The second count of the third amended petition, being the count upon which the case was submitted, charged defendant with a trespass upon plaintiff’s real estate in that defendant, while excavating upon his own lot for the foundation of a building, entered upon plaintiff’s property and wrongfully excavated and removed large quantities of dirt therefrom, thereby weakening the lateral support of plaintiff’s building so that the west wall thereof fell, and plaintiff was damaged to the extent of the amount for which judgment was prayed.
The answer was a general denial, together with the charge that if the defendant or any one for him entered upon plaintiff’s property and excavated as alleged in plaintiff’s petition, it was with plaintiff’s consent.
The answer also set up, as further and separate defense, that the defendant duly notified plaintiff that excavating' would be done, along the dividing line between the two properties, and plaintiff had knowledge of such excavating sufficiently long before the wall fell to enable her to protect her building but negligently failed to do so. As this would constitute no defense whatever to the trespass charged, we take it that it was intended 'as a defense to the first count of plaintiff’s petition which defendant construed as' charging a negligent excavating upon defendant’s own property along said dividing line. But at the" close of plaintiff’s case, she dismissed the first count and stood solely upon the second count charging trespass.
The answer also charged that the wall fell by reason of its own faulty construction “and not through any
At the close of plaintiff’s case defendant offered a demurrer to the evidence, which was overruled. Then after defendant’s evidence was in and both sides had rested, the defendant again offered a demurrer. This was also overruled. The case was thereupon submitted to the jury which returned a verdict for plaintiff in the sum of $950. Judgment was rendered thereon and defendant has appealed.
Plaintiff owned a lot on which stood a two-story brick building used as a flat. Defendant owned a vacant lot west of and adjoining plaintiff’s lot. The west wall of plaintiff’s building was located four feet from the «.west line of her lot, so that between defendant’s east line and plaintiff’s wall was a strip of ground belonging to plaintiff which was four feet in width.
Desiring to erect a building upon his property, defendant made an excavation on his lot for a foundation ■and basement. This excavation was about eleven feet deep and extended from the north or sidewalk line of the lot south to a point about even with the south or rear end of plaintiff’s building; and the east line of said ^excavation coincided with the division line between the two lots. As thus made, the excavation was wholly on defendant’s property, and was four feet from the west wall of plaintiff’s building, hut in depth it went several feet below the footings of the plaintiff’s foundation; and the west side of plaintiff’s lot was a perpendicular wall of dirt. Defendant was going to erect his east foundation wall alongside of and against this division line. He desired to cement the outside of this foundation wall to keep out the moisture and, in order to have room to do so, it was necessary for him to excavate about two feet beyond his line and over on plaintiff’s down to the depth of his foundation. He, therefore, entered upon plaintiff’s land and excavated about two feet on her lot down to the depth of his excavation. This excavation on plaintiff’s lot, some of the witnesses say, went down almost if not quite perpendicular, while others say it slanted toward the property line as it went
The ground, or at least one of the grounds, upon which defendant rests his demurrer is that the record fails to show any connection of the defendant with the trespass.. This claim is untenable. It is conceded, that the defendant owned the lot west of plaintiff’s lot, and that the excavation first made was on defendant’s lot. There is ample evidence in the record tending to show, not only that the excavation upon defendant’s lot but also the excavation on plaintiff’s lot, was done by defendant through his agents and servants.' The same individuals who made the one excavation also made the other. The excavation on plaintiff’s property which, if done without her consent, constituted a trespass, was done in order to properly protect defendant’s foundation from moisture and was, therefore, for defendant’s benefit. The evidence shows that the defendant paid for the work by giving a check on his firm’s account. It also appears in evidence that the man who sought to obtain plaintiff’s permission to excavate on her lot was acting for the defendant. These facts were clearly sufficient to raise the presumption that the excavation was made by the servants of the defendant. [Perry v. Ford,
Defendant attaches much importance to the remarks of the court made at the time the final demurrer was overruled as to what the court should have done when the first demurrer was offered. The case is not affected by those remarks but only by what the court did. [Griffith v. Griffith,
In addition to the facts shown by the evidence in the case, the plaintiff introduced in evidence and read to the jury defendant’s answer stating that he notified plaintiff of the excavation he was about to make. This was introduced as an admission upon defendant’s part that he was having the excavation done, at least that part thereof which was on his own land, and as the excavation which was on the plaintiff’s land was for the purpose of enabling defendant to properly protect his foundation, the jury could 'lawfully infer that the excavation upon the plaintiff’s land was also done by defendant, his servants and agents. [Walters v. Hamilton,
Defendant.says the trial court, in admitting the answer erroneously shifted the burden of proof. This view is upon the theory that no case whatever was made for the plaintiff unless the answer be regarded as supplying the lacking, but necessary, connection of defendant with the excavation; and, as there is no inconsistency in joining with the denial of a trespass an averment of facts which if true, controverts the trespass (Ewen v. Hart,
We do not find any point made in the brief that the court erred in excluding defendant’s offer to show that the rental agent gave permission to excavate; but if such point was intended to be made, we answer same now by saying that, there was no showing that the agent had authority to grant permission. Besides, if he granted permission under the belief that the owner had consented which belief was induced by the statement made to him that permission had been obtained, such consent
It is further contended that plaintiff’s evidence failed to show that the excavation on plaintiff’s land, and the consequent caving away of the dirt from her foundation, caused her wall to fall. The point is without merit. The cause of the wall’s falling was for the jury and the evidence was ample to justify them in finding that the excavation did it. The excavation that caused the wall to fall was not the lawful'excavation upon defendant’s own property, but the wrongful excavation made upon plaintiff’s lot. The building stood safe and unaffected for two weeks after the excavation made on defendant’s lot, but when the excavation was made on plaintiff’s lot the wall fell. If such excavation was wrongful, because without plaintiff’s permission, then defendant is liable for the results that followed directly from such wrongful invasion of plaintiff’s rights.
It was conceded at the trial that the measure of plaintiff’s damages was the reasonable cost of restoring-plaintiff’s building to substantially the same condition it was in before the wall fell. Plaintiff’s evidence tended to show that it would cost $1034.70' to do this. The point that this estimate contemplated a much better wall than the one that fell cannot be sustained. The evidence is that the wall contemplated in the estimate was the same, the only difference being that, now, the mortar used is cement instead of lime, while it was lime that was used when the original wall was built. The jury’s verdict of $950 was well within the evidence as to the expense of restoring the building to its former state.
Evidence offered by the defendant, but excluded, as to what sort of building plaintiff was going to erect and the change from an apartment house to a business house, and that the house as an apartment house did not pay, was wholly immaterial, and the court committed no error in excluding it.
The judgment of the trial court should be, and is, affirmed.