Lasala v. Holbrook

4 Paige Ch. 169 | New York Court of Chancery | 1833

The Chancellor.

I can readily believe, from the nature of the soil and from the great depth of the defendant’s intended excavation below the foundation of the church, that the complainants’ fears for the safety of their building are not entirely groundless; although the defendant alleges in his answer, and undoubtedly supposes there is no danger of serious injury to the walls of the church from the proceedings of his workmen. It is not, however, alleged in the complainants’ bill that the defendant is proceeding to improve his property in an unreasonable, or unusual manner, or with any intention of injuring their wall or building. Neither do they claim any particular privilege as belonging to their church, either by grant of the defendant, or those under whom he claims, or by prescription. This case, therefore, presents the question whether one person can be restrained from making a reasonable improvement on his own premises, because the same cannot be made without endangering a modern edifice erected upon the adjacent premises of another. Sic utere tuo ut aliemm non lerdas, is a maxim well known to our law; but the propriety of applying this maxim to a particular case sometimes becomes a question of great doubt, from the difficulty in determining what is a legal injury to the property of another. The erection of a new mill, in the immediate vicinity of one which had been previously erected by another person, might in fact destroy a moiety of the value of his mill, yet this maxim could not be properly applied to such a case. The owner of the first mill sustains no legal damage, because at the time lie erected it he knew his neighbor had a legal right to make asimilar improvement on his own premises, of which he could not deprive him by the previous erection. But if the first mill was supplied by a stream of water which had been accustomed from time immemorial to flow in a particular channel, the owner of the second mill could not divert the stream from its accustomed channel, although done on his own land, so as to deprive the first mill of its necessary supply of water. . The diverting of the water in such a case would be a legal injury to the owner of the first mill; because it would deprive him of a natural right, which was paramount to the right of his neighbor to an artificial use of the water. Upon examining the several cases on the subject, the same principles appear to have been applied to injuries arising to the owner of one lot by the artificial use of an adjacent lot by its owner. I have a natural right to the use of my land in the situation in which it was placed by nature, surrounded and protected by the soil of the adjacent lots. And the owners of those lots will not be permitted to destroy my land by removing this natural support or barrier. Thus it is laid down by Rolle, that I may sustain an action against a man who digs a pit on his own land so near to my lot that my land falls into the pit. (2 Rol Abr. 565, l. 10.) But my neighbor has the right to dig the pit upon his own land, if necessary to its convenient or beneficial use, when it can be done without injury to my land in its natural state. ^(a) I cannot, therefore, deprive him of this right by erecting a building on my lot, the weight of which will cause my land to fall into the pit which he may dig in the proper and legitimate exercise of his previous right to improve his own lot. (1 Sid. Rep. 167. 2 Roll. Abr. 565, l. 5.) These principles were fully recognized by Ch. J. Parker, in the case of Thurston v. Hancock, (12 Mass. Rep. 223,) where it was held that the defendants, who had excavated their own lotto the depth of thirty feet below the foundation of the plaintiff’s house, were not liable for having thus placed the house in a dangerous position; but that the plaintiff was entitled to recover for the damage, if any, which had been occasioned by the loss of his soil in consequence of such excavation. And in the case of Panton v. Holland, (17 John. Rep. 92,) where the defendant, in the exercise of ordinary care and skill in mating an excavation for the improvement of his own lot, had dug so near the foundation of the plaintiff’s house as to cause it to crack and settle, it was held he was not liable for the injury. From the recent English decisions it appears that the party who is about to endanger the building of his neighbor by a reasonable improvement 'on his own land, is bound to give the owner of the adjacent lot proper notice of the intended improvement, and to use ordinary skill in conducting the same; and that it is the duty of the latter to shore or prop up his own building, so as to render it secure, in the mean time. (See Peyton v. The Mayor of London, 9 Barn. & Cress. 725. 4 Man. & Ry. 625, S. C. Walters v. Pfeil, 1 Moody & Malk. 362. Massey v. Goyder, 4 Car. & Payne, 161.) There is another class of cases, however, where the owner of a building on the adjacent lot is entitled to full protection against the consequences of any new excavation or alteration of the premises intended to be improved, by which he may be in any way prejudiced. These are ancient buildings, or those which have been erected u pon ancient foundations, and which by prescription are entitled to thejpecial privilege of being exempted from the consequences of the spirit of reform operating upon the owners of the adjacent lots; and also those which have been granted in their present situation by the owners of such adjacent lots, or by those under whom they have derived their title. (Palmer v. Fleshees, 1 Sid. 167. Cox v. Matthews, 1 Vent. 237, 239. Story v. Oden, 12 Mass. Rep. 157. Brown v. Windsor, 1 Cromp. & Jer. Rep. 20.)

In the case under consideration, the complainants’ church was not entitled to any special protection against the consequences of the present proceedings of the defendant, either by prescription, or by grant from the owners of the adjacent lot upon which the excavation was going on. And as the defendant and his workmen are in the exercise of reasonable care and skill in the erection of his building, and in laying the foundations thereof, the complainants must adopt such course as will secure their church against the dangers to which it is ■exposed. They are not, therefore, entitled to the aid of this court, to suspend the operations of the defendant; and the injunction must be dissolved.

(a) See Wyatt v. Harrison, (3 Barn, & Adolph. Rep. 871.)