149 Pa. 155 | Pa. | 1892
Opinion by
The learned court below allowed a recovery of damages in this case, upon the rule that applies in cases where property is taken or injured by a corporation in the exercise of the right of eminent domain. We have very recently had occasion to consider this subject in the case of Robb v. Carnegie, 145 Pa. 324. We there held that that rule does hot apply in litigations
The rule that an owner is entitled to lateral support for his ground extends only to support for his ground in its natural state, and does not include such support for the protection of buildings or other structures placed upon it. This rule is well established, both in the English and American courts. It has been exhaustively considered in the ease of McGuire v. Grant, 1 Dutcher (N. J.), 356, and Gilmore v. Driscoll, 122 Mass. 199. The Chief Justice of the Supreme Court of New Jersey, in delivering the opinion in the former case, said: “ It is well settled that, where the owner of a lot builds upon his boundary line and the building is thrown down by reason of excavations made upon the adjoining lot (in the absence of improper motive and carelessness in the execution of the work), no recovery can be had for the injury done to the building. . . . But the cases denying the right of recovery under such circumstances are so numerous, and the modem cases so uniform, that the question must be considered as finally at rest, so far as authority can settle it,” citing numerous cases in support of the doctrine. The opinion then proceeds to discuss, at much length, the question whether the same principle applies to injuries done to the soil in its natural condition, with no buildings erected upon it, and concludes, that for such an injury there is a right of recovery, whether there be negligence or not on the part of the defendant, and that the measure of damages in such cases is the diminution in the actual value of the land injured. This conclusion is thus expressed: “ The decided weight of authority and sound principle concur in support of the position that there is incident to land in its natural condition a right to support from the adjoining land; and that, if the land sinks or falls away in consequence of the removal of' such support, the owner is entitled to damages to the extent of the injury sustained. The measure of damages in such case is not what it will cost to restore the lot to its former situation, or to build a wall to support it, but what is the lot diminished in value by reason of the acts of the defendant.”
On the question as to the measure of damages, Chief Justice Gray reached a conclusion which we think is more definite and less liable to misunderstanding in its practical application than the one announced in McGuire v. Grant. After stating that the plaintiff’s bank was left in such condition, that, by the effect of rains and frost, it was rendered insufficient to hold the soil of the plaintiff in its natural condition, he proceeds thus: “ The necessary inference is that by the operation of natural and ordinary causes upon the land as it was left by the excavations of the defendant, and which he took no precaution to guard against, part of the soil of the plaintiff’s land slid and fell off; and for the injury so caused to her soil this action may be maintained. But she cannot maintain an action for the injury to her fences and shrubbery, because her natural right and her corresponding remedy are confined to the land itself, and do not include buildings or other improvements thereon.” . . . “ It is agreed that the ‘ damages occasioned to the plaintiff by loss of, and injury to, her soil alone, caused by the acts of the defendant, amount to ninety-five dollars.’ We are of opinion that she can recover that sum and no more. She is clearly not entitled to recover the cost of putting her land into, and main-
The agreed statement of facts, upon which the court acted, had found that the damages caused by the injury to, and loss of, the soil alone was, $95.00, and that to restore the land to its former condition would cost $57 5, and to replace the fence and shrubs would cost $45.00 more. It was also further agreed that the difference in market value of the plaintiff’s lot, as affected by the defendant’s act, would be $620. Of these several methods of ascertaining that loss of the plaintiff which the law would recognize, the first one above stated was adopted. That, we consider, was the proper measure of damages in that case and in this. To hold that the proper measure of damages is the diminution in the value of the lot, as affected by the acts of the defendant, is, practically, to hold that the measure is the difference between the market value of the land before and after the injury, which, as we have before seen, and have recently decided, is not the true measure in litigations between private parties. In the ordinary actions of trespass upon land, the measure is the amount of the injury actually done to the plaintiff’s land, and we see no reason to depart from that rule in this case. As there was no cutting or loss of timber, and no removal of any mineral, and as there is no liability for injury to buildings or fences it would seem that the only element of damage appearing in the testimony is the loss of the soil. We do not, however, prejudge that question. If there were other elements of actual damage to the plaintiff’s land, they should be considered, but not, as we think, on the principle of allowing the difference in market value, either of the lot with the buildings, or without them, before and after the injury, or by •determining its diminution in yalue. We sustain the second, third, fourth, sixth, seventh, eighth, ninth, tenth and eleventh specifications of error. The other assignments are dismissed.
Judgment reversed, and new venire awarded.