9 S.D. 301 | S.D. | 1896
This was an action to recover damages to the real and personal property of the plaintiff, alleged to have resulted from the wrongful and negligent excavation made by the defendants on land'adjacent to plaintiff’s land. The answer was a general denial. Verdict and judgment for the defendants, and the plaintiff appeals.
In addition to a general verdict,1 the jury found as follows, upon special issues submitted to them: “(1) When did the plaintiff, Novotny, first know that the defendant, Danforth intended to excavate east of and adjacent to his (Novotny’s) lot? A. The day the excavation commenced on the Danforth cellar. (2) Did the earth under the Novotny wall fall by reason of its own weight, or by reason of the weight of the wall resting upon it? A. The weight of the wall. (3) Would the Novotny building have fallen within such reasonable time as would have been required to build a cellar wall in the west side of the Danforth cellar if the excavations for stone piers under the Novotny building had not been made? A. No. (4) Would the land of Novotny adjacent to Danforth’s land have fallen if it had been in the natural condition, and without the superadded weight of the Novotny building? A. No.”
The plaintiff was the owner of a lot, with a brick building thereon, in the city of -Yankton. The defendant Danforth was
On the trial, after the plaintiff had been examined by his counsel at great length as to the accident, its cause, and the amount of his damages, he was asked on cross examination: “Did not Valentine have a contract for some' excavating for you at the same time?’’ This was objected to, as incompetent, irrelevant, immaterial and not proper cross examination. The objection was overruled, and the plaintiff excepted. He answered: “It was to be made under my east wall, which was right west of the Danforth cellar. * * * The'first time I had any talk with Mr. Valentine in regard to a contract for putting in my foundation was the last of July. * * * We made the contract then at that time.” It is now contended that this was not proper cross examination, as the witness had not been interrogated as to tjhis matter on bis direct examination,
At the close of the evidence, the plaintiff moved the court to direct a verdict for the plaintiff, against all the defendants, except as to the question of damages. This motion was granted. But, on the following day, the court set aside its former order. To the last order the plaintiff excepted, and this ruling of the coui’t, in setting aside its former order, is assigned as error. The facts upon which the original order was granted are somewhat complicated, but may be briefly stated as follows: The plaintiff’s deed to his premises described the property as the E, i of the W. -J- of lots 10 and 11 in block 25 of the city of Yankton. Danforth’s deed to his property describes his lot as the W. -J- of the E. \ of lots 10 and 11 of block 25. These two lots, 10 and 11, were laid out east and west and were supposed to be 150 feet in length; but, by survey, they were found to be 151 feet and 1 inch in length. In addition to the general description in Danforth’s deed is the following description: “Beginning on the north line of Third street, at a point fifty feet westerly from the southeast corner of said lot ten;” describing a lot 25 feet in width. The plaintiff therefore contended that there was a strip of land 6 or more inches in width between
At the close of all the evidence, the counsel for the plaintiff moved the court, in addition to the other grounds stated, to direct a verdict for the plaintiff on all the issues, except as to the amount of the damages, for the reason that no notice had been shown to have been given, as required by law, by Danforth, to authorize him to make the excavation. The motion was denied, and this is assigned as error. Comp. Laws, § 2784, provides as follows: “Each co-terminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land subject to the right of the owner of the adjoining land to make proper and usual excavations on the same for purposes of construction, on using ordinary care and skill, and taking reasonable precautions to sustain the land of the other, and giving previous reasonable notice to the other of his intention to make such excavations. ” It will be observed that the m anner of giving the notice specified in the section is not prescribed. Any notice, therefore, that brings to the knowledge of the otherparty that the coterminous owner intends to excavate his lot, and to erect abuilding thereon, in time to enable such party to make the needed preparation to protect his property, would seem to be sufficient. In this case the undisputed evidence shows that in the latter part of July, two weeks or more before the Danforth grading was finished, the plaintiff had this knowledge, and made a contract with Valentine to do the necessary work in
The court gave the jury the following instruction, which is assigned as error: ‘ ‘The defendant, in making such excavation, under the law, was not bound to exercise such extreme care as an owner might exercise in the protection and preservation of his own property from loss or damage by reason of the act complained of. He was only bound to use such care in making the excavation as a man of ordinary care and prudence would deem sufficient — such care as a man of ordinary prudence would say was sufficient — -in the exercise of his right to make this excavation. If he failed in using such a degree of care, and by reason of his want of care, which constitutes negligence, the plaintiff was injured, the plaintiff would be entitled to recover in this case.” Precisely what the objections are to this instruction do not clearly appear from the appellant’s brief, except that it does not follow the language of the statute, and omits the notice clause. After a careful examination, we discover no error in the instruction. All that the statute requires is the use of ordinary care and skill, and the taking of reasonable precautions to sustain the land of the other, — not the land with its superincumbent weight, but the land itself. Ulrick v. Trust Co. 2 S. D. 285, 49 N. W. 1054. The law applicable to this class of cases was so fully discussed in the latter case that further discussion seems unnecessary. The instruction complained
Finding no error in the record, the judgment of the court below is affirmed.