52 Minn. 12 | Minn. | 1892
The predecessor in interest of this defendant filed its petition for the appointment of commissioners to determine ■the compensation to be paid to John C. Oswald and other owners for
The right to the lateral support of adjacent soil is fully recognized in this state as an absolute right, so that, if the owner of such adjacent soil remove the support, he is liable, wittout any question of negligence, for whatever injury ensues to the soil of his neighbor.
Those cases hold also that, in respect to this right, a municipal corporation, in its title to streets, (where the right to remove such support has not been acquired by condemnation,) stands on the same footing as an individual owner. A railroad corporation stands on the same footing. To justify its removal of the lateral support to the soil of an adjacent owner, it must show a right to do so acquired either by purchase or condemnation. As there was no purchase of the right in this case, the only question is, did the company acquire it by the condemnation proceeding shown. We have stated the purpose of the petition, and set forth that part of the award relating to Oswald’s land, to show that no interest in the soil outside of the one hundred foot strip was expressly sought to be condemned, or was by the award expressly condemned. The right to remove the soil of another, whether by taking away the natural lateral support, or otherwise, is an interest in such soil. Upon the condemnation proceedings that right could be held to pass to the company only, by holding that damages which might ensue from the exercise of such a right were included in the sum awarded. In collateral proceedings it is to be conclusively presumed that the commissioners passed upen and allowed all legitimate items or elements of damage to the landowner, and no other. In respect to such damage, the landowner has no remedy but in the condemnation proceedings.
It is not presumed, however, that the commissioners have assumed that the company will be guilty of any wrongful or negligent act, or that it will take any more than is set forth in the petition and order. They would have no authority ,to assume either, or to assess the damages upon such assumption. The description in the petition and order of the property sought to be taken is the limit of their authority to assess damages for taking. Had the petition and order in this case shown that the company was to acquire, not only the strip described for a right of way, but the right, by excavating, to remove the lateral support to the adjoining land, the award would be held to cover all damages to the owner by depriving him of the right, and the right to remove the lateral support would pass by the
The commissioners were bound to assume that the company or its engineers had ascertained how much land was necessary to construct and maintain the railroad, and had framed the petition accordingly, and were not at liberty to speculate on whether it might be necessary to encroach on adjoining land. Their only function was to assess the damages for taking the land so described out of the tract of which it was a part, and the damages to the remainder of the tract inci
Order reversed.
(Opinion published 53 N. W. Rep. 803.)