Nichols v. City of Duluth

40 Minn. 389 | Minn. | 1889

Mitchell, J.

These actions were brought to recover the cost of a retaining wall built by the several respondents to support the soil of their respective lots so as to prevent it from falling into the adjoining street. The evidence abundantly supports the verdict of the jury that the construction of the wall was rendered necessary by reason of the appellant city excavating the street (in grading it) so as to remove the lateral support which it naturally rendered to the soil of the adjacent property of respondent. On these facts the doctrine of O'Brien v. City of St. Paul, 25 Minn. 331, and Dyer v. City of St. Paul, 27 Minn. 457, (8 N. W. Rep. 272,) is decisive of the present cases. Every person has a right ex jure natures to the lateral support of the adjoining soil, and is entitled to damages for its removal. A municipal corporation has no greater rights or powers in that regard over the soil of the streets than a private owner has over his own land, and will be liable in damages for removing this lateral support the same as would a private owner if improving his property for his own use. It is no defence that the excavation was necessary for the purpose of grading the street. If the city desires greater rights than those possessed by private owners it must acquire them by the exercise of eminent domain. It must either do this, or else itself substitute other lateral support in place of the soil which it removes. The liability of the city in these cases does not depend, as appellant assumes, upon its negligence in making the excavation. This right of the lateral support of the adjoining soil, being a natural one, is absolute, and independent of any question of negligence.

Orders affirméd.