2 S.D. 285 | S.D. | 1891
The respondent was and is the owner of a parcel of ground in the city of Watertown, S. D., upon which was and is situated a ‘ ‘two-story business building with solid brick walls, and basement with solid stone walls. ” During the same time appellant was the owner of the ground adjoining respondent’s on the west. .
In the summer of 1887, preparatory to the erection and construction of a building by appellant on its said land, an excavation was made thereon for cellar and foundation walls. It is claimed by respondent that such excavation was done by appellant wrongfully and negligently, and without giving any notice to plaintiff of its intention to make the same; that it so excavated the land adjacent and contiguous to respondent’s said land, and the said building situate thereon, and removed the earth therefrom, without leaving sufficient lateral support for respondent’s said land and building, and did wrongfully and negligently excavate the land and soil from below and beneath the stone basement wall of respondent’s said building without
The assignments of error are very numerous, but may be considered subjectively under four propositions: (1) Appellant’s liability under the allegations of the complaint, and the evidence tending to support the same; (2) the effect of appellant’s allegation, and the evidence thereunder, that the excavation complained of as the cause of the injury was not the work of appellant, but of an independent contractor; (3) the proper
Appellant and respondent were coterminous owners of the parcels of land upon which, respectively, the injured building was situated, and upon which the excavation was made which is claimed to have caused the injury. A fundamental question in this case is the extent of appellant’s right to excavate upon, its own soil, and adjoining respondent’s foundation wall, and under what conditions it would be liable for damages resulting therefrom. There is, as incident to land, in its natural condition, a right to support from the adjoining land, and if land not subject to artificial pressure sinks or falls away, in consequence of the removal of such support, the owner may have an action for damages against the party thus removing such support. Moellering v. Evans, 121 Ind. 195; 22 N. E. Rep. 989; McGuire v. Grant, 25 N. J. Law, 356; Transportation Co. v. Chicago, 99 U. S. 635; 3 Suth. Dam. pp. 417, 418; 2 Washb. Real Prop, p. 380. This right of action does not depend upon negligence and unskilfullness, but upon the violation of the rights of property which has been thus invaded and disturbed. Foley v. Wyeth, 2 Allen, 131; Panton v. Holland, 17 Johns, 92; 2 Washb. Real Prop., supra. A.s its right of lateral support is incident only to the land itself, in its natural condition, and without the superadded weight of improvements, the damages recovered in an action for the simple withdrawal of such support are limited to the injury to the land itself. Thurston v. Hancock, 12 Mass. 221; Gilmore v. Driscol, 122 Mass. 199; Farrand v. Marshall, 19 Barb. 380; Cooley, Torts, p. 594. But it is well settled that the withdrawal of such lateral support may be done in such a manner as to create a liability beyond the injury to the land simply. The law requires of every man that he shall so use his own property as not unnecessarily to.injure that of his neighbor. If, therefore, in making the excavation which he has a right to make, he do it in a wrongful, negligent, or reckless manner, he will be liable for the full consequences of his acts, —not only for injury to the soil itself, but to the improvements or superstructures thereon. Quincy v. Jones, 76 Ill. 241; Foley
The negligence of appellant in making such excavation being established, the court adopted and gave the jury the proper rule as to damages, towit, the diminution of value of the property injured as the direct and legitimate result of such negligence and want of care. Where the excavation is made carefully, and with proper regard for the rights of the adjoining owner, and injury ensues, the measure of damages is the diminution of the value of the land in consequence of such excavation, not the cost of restoring the lot to its former condition. 3 Suth. Dam. 373; McGuire v. Grant, 25 N. J. Law, 356; Gilmore v. Driscoll, 122 Mass. 199. And where, in consequence of the added element of negligence in making the excavation, the damages recoverable extend to buildings as well as soil, we think the rule of damages should be the same, to-wit, the diminished value of the property injured, and not the cost of repairing it. In this connection may be noticed appellant’s objection to the court’s charge to the jury, that, although they might find that appellant gave respondent timely notice of its intention to excavate, still respondent might recover if they found that appellant made the excavation in a negligent and careless manner. Section 2784, Comp. Laws, reads thus: ‘ ‘Each coterminous 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
Appellant further resists its liability on the ground that the excavation complained of as the cause of the injury was not done by it, but by an independent contractor, under an agreement to do the work carefully and skilfully, and who alone was responsible for injury resulting from doing it in a negligent and unskilfull manner. We have read the evidence in the case with considerable attention, and are satisfied that the negligence and want of care found by the jury was in allowing the water to flow from the streets and gutters into the cellar and into a trench for the footing course of appellant’s foundation wall, dug by appellant’s servants, and all this occurred, as we read the evidence, after the work of the contractor was completed, so that appellant, and not the contractor, would be responsible, and the legal question presented by appellant is not in the case.
The other ground upon which a new trial was claimed, was the misconduct of the jury in the method of arriving at their verdict. The affidavits of a number of the jurors who tried the case stated that, pursuant to an agreement made after retiring to consider ther verdict, they added together the different amounts which each juror thought plaintiff ought to recover,
Testing the errors assigned t ' sp ' f law, as we understand them, and as here ~, we find no error in the record, and the judgment ^ circuit court is affirmed.