168 Ga. 164 | Ga. | 1929
The MacMillan Company, oxvner of a lot in the
A demurrer and an answer to the petition were filed. In the demurrer the ordinance referred to in the petition as the building code of Atlanta was attacked as void, (a) because the charter of the city did not authorize its adoption; (b) because it is violative of the due-process clauses of the State and Federal constitutions. Another ground of demurrer was that under the allegations of the petition the defendant is not required by law to protect improvements upon the property of the plaintiff. This point was brought out more elaborately in the answer, by stating that the defendant has done nothing to deprive plaintiff of the lateral support of said property “in its natural state,” and it is under no duty “to
It is stated in IE. C. L. 380, § 14: “The principle that the owner of land has the right to lateral support from the adjoining soil, and that the adjacent proprietor may not remove the earth to such an extent as to withdraw the natural support of his neighbor’s soil without being liable for the injury, . . may be regarded as a settled doctrine of the common law.” It is further said that this right “applies only to lands in their natural condition, and does not extend so as to give the owner of a building erected on the confines of his land the right to have it supported laterally by the land of his neighbor, for it would not be right to deprive a person of the use of his land for any of the ordinary and legal purposes by reason of the fact that an adjoining landowner may, before that time, have erected a structure upon his own land. The principle established by the authorities is, that one landowner can not, by altering the natural condition of his land, deprive the adjoining proprietor of the privilege of using his own land as he might have done before; and consequently, that he can not, by building a house near the margin of his land, prevent his neighbor from excavating his own soil, although it may endanger the house.” See also note to Voeckler v. Stroehmann’s Vienna Bakery, Ann. Cas. 1917A, 350 (75 W. Va. 384, 83 S. E. 1025); 1 C. J. 1214, §§ 36, 39.
In Montgomery v. Trustees, 70 Ga. 38, 49 (decided in 1883), it was said: “The law is that the owners of adjoining land owe to each other, as incident to their juxtaposition, the lateral support of the soil of each to that of the other, in its natural state, whether they derive title from a common grantor or not. If they derive title from a common grantor, then that lateral support extends further than that of the soil in its natural condition, and embraces the superincumbent weight that may be upon it by fence, wall, or other burden. If, at the time the common grantor parts with title, there be buildings adjoining each other, then the right extends-to the lateral support which each adjacent wall gives to the other. If there be between the two proprietors a party wall — that
There is no contention that the parties derived title from a common grantor; therefore so much of the statute as defines the rights of parties claiming under a common grantor has no application to the case. The pertinent portions of both sections may be read together thus: “Owners of adjoining lands owe to each other the lateral support of the soil of each to that of the other in its natural stale. . . The owner of adjoining land has the right, on giving reasonable notice of his intention so to do, to make proper and needful excavations even up to the line for purposes of construction, using ordinary care and taking reasonable precautions to sustain the land of the other.” The words “using ordinary care and taking reasonable precautions to sustain the land of the other,” as employed by the statute, contemplate affirmative action “to sustain the land of the other.” What affirmative action will be required in a
That decision was followed in Wilkins v. Grant, 118 Ga. 522 (45 S. E. 415), in which a contractor made an excavation on a city lot which withdrew lateral support from the adjoining lot on which a house was located, and caused injury to. the house. The o^ner of
The rulings announced in headnotes 2-6 do not require elaboration.
Judgment affirmed on the main bill of exceptions, and reversed on the cross-bill.