311 Mass. 352 | Mass. | 1942
This is a bill in equity by which the plaintiff seeks to compel the defendant to rebuild or repair a retaining wall on the defendant’s land which provides lateral support to the plaintiff’s land. The judge entered an interlocutory decree overruling the defendant’s exceptions to the master’s report and confirming the same, and a final decree ordering the defendant to “provide adequate support to the plaintiff’s land, at the rear thereof, adjoining the retaining wall ... by strengthening the said retaining wall now existing, or by any other effective means which will provide adequate support to the plaintiff’s land . . . £and enjoining the defendant] from doing any acts, or permitting any acts to be done, which will weaken further said retaining wall or in any way deprive the plaintiff’s land of its present lateral support.” Under the terms of the decree the defendant was further enjoined from removing props and beams supporting a portion of the retaining wall “until permanent support to the plaintiff’s land is made,” and the defendant was ordered to pay the plaintiff $15 (damages) and costs. The defendant’s appeal from the final decree brings the case before us.
Material facts found by the master follow: The plaintiff is the owner of a parcel of land with a dwelling house thereon situated on the southerly side of Middle Street in Gloucester. The lot runs easterly along the street sixty-five and thirty-seven hundredths feet, southerly one hundred one and seventy-six hundredths feet, then westerly eighty-three and twenty hundredths feet and northerly one hundred and sixty-five hundredths feet.
The wall, of granite construction, is approximately eighty-five feet long and fourteen feet high, and on its top at the easterly part thereof there is a brick wall four feet high and approximately fifty-five feet long. The granite wall is in disrepair and is not sufficiently strong to support the land of the plaintiff without being repaired or properly braced. The plaintiff’s land has caved or fallen in, and is cracked to a greater or lesser degree along the entire rear line of her property. Originally the plaintiff’s and the defendant’s lands were on a “sloping ridge or hill, which sloped southerly from Middle Street down to the sea.” The defendant’s land, due to excavations, is now level, but the plaintiff’s land still slopes down to the retaining wall. The plaintiff’s and the defendant’s respective lots “were never held by the same ownership.”
Prior to 1937 there was standing on the defendant’s property a stable built close up against and abutting the retaining wall. This building was erected prior to the year 1880. It was a substantial structure with upright timbers close up against the wall, and the roof of the easterly part of the stable was fastened directly to the wall. This building furnished support to the wall. In 1937, however, this stable was completely demolished, and in the spring of 1938 there was a sinking of the land in the rear of the plaintiff’s lot forming a large hole four or five feet deep, ten or twelve wide, extending six or eight feet to a point about four feet from the rear of the plaintiff’s house. Later other holes appeared.
To remedy this condition the plaintiff, with the defendant’s permission, shored and supported the most unstable part of the wall with wooden timbers and the parties
The master found that there “was no evidence establishing the date, when, or the person by whom, this excavation of the defendant’s land was made, or when or by whom the wall was built,” but he also found on all the evidence and the reasonable inferences therefrom that the excavation had been made by a former owner of the defendant’s land (between 1848 and 1876) and that the wall was constructed at that time by the same person to provide support for the plaintiff’s land.
The defendant has argued that the finding of the master that the wall was constructed entirely upon the defendant’s property is inconsistent with the subsidiary facts found by the master. This contention cannot be sustained. There is nothing inconsistent between that finding and the subsidiary finding that the wall and the rear line of the plaintiff’s property coincide. The wall could still be on the defendant’s land and be coincident with the boundary line. Moreover, the maps and charts incorporated by reference in the report of the master, which are before us, demonstrate that the wall is on the defendant’s land, as found by the master. That he found that three stones on the top course of the wall projected a few inches over the plaintiff’s boundary line does not vitiate the general finding under discussion.
The defendant also contends that the findings of the master that the excavation had been made by a former owner of the defendant’s land between 1848 and 1876, and that the wall was constructed by that owner to provide support for the plaintiff’s land are inconsistent with the subsidiary finding that there was no evidence establishing the date when, or the person by whom, the excavation of
The decisive question is what are the legal duties and responsibilities of the defendant with relation to the maintenance of the retaining wall built by a predecessor in title in the circumstances before set forth. The law with relation to lateral support is of ancient origin and is firmly established. “The right of an owner of land to the support of the land adjoining is jure naturae, like the right in a flowing stream. Every owner of land is entitled, as against his neighbor, to have the earth stand and the water flow in its natural condition . . . [and] in the case of land, which is fixed in its place, each owner has the absolute right to have his land remain in its natural condition, unaffected by any act of his neighbor; and, if the neighbor digs upon or improves his own land so as to injure this right, may maintain an action against him, without proof of negligence.” Gilmore v. Driscoll, 122 Mass. 199,201 et seq., and cases cited. Kronberg v. Bulle, 247 Mass. 325,328. Triulzi v. Costa, 296 Mass. 24, 27. See cases cited in 50 Am. L. R. 486 et seq.
These principles were recognized for the most part in Lyons v. Walsh, 92 Conn. 18, but it is true that in that case the court, while holding that the plaintiff was entitled to recover damages from a subsequent owner of the servient land, was of opinion that the equitable relief sought, that is, that the defendant should restore the wall to its original condition, should not be granted because the court was not satisfied that irreparable injury was “clearly, enough disclosed to warrant the exercise of so drastic a power.”
We have already said, in substance, in Foley v. Wyeth, 2 Allen, 131, and Gilmore v. Driscoll, 122 Mass. 199, that the right to lateral support of soil in its natural state is a property right which naturally attaches to and passes with the soil without any grant thereof. We concur in the reasoning in Foster v. Brown, 48 Ont. Law Rep. 1, which we have hereinbefore set forth at some length, and are of opinion that the burden of providing lateral support to the plaintiff’s land in its natural condition is One of continued support running against the servient land.
Decree affirmed with costs.
Through apparent inadvertent but immaterial error the directions of these bounds were stated incorrectly by the master.