that one may on his own land dig so near that of his neighbor as to cause its collapse without being responsible for the damage thus caused." In Ohio a statute has been enacted 91 which provides that a lot owner may excavate his own lot to a depth of nine feet below the established grade of the street on which the lot abuts without incurring liabilities imposed by other sections of the statute; and it has been held by a lower court that no liability whatever would be incurred thereby."2 The court said: "The conclusion must be that the common law doctrine of lateral support no longer obtains in Ohio, and that in any city or village the owner or possessor of a lot may, with impunity in the absence of negligence, and upon giving the proper notice, grade the surface of his lot to make it conform to the established grade of the street." Notwithstanding, it is submitted that this conclusion is radically wrong.

76. Lateral support a property right.-But the Supreme Court of Ohio had previously held 93 that the right of lateral support is a property right which may not be invaded or injured by anyone without incurring the obligation to repair the injury or respond in damages therefor. It was clearly held to be the private property of the landowner which could not be taken even for a public purpose without making to the owner full compensation for its use. It is not simply an incidental injury to property. It is a taking of property itself and falls therefore

90 Radcliff's Executors v. The Mayor of Brooklyn, 4 N. Y. 195. 91 § 3783 General Code.

92 Hall v. Kleeman, 4 O. N. P. 201 (O. S.).

93 Keating v. Cincinnati, 38 O. St. 141.

within the prohibition of the Constitution, providing that private property shall ever be held inviolate.

In Foote v. Cincinnati,94 it was held that a statute which provided for the appropriation of private property without also requiring compensation was unconstitutional and void. The courts have repeatedly emphasized the rule that private property can not be taken, even for a public purpose, without making just compensation to the owner, and they have as frequently asserted that a law which attempts this is a nullity. In a later lower court decision,95 the question of lateral support and the rights therein of adjacent landowners, both at common law and under the Ohio statute, was again discussed. The court held that the statute above referred to did not abrogate the common law rule relating to lateral support in Ohio; that the right to lateral support is not a mere easement, but is part of the owner's property in the land and that if by the statute an attempt is made to deprive him of this property right the statute is in conflict with § 19, Article I of the Ohio Constitution. 96 In Joyce v. Barrow, the court said: "The right of lateral support is held to be not a mere easement but part of the owner's property in land. It is regarded as a right of property which necessarily and naturally attaches to the soil and passes with it." Lord Selborne, in Dalton v. Angus,97 said "Lateral support is a right by law; a right of the owner to the enjoyment of his own property as dis

94 11 O. 408.

95 Beldon v. Franklin et al., 8 O. C. C. Rep. 159 (N. S.).

96 67 O. St. 264.

97 L. R. 6 App. C. 740, 791 (Eng.).

tinguished from an easement supposed to be gained by grant; a right for injury to which an adjoining proprietor is responsible on the principle, Sic utere tuo ut alienum non lædas."

77. Same subject-Rule stated. The authorities sustaining this proposition are abundant and practically unanimous.98 Justice Green, who examined the question very thoroughly, as shown by his opinion in McGuire v. Grant, cited above, there asserted that the only judicial opinion he could find in conflict with this rule was the case of Radcliff's Ex'rs v. Mayor of Brooklyn," and as will be seen by an examination of the later New York case cited, the rule there laid down is no longer the law in that state. So now the rule in all the states seems to be that stated by the court in McGuire v. Grant, that there is incident to land in its natural condition a right to support from the adjoining land, and that if the land falls away in consequence of the removal of such support the owner is entitled to damages to the extent of the injury sustained. That it is, then, as much of a property right as any other portion of the land, seems to be well settled by courts both in this country and England.1 In Humphries v. Brogden, the court said: "This right to lateral support from adjoining soil is not like the support of one

2

98 Mears v. Dole, 135 Mass. 508; Hendricks v. Spring Valley Mining & Irr. Co., 58 Cal. 190; McMaugh v. Burke, 12 R. I. 499; McGuire v. Grant, 1 Dutcher's Rep. 356 (N. J.), LEADING ILLUSTRATIVE CASES; Farrand v. Marshall, 19 Barb. 380; Damkoehler v. Milwaukee, 124 Wis. 144; Schroeder v. City of Joliet, 189 Ill. 48; Lasala v. Holbrook, 4 Paige 169; Richardson v. Vermont Cent. R. Co., 25 Vt. 465.

99 4 N. Y. 195.

1 Rowbotham v. Wilson, 8 El. & Bl. 123 (Eng.).

212 Q. B. 739 (Ad. & El., N. S.) (Eng.).

building upon another supposed to be gained by grant, but it is a right of property passing with the soil." So the court held in Lasala v. Holbrook. In Farrand v. Marshall, the court said: "The right of lateral support must be regarded as an incident to the soil. It is a right of property necessarily and naturally attached to the soil.'

995

78. Lateral support taken by municipality.-In fact, there seems to be no division of opinion upon the proposition that private property may not be taken from its owner except for a public purpose, and after paying him due compensation for it. The division of judicial opinion is upon the question whether removing lateral support is actually taking property, or is only a damage to property without legal injury, not falling within constitutional prohibitions and therefore damnum absque injuria. In Talcott Bros. v. Des Moines, the court said: "The constitution must be construed to mean not only that the taking must be direct, but it must amount to an actual invasion and appropriation of the abutting property, or of some part thereof, in such manner as to deprive the owner of the use thereof." And although lateral support was here taken and plaintiff's property was thereby damaged, the court held the municipality not liable."

On the question whether a municipality has a right

34 Paige 169.

4 19 Barb. 380.

5 Gilmore v. Driscoll, 122 Mass. 199; McGuire v. Grant, 1 Dutcher's Rep. 356 (N. J.), LEADING ILLUSTRATIVE CASES; Dorrity v. Rapp, 72 N. Y. 307. 6 109 N. W. 311.

7 Hendershott v. Ottumwa, 46 Ia. 658, 26 Am. Rep. 182; Meares v. Wilmington, 31 N. C. (9 Ire. L.) 73, 49 Am. Dec. 412.

in grading streets to take away this lateral support, without responsibility to the owner, the authorities are in conflict. The courts holding municipalities not liable in the exercise of care and skill in taking away lateral support of land adjacent to the street, go upon the theory that a public body acting within its province in performing work for the benefit of the general public, that is, when building streets and public highways, should not be held responsible for consequential damages in the performance of such duties, and that the injury to adjacent land in being thus deprived of lateral support results only in consequential damages.

8

79. Is damage only consequential? It is held that the constitutional provisions in favor of parties whose property is taken for public use apply here just as in other remote consequences which result from grading streets; and although it may be seen that the property is injured by the acts of the municipality the rule of damnum absque injuria applies." The courts so holding go upon the theory that taking away lateral support for a public purpose without compensation is not prohibited by those provisions in the state and federal constitutions requiring compensation to the owner for property taken, because the physical property itself is not taken but only injured.

They hold, therefore, that municipalities

8 Transportation Co. v. Chicago, 99 U. S. 635, 641; Smith v. Corp. of Washington, 20 Howard 135; Callender v. Marsh, 1 Pick. 418; Pontiac v. Carter, 32 Mich. 164; O'Connor v. Pittsburgh, 18 Pa. St. 187; Rome v. Omberg, 28 Ga. 46.

Fellowes v. New Haven, 44 Conn. 240; Talcott Bros. v. Des Moines, 134 Ia. 113, 109 N. W. 311, 12 L. R. A. (N. S.) 696; Austin v. Detroit Y. and A. A. Ry., 134 Mich. 149.