutchinson and John Foley, witnesseth the said Hutchinson has sold the said Foley the dwelling house and 5000 feet of land, that Barnard Gorman now lives in, for $425, and give a good deed of the same when there is $100 and the interest of the principal paid. And the said Foley agrees to work for the said Hutchinson, whenever he has work for him, at the same rate that he would for cash, and let one half of his wages go towards paying for the said house and land, and if so he that the said Foley should not work for the said Hutchinson but for some one else, then the said Foley shall pay to said Hutchinson one half his wages, leaving to himself one half to live upon. Erastus Hutchinson.
John Foley.”