89 N.Y.S. 609 | N.Y. App. Div. | 1904
The plaintiffs were the owners of land south of Jefferson street in the village of Haverstraw, and the defendant owned a considerable tract of land north of. that street. The soil in this vicinity, north and south for several miles and back from the Hudson river several hundred feet, is peculiarly adapted to the making of brick, and for upwards of twenty-five years the plaintiffs and their predecessors in title have been engaged in digging away the surface of their land to procure materials therefor. The defendant has also been engaged in the same enterprise, and in' the year 1895, owing to more extensive operations, had dug deeper into his premises than the plaintiffs. This action was brought to recover damages resulting from the defendant’s extensive excavations, by reason of which, in each of the years 1895 and 1899, large quantities of clay and sand subsided or slid from plaintiffs’ land upon those of the defendant. The •excavations and operations still continued, and an injunction was asked to restrain the defendant from further similar use of his lands. Defendant had dug tip to the center of the fifty-foot strip known as Jefferson street, which appears to have been long since abandoned as a public highway. The complaint was dismissed upon the merits and plaintiffs appeal.. -
The court made this finding of fact: “ The subsiding and falling and slipping away aforesaid of. soil on the lands of the plaintiffs,
It seems to be settled that so far as lateral support of the soil is concerned, in its natural state, without the burden of buildings upon it, the occupant of land may be protected by injunction against excavations tending to cause his land to subside or slide away. (Trowbridge v. True, 52 Conn. 190.) “The natural right of support, as between the owners of contiguous lands, exists in respect of lands only, and not in respect of buildings or erections thereon. (Panton v. Holland, 17 J. R. 92; Thurston v. Hancock, 12 Mass. 221; Humphrey v. Boyden, 12 Q. B. 139.
■ The views we have expressed render it unnecessary to discuss the legal questions said to be involved by reason- of the fifty-foot strip, known as Jefferson street, intervening between the lands of the parties and the questions of ownership therein presented by the record.
- The judgment should be affirmed, with costs. •
All concurred.
Judgment affirmed, with costs.
Humphries v. Brogden, (12 Q. B 739.) — [Rep.