129 Mo. App. 620 | Mo. Ct. App. | 1908
The plaintiff, a married Avoman, for a cause of action alleges that on the 8th day of April, 1902, and prior thereto she was the owner and in possession of lot two (2), block twenty-three (23),. in St. Joseph Extension Addition, in the city of St. Joseph, Missouri; that on said day and on divers other days since said date defendants wrongfully, forcibly and against the will of plaintiff cut down, dug up, excavated and removed the earth adjoining to and along, on the south side of said lot to the depth of nine (9) feet, which said earth so removed constituted and was the lateral support of plaintiff’s lot; and did then and there wrongfully and against the will of plaintiff remove part of plaintiff’s lot thereby undermining and destroying plaintiff’s fence standing on the south line of her lot and
The amended answer of defendants on which the cause was tried after a general denial, .set up the further following defense: that about the time mentioned in plaintiff’s petition they graded the lot south of plaintiff’s lot as they had a right to do under the law. And it was further set up as a defense that the grading was done by an agreement between plaintiff and defendant but as it was not relied upon during the trial it is unnecessary to state it. The cause was tried before a jury and a verdict returned in favor of the defendants which upon plaintiff’s motion for a new trial was set aside. It is from the order granting a new trial the defendants appealed. The evidence showed that the defendants graded, the lot to the south of plaintiff’s lot to the depth of about eight (8) feet, and after which a part of plaintiff’s lot fell off.
The grounds upon which the court granted a new trial are as follows: “On the ground that the court erred in giving the 2nd and 3rd instructions for the defendants in that they announced in terms so strong as to be misleading, the right of the defendants to remove earth from their own lot, and also in giving defendants’ sixth instruction when there was no evidence that plaintiff’s house was near enough to the line to affect or cause the soil of the defendants’ (plaintiff’s) lot along the boundary line to fall.” The said instructions are as follows:
No. 2. “The jury are instructed that defendants had a legal right to grade the lot for the full width thereof and to any depth they pleased, and plaintiff would have no cause of action for such grading unless the soil of plaintiff’s lot was caused solely by such grading to crumble off or slide down, so as to decrease the market value of such lot, and it devolves on plaintiff to prove*624 to your reasonable satisfaction by preponderance of evidence, that the grading done by defendants caused the soil of plaintiff’s lot to crumble off or slide down, that the lot was thereby decreased in market value and also to prove the amount of such decrease in market value.”
No. 3. “The court instructs the jury that defendants had a legal right to grade the lot to the full width thereof up to the south line of plaintiff’s lot and to any depth they might wish, and they are not under obligations to build a retaining wall for plaintiff or restore the lateral support to her lot, but are liable, if at all, in this case, only for damages, as explained in other instructions.”
No. 6. “The court instructs the jury that this is a suit for alleged damages for removal of lateral support, defendant is not bound to protect houses or other improvements erected or constructed upon an adjoining lot, nor is defendant in such case liable for any damage that may arise from the crumbling off or sliding down. of the soil of a lot, caused by the presence of such house or other improvements; and if the jury believe from the evidence that plaintiff had on her premises a certain water-pipe, laid in a trench, dug from three to four feet deep, running near the south side of her lot, and if you further believe from the evidence that the only crumbling off, or sliding down of the soil of plaintiff’s lot was caused by such water-pipe or trench or the work about them, the verdict must be for defendant.”
Instruction numbered two (2) we think is a proper declaration of the law of the case. In Larson v. Railway, 110 Mo. l. c. 242, the court said: “It is settled law that the unquestionable right of a landowner to remove the earth from his own premises adjacent to another’s building is subject to the qualification, that he shall use ordinary care to cause no unnecessary damage in so doing.” And it was also said: “It is ancient and ele
There is no liability in such cases unless the adjoining landowner in excavating his lot up to the boundary line, is guilty of negligence in so doing, which would produce an injury to the land of the adjoining proprietor. [Charless v. Rankin, 22 Mo. 566; The Victor Mining Co. v. The Morning Star Mining Co., 50 Mo. App. l. c. 534.] In the latter case it was also said “No damage is recoverable unless there has been an actual disturbance of the integrity of the soil.” [See also Walters v. Hamilton, 75 Mo. App. 238.]
We have not. seen fit to cite decisions of other states for the reason that our own courts have held to the same doctrine without a break. It will be gathered therefore that from the mere fact the defendants excavated the lot up to the line between themselves and the plaintiff and thereby removed the lateral support of her land, afforded her no cause of action against them for so doing. It should have been shown that in so doing they failed to use ordinary care which resulted in an injury to plaintiff’s lot. She was present living upon her lot and it was her duty to protect her lot from damage if any, caused by the acts of the defendant if they acted with proper care and caution. The record in our opinion does not show that defendants were guilty of negligence in excavating their lot. What has
We can see no error in the giving of defendant’s sixth instruction. It is not denied but what it asserts a correct principle of law but the court said it was not supported by evidence. But there was evidence tending to show that the excavation did not cause the caving in and falling off of plaintiff’s lot but that it was due to a water-pipe and ditch along the side of it: that this water-pipe was about three feet under the earth and was frozen at times, which caused it to burst from which the water entered into the ditch and into the earth near the top of the excavation. And we gather from the record that several months elapsed after the grading was done before the dirt caved on plaintiff’s lot. If this be true as the plaintiff so stated in her brief the integrity of the earth on plaintiff’s lot had in no way been disturbed by the excavation made by the defendants. Therefore it would follow that the excavation had been done with proper care and caution and that the caving off of the earth from the plaintiff’s lot was the result of other causes for which the defendant would not be liable. The plaintiff seeks to support the action of the court upon a ground other than that given by the court for its action in granting a new trial which is that the verdict of the jury ought to have been for plaintiff on the evidence. But we think not for one reason at least and that last stated, that the evidence showed that the injury was produced by some other agency than the act of the defendants. The cause is reversed with directions to set aside the order granting a new trial and to enter up a judgment in favor of the defendants.
