Hirschberg v. Flusser, 91 N.J.L. 66

Hirschberg v. Flusser

91 N.J.L. 66 | N.J. | 1917

The opinion of the court was delivered by

Parker, J.

This appeal turns upon the meaning and effect of the statute entitled “An act relating to party walls and other walls standing upon or near boundary lines of adjoining lands,” first enacted in 1871. Pamph. L., p. 20; Rev. 1877, p. 809. The title was amended in 1909. Pamph. L.) p. 200; Gomp. Stat., p. 3926. The act provides “that whenever any excavations hereafter commenced, for building or other purposes, on any lot or piece of land, shall be intended to be carried to the depth of more than eight feet below the curb or grade of the street, and there shall be any party or other wall, wholly or partly on adjoining land, and standing upon or near the boundary lines of such lot, the person causing such excavations to be made, if afforded the necessary license to enter on the adjoining land, and not otherwise, shall at all times, from the commencement until the *67completion of such excavations, at his own expense, preserve such Avail from injury, and so support the same by a proper foundation that it shall remain as stable as before such excavations Avere commenced.” The pertinent facts are that plaintiff and defendant Avere adjoining OAAmers; that defendant proposed to build on his OAvn land and to excavate for that purpose more than eight feet in depth, and obtained a license to enter on the plaintiff’s land for the purpose of providing proper support to a Avail of plaintiff’s building. The situation was therefore concededly within the statute. The case further shows that during the excavation plaintiff’s wall cracked and sagged, and plaintiff sued for the damages caused thereby. At the trial the jury Avere told to ascertain whether the Avail Avas injured as a result of defendant’s excavations, and if so, then to ascertain further A\rhether defendant had done Avhat the Iuav required him to do to preserve plaintiff’s property, and the jury AArere instructed that if he had so done, plaintiff could not recover. The jury returned a verdict for defendant, and plaintiff on this appeal claims that the trial court failed to give full effect to the statute. The plaintiff’s position is that by the act, one excavating over eight feet on his oAA'n land must at his peril protect the Avail of his neighbor from injury by reason of such excavation; the defendant’s, that the excavator must use all reasonable care so to protect the Avail on the adjoining premises, but cannot be held to more than that.

Plainly, the statute is a radical departure from the common law, Avhieh contented itself with requiring support of the adjoining land alone, and left its ovATier to care for his own building, after reasonable notice of the intended excavation. Schultz v. Byers, 53 N. J. L. 442. The language of the act of 1871 is so strong and so plain as to leave little, if any, room for doubt. In a ease AAdthin its purvieAV it requires the person causing the excavation to be made, AAdien licensed to enter on the other’s land for that purpose, at all times from commencement to completion, at his OAvn expense, to preserve said Avail from injury, and so support the same by a *68proper foundation that it shall remain as stable as before such excavations were commenced. There is nothing in this about due care, or reasonable care; the duty is an absolute one, to-support the wall'and keep it as stable as before the excavation was begun. We have difficulty in imagining language that could be stronger or more explicit.

Viewed in this light, there was error in the judge’s instructions to the jury. At one place he quoted the statute and correctly charged that if the defendant failed to support the wall, and it sagged as a result of that failure, defendant was liable; but the effect of this was destroyed by instructions elsewhere in the charge, in which he left it to the jury to say whether the wall was protected as soon as was reasonably necessary to preserve it from injury. The two questions put to the jury were, first, did the building settle because of the excavation, and secondly, if so, did tire defendant do what the law requires him to do to protect plaintiff’s property; if he did, then even if the building settled (because of the excavation) the defendant would not'be liable.

As we read the statute, an affirmative answer to the first question necessarily requires a negative answer to the second; for the law required defendant to prevent any settlement as a result of his excavation. The underlying idea of the charge' seems to have been that if defendant did all that he reasonably could do, he should not be held, even though he failed to> prevent injury. This, we think, is not the law. And the-fact that the law was properly laid down at one place in the charge will not cure the error in the other part. State v. Tapack, 78 N. J. L. 208. Nor can we assume that the jury found the building did not settle because of the excavation,, for they were not called on to answer that question separately.

The judgment will be reversed, to the end that a venire d'e novo issue.