30 Del. 586 | Del. Super. Ct. | 1920
The defense was: That the plaintiff had notice of the excavation, as he had seen, on several different occasions, earth being thrown out of Brodsky’s cellar. That the work was done in a workmanlike and careful manner. That the alleged injuries to plaintiff’s property were not caused by the digging under the cellar wall. That no cracks or settlement had occurred in Brodsky’s property as the result of the excavation.
Both plaintiff and defendant requested instructions to the jury as in Moore v. Anderson, 5 Boyce 479, 94 Atl. 771.
Special Prayers for Plaintiff.
The requirement of notice to an adjoining owner before making excavation as in this case is a reasonable precaution in a populous city, where buildings are necessarily contiguous to each other, and improvements made by one proprietor, however skillfully conducted, may be attended with accidental and disastrous
Where a right to lateral support for buildings has been acquired, it stands on the same footing as the right to support for land in its natural state, and one who, by excavation on his own land, removes such support to the injury of a building entitled thereto, is liable for such injury without reference to the question of negligence or want of skill. 1 C. J. 1216, § 39.
In the case of a building, or structure, which has been erected for more than twenty years, the owner has, in contemplation of law, the right of security against excavation upon the adjoining land after that period, the same as if one person had been, originally, the owner of both parcels, and granted one with the express right of erecting buildings upon it or near the line as the grantee might choose, and that they should not be injured or affected by erections or excavations upon the other, and had granted that other, subject to the terms in the deed for the former. Stimmel v. Brown, 7 Houst. 223, 30 Atl. 996; O’Daniel v. Bakers' Union, 4 Houst. 488; Washburn, Easements (1873) *436 *437; Dalton v. Angus, L. R. 6 App. Cas. 740; Rogers v. Taylor, 2 Hurl. & N. 828; Hide v. Thornborough, 2 C. & K. 250; 1 R. C. L. 387, *22.
The measure of damages' is what it would have cost the plaintiff, at the time when the suit was brought, to restore his property to as good a condition, and as good a state of protection by lateral support, as it had before the excavation was made. Stimmel v. Brown, 7 Houst. 225, 30 Atl. 996.
Special Prayers for Defendants.
The owner of land adjoining land upon which there is a building or other structure may lawfully excavate on his own land and to the line of his land, although he injures such structure.
An actionable wrong consists, not in excavating one’s own land, but in allowing the lands of the other to fall in, and there must be some appreciable injury. 1 C. J. 1215; Schmoe v. Cotton, 167 Ind. 364-371, 79 N. E. 184; Kansas City, etc., R. Co. v. Schwake, 70 Kan. 141, 78 Pac. 431, 68 L. R. A. 673, 3 Ann. Cas. 118; Schultz v. Bower, 57 Minn. 493, 59 N. W. 631, 47 Am. St. Rep. 630; Id., 64 Minn. 123, 66 N. W. 139; Williams v. Kenney, 14 Barb. (N. Y.) 629; Darley & Co. v. Mitchell, 11 App. Cas. (Eng.) 127; Backhouse v. Bonomi, 9 H. L. Cas. 503, 11 Reprint, 825.
The burden of proof is on the plaintiff, and in an action for injuries to his wall or building on account of an excavation, it is incumbent on him to show that the excavation caused the injury, and that the defendant and his employes were careless or unskillful in doing the work of excavating. 1 C. J. 1224.
The weight of authority in America is that the right of lateral support cannot be acquired by prescription. Gilmore v. Driscoll, 122 Mass. 199-207, 23 Am. Rep. 312.
charging the jury:
The plaintiff claims that in the early part of July, 1917, Brodsky, owner, and John Frank Owens, Jr., contractor and
It is not controverted that the plaintiff’s dwelling is a substantial brick house, erected more than thirty years prior to the time of said excavation, and that it was in an excellent state of repair before and tip to the time of the alleged injuries. The plaintiff claims damages by reason of the alleged negligence of the defendants to the extent of $600.
The defendants concede that the excavation complained of was made at or about the time claimed by the plaintiff, but they contend that the work of lowering the cellar, and of protecting the cellar wall between the two properties by stone and concrete, was done in a reasonably careful, and skillful manner, and that the plaintiff has not suffered any injury or damage because of the excavation.
The allegations of negligence are, in substance, that the defendants (1) carelessly and negligently and without regard to the rights of the plaintiff did dig down and under the foundations of plaintiff’s property, without notice or knowledge of the plaintiff of such digging, and by means of said negligence and carelessness of the defendants the walls of the plaintiff’s dwelling settled and plaintiff’s property was damaged thereby; (2) that in digging out the earth and removing the same near to and under the cellar or foundation wall, it was the duty of the defendants to use ordinary care and skill in the excavation and removing of earth to prevent injury to the dwelling house of plaintiff; but that the same was negligently and carelessly done, so as to cause injury to plaintiff’s dwelling; (3) the third and fourth counts are similar and charge, in substance that the defendants negligently and carelessly dug down near to and under said cellar wall without first having given due and proper notice, and thereby said plaintiff had no notice
It is the opinion of the court that the principles of law announced in the case of Moore v. Anderson, 5 Boyce 477, 480, 94 Atl. 771, are applicable to the facts of this case, and for the most part the court will charge you in the language of that case.
If you should be satisfied that the plaintiff was notified of the intended excavating, or that he, in fact, had knowledge thereof in time and at a time to allow him to take the necessary precautions to prevent injury to his building, and he did not take any such precautions, nevertheless, if you further believe that the defendants, after giving such notice, or after such knowledge, did not do their work in an ordinarily careful and skillful manner, under all the conditions and circumstances of this case, and thereby caused the injuries to the building complained of, plaintiff would be entitled to recover.
If you should be satisfied from the evidence that the injuries to the building complained of were not caused by said excavation, but by some other means, then your verdict should be for the defendants.
Your verdict should be for that party in whose favor is the preponderance or greater weight of the evidence.
Verdict for plaintiff.