158 Iowa 264 | Iowa | 1913
Plaintiffs owned lots 5 and 6 in block 14 in Seymour, abutting Fourth street. On these lots was a wooden building veneered with brick, two stories high, twenty-two feet in width, and eighty feet long fronting west on said street. It rested on a stone foundation, which on the south side was from two to three feet high and about three feet from the south line of the lots. Immediately south of this line is a lot or part of a lot owned by the defendants. About September 1, 1907, they began excavating a cellar or basement to be about eight feet deep and extending from the street back one hundred feet and up to the line mentioned. When the excavation was nearing completion, and during several days prior to the occurrence in controversy, considerable rain fell, and the evidence tended to show that the soil at the north bank of the excavation, softened somewhat and was crumbling away; that this continued until the brick began-to fall and the foundation to slip, so that the building settled about sixteen inches near the center on that side. The evidence also indicated that the usual method in protecting a bank next to an excavation is by lumber and posts or curbing, or by constructing the wall in sections as the excavation proceeds, and that, had this been done, the soil of plaintiffs’ lots would not have crumbled into the cellar. The 'evidence tended to show that the withdrawal of support by excavating the cellar caused the soil in its natural condition to crumble away, and the issue of whether the wall of the building slid out and let it Settle down in consequence of withdrawing the lateral support of the soil in its natural condition also was submitted to the jury; the court saying that defendants “would only be required to use ordinary eare in giving lateral support to the lot without the added weight of the building, and, if any additional support or precaution was necessary to protect the building, it was the duty of plaintiffs to furnish such support, and if the alleged injury and damage to plaintiffs’ building was not caused by the negligence of the defendant in failing tó use ordinary eare in giving lateral support to the soil of
In the last case the evidence tended to show that the soil contained sand and gravel, and that, on the excavation being made, the adjoining land would have slid into the excavation had it been in its natural condition, and that in doing so the building was injured, and the court, after a somewhat extended review of the authorities, concluded “as to the law of this and similar cases” that: “(1) While a landowner has the undoubted right to excavate close to the boundary line, he must take reasonable precautions to prevent his neighbor’s soil from falling (2) If he has taken such reasonable precautions, and yet the soil falls from its own pressure, he is still liable for injury to the land, but not for any injury to the superstructures. (3) If the pressure of the superstructure causes the land to fall, he is not liable either for injury to the land or superstructure. (4) If he fails to take such reasonable precautions to protect his neighbor’s soil, and to preserve it in its natural state, he is liable for the injury to both the land and the superstructure, if the pressure of the superstructure did not cause the land to fall, and it fell in consequence of the failure to take such reasonable precautions.” This is a clear summary of the law with reference to the liability of the excavator, and the instructions given were in harmony therewith.
Beebe was at the building- a few minutes after it fell, and testified: “It seemed to have settled in the middle; the foundation and stone work had gone down with the bank, and left it so that it creeled in the center; there were large cracks up the side of the brick work, and the brick work had crumbled some. I think the foundation had gone down sixteen inches in the middle. The ends of the building stayed up because it did not cave at the .ends. The first story of the front was glass, and the second story veneered and had two or three windows. The glass was broken. The east and west ends of the building did not settle. No part of the building fell clear over. The principal cave was at the center. There was not very much of the veneered brick wall off, as I saw it that afternoon.”
The account of one of the Jamisons was as follows: “When the building was precipitated into the excavation, it settled in the middle about sixteen to eighteen inches on one side. No other part of the building settled, except the front end was leaning a little; ‘it was in a twist.’ The fall affected the building so that it was all out of shape, was crooked; it was in a creel or buckle. Back fifty feet from the front it was settled; that left the other part of it in a twist. The floor went down until it struck solid ground on the south side. That is the walls. The foundation went down in the excavation. A part of the foundation slipped out from under the building. The foundation of the building was two and one-half or three feet of rock. The foundation slipped out for about twenty
.McAlister related that he “saw the excavation going on probably every day, and my attention was called to the crumbling and caving condition of the north wall prior to the caving of the building. The building caved on Monday, and I noticed the caving in of the wall of the excavation the previeras Sunday. The caving condition of the north wall was not to any great extent at that time. I should judge the excavation then was in the neighborhood of eight feet. The' crumbling condition of the wall seemed to be towards the top. . . . The soil in and. around Seymour is what we term ‘joint clay.’ The first layer is black soil, then you get down into the clay. The ordinary effect of a period of rainfall on that kind of soil is to make it crumbly. There is hardly ever a ease where an excavation stands without crumbling away or sloughing off.”
Another swore that “at the time the building caved in there wasj about forty feet of wall along the building had slipped in. There was a stone wall about three feet under the Jamison building. . . . Even if a building should be situated five to ten feet away if the wall was slipping, the proper method of protection would be by building a wall in sections or support it by lumber, usually by lumber.”
One Stormson testified that he had seen the clay, slip or cave in prior to the day the building settled, and that on that day he was digging in the cellar and noticed “the clay made a slip sidewise. . . . The building dirt and brick of the Jamison’s building came. The dirt came first, and then the brick came.”
Others testified concerning the occurrence, and there was other evidence indicating that joint clay when dry was hard, but when subject to the action of water was likely to crumble and fall away. Some of the evidence referred to was controverted by thfe defendant. Enough has been set out, however, to show that the issue was fairly for the jury.
The record is without error, and the judgment is Affirmed.