or quasi-public institutions are not responsible in damages for thus removing lateral support because such injury is only consequential to an act, which in itself is perfectly legal, such as grading a street, or excavating for a railway track. In O'Connor v. Pittsburgh, 10 the court said: "The constitutional provision for the case of private property taken for public use, extends not to the case of property injured or destroyed; but it does not follow that the omission may not be supplied by ordinary legislation. No property was taken in this instance; but the cutting down of the street consequent on the reduction of its grade, left the building useless, and the ground on which it stood worth no more than the expense of sinking the surface of it to the common level. The loss to the congregation is a total one, while the gain to holders of property in the neighborhood is immense. The legislature that incorporated the city never dreamt that it was laying the foundation of such injustice; but, as the charter stands, it is unavoidable." But it will be observed that the court is here referring only to property taken for a public purpose; so that the rule stated could not apply to lateral support taken by a private person for private use. 11 In an extended opinion in Fellowes v. City of New Haven,11 it is held that a municipality is not liable for damages and hence may not be enjoined from grading the street to the property line of an adjacent landowner and thus taking away his lateral support. 10 18 Pa. St. 187. 11 44 Conn. 240. Conceding that such owner's property is injured the court holds the injury to result from the exercise by the municipality of a public duty and that the damage arising therefrom may not be recovered against the city, but must be borne by the land owner.12 It is held that such taking is not unlawful or wrongful; and since it is done, theoretically at least, for public benefit, private interests must yield to such public accommodation, and the landowner cannot recover damages for such consequential injuries. But courts so holding have lost sight of the important point which we think thoroughly established, namely, that lateral support is property belonging to the landowner and that therefore its removal does not fall within what is ordinarily denominated consequential damages from such improvements. The rule, therefore, refusing damages for inconveniences, or for a depreciation in value of adjacent lands where the grades of streets are changed, or where they are used by quasi-public institutions without imposing additional burdens on the land, has here no application. A rule preventing the landowner from recovering for such consequential damages may well be established, though even here the decisions are not uniform. It is frequently pointed out by various courts in the discussion of this question that the decisions in Ohio are most liberal toward landowners in this regard, and have given damages for consequential injuries where under sim 12 Austin v. Detroit Y. & A. A. Ry., 134 Mich. 149; Talcott Bros. v. Des Moines, 134 Ia. 113, 109 N. W. 311; Rome v. Omberg, 28 Ga. 46; Callender v. Marsh, 1 Pick. 418; Pontiac v. Carter, 32 Mich. 164. ilar conditions they would have been denied in other jurisdictions.13 80. Compensation to owner is required.-The weight of authority is against the rule stated in some of the foregoing decisions which permits public and quasi-public corporations to take away lateral support without compensation, when authorized by the legislature to use or grade the streets of a municipality. It is difficult from the owner's standpoint to see why any person or institution should be given a right to take from him his property without compensation. Even though it be taken for the public good, the public which receives the benefit should pay for what he is required to yield to it. And so the courts generally hold. In Transportation Co. v. Chicago,1 the court after stating that while in such a case as there presented, the landowner could not recover for consequential damages, he was not deprived of recovering damages for loss of lateral support, whoever might take it. "The general rule," it was said, "may be admitted that every landowner has a right to have his land preserved unbroken, and that an adjoining owner excavating on his own land, is subject to this restriction, that he must not remove the earth so near to the land of his neighbor that his neighbor's soil will crumble away under its own weight and fall upon his land." In Damkoehler v. Milwaukee,15 the court held the 13 McComb v. Akron, 15 O. 474; Akron v. McComb, 18 O. 229; Crawford v. Delaware, 7 O. St. 459. 14 99 U. S. 635. 15 124 Wis. 144. city responsible for removing lateral support from premises adjoining a highway, while making necessary improvements of the street. This was held to be a taking of property for a public use.16 In Keating v. Cincinnati," the court said: "Private property is entitled to the same protection against all classes of corporations as against natural persons, subject to the right of appropriating such property to public use upon the terms of making full compensation." The city was under this rule held responsible for taking away lateral support from private property adjacent to the street while grading the street. 81. Rule when building on land.-The rule which permits plaintiff to recover damages against a municipality or a quasi-public corporation for taking away lateral support from his land applies to land in its natural state unincumbered by buildings or other structures. If it can be shown that the land would not have fallen except for the additional weight thereon of buildings, the general rule is that plaintiff cannot recover for the loss or injury to the buildings, if defendant has not been negligent in making his excavations. 18 The landowner's rights to light and air from adjacent streets are of a kin 16 The same rule was adopted in Elgin v. Eaton, 83 Ill. 535; in Henderson v. McClain, 102 Ky. 402; in Hartshorn v. Worcester County, 113 Mass. 111; in Cabot v. Kingman, 166 Mass. 403; in Nichols v. Duluth, 40 Minn. 389, 12 Am. St. Rep. 743; in Stearns v. Richmond, 88 Va. 992, 29 Am. St. Rep. 758; in Cincinnati v. Penny, 21 O. St. 499, 8 Am. Rep. 73, and in other numerous cases. 17 38 O. St. 141. 18 Quincy v. Jones, 76 Ill. 231, 20 Am. Rep. 243; Gilmore v. Driscoll, 122 Mass. 199, 23 Am. Rep. 321; Keating v. Cincinnati, 38 O. St. 141. 19 dred nature to his right to lateral support but the at is a owner has, to have his land in its natural state, sustained by the adjacent land. (2) That it is a right of property naturally and necessarily incident to the soil, held by the same title as the land, which can only be taken from the owner upon the same conditions and by the same processes as the land itself. (3) That those constitutional provisions which prohibit the taking of private property for public purposes except upon making full compensation therefor, apply to the right of lateral support and prevent its being taken for public purposes by municipalities or by quasi-public corporations having the power of eminent domain, unless full compensation for its value is made to the owner. (4) That a legislative act authorizing lateral support to be taken for a private purpose or to be taken without compensation should be held void because unconstitutional. 19 Adams v. Chicago, Burlington & Northern Ry. Co., 39 Minn. 286; Barnett v. Johnson, 15 N. J. Eq. 481; Dill v. Board of Education, 47 N. J. Eq. 421. |