Gilmore v. Driscoll.

GILMORE V DRISCOLL.

(122 Mass. 199.)

Support of soil - Damages.

One who digs a pit on land so that, by the operation of natural and ordinary causes, which he takes no precaution to guard against, the land of another falls into the pit, is liable to an action by the latter for the injury to his land in its natural condition, but not for injuries to buildings or improvements thereon, such as fences and shrubbery, without proof of actual negligence; the measure of damages is the actual loss of and injury to the soil; and it is immaterial that the defendant is not the owner of the land dug upon, but removes the soil there from for his own benefit by permission of the owner thereof.

TORT

NORT for injuries to the plaintiff's land by the excavation of adjoining land by the defendant.

The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, on an agreed statement of facts as follows:

"The plaintiff was owner of a parcel of land in a populous portion of that part of Boston, lately Roxbury, as described in her writ, bounded on the south-westerly side by the land of one Webb. On this land of the plaintiff, but immediately adjoining the division line, was a fence, and near to it a few currant bushes and certain modern structures. The two parcels in their natural condition made a knoll, the highest part of which was at or near the division line.

"Webb, the owner of the adjoining lot, under an agreement with one Gillighan, gave him permission to remove the soil of his land down to a grade of the street on its north-westerly side, on which both lots were located. Webb gave Gillighan the right to go up to, but not within two feet of the plaintiff's fence. Webb had no other connection with the acts complained of.

66

Gillighan for a consideration gave permission to the defendant to remove a portion of this said soil, and under that licens the defendant removed all the soil that was removed nearest to and along the line of the plaintiff's land, and the removal of which, it

Gilmore v. Driscoll.

was alleged, caused the damage complained of. Gillighan gave the license to the defendant under the same restrictions as to 'not within two feet of the plaintiff's fence,' as Webb had imposed upon him.

"The depth to which the grade of this adjoining land was lowered by the defendant against the plaintiff's lot was at its greatest measure some ten feet, and at its lowest, some five feet. The soil of the plaintiff's lot fell along the whole length of her line to the width of some two or three feet at the top, taking with it the fence and shrubbery upon it. The weight of the plaintiff's structures near the line did not contribute to the falling away of the soil. The defendant left a bank of earth on the Webb lot against the plaintiff's land along the whole line, but it was not in all parts two feet wide at the top. There was no falling away of the soil at the time the defendant ceased his work, which was in the fall of the year, about the 23d of October. The bank left by the defendant was rendered insufficient to hold the soil of the plaintiff in its natural condition by the effect of rains and frost. The bank began to give way under the effect of rains and frost at once, but the soil of the plaintiff was not actually disturbed till the month of March in the spring following the fall when the work of the defendant was ended.

"The damages occasioned to the plaintiff by loss of and injury to her soil alone, caused by the acts of the defendant, amount to ninety-five dollars. To put the plaintiff's land into its former condition, and so maintain it by means of a retaining wall (which I find to be the best method of accomplishing that result), would cost the sum of five hundred and seventy-five dollars; and to replace the fence and shrubs would cost the further sum of fortyfive dollars. The difference between the market value of the plaintiff's lot of land as affected by the act of the defendant, and what its market value would be had it not been deprived of its natural supports (without taking into account the unavoidable disadvantage to the plaintiff, which must have followed from the lawful cutting down of the adjoining lot, though her soil had not been disturbed thereby), would be the equivalent of and fully compensated by the cost of putting her land back into the same condition it was before, or the sum of the two amounts last named, namely, six hundred and twenty dollars."

VOL. XXIII.-40

Gilmore v. Driscoll.

Upon the foregoing facts, the court was to enter such judgment as it should deem proper.

P. E. Tucker, for plaintiff.

C. H. Drew, for defendant.

GRAY, C. J. The right of an owner of land to the support of the land adjoining is jure naturæ, like the right of a flowing stream. Every owner of land is entitled, as against his neighbor, to have the earth stand and the water flow in its natural condition. In the case of running water, the owner of each estate by which it flows has only the right to the use of the water for reasonable purposes, qualified by a like right in every other owner of land above or below him on the same stream. But in the case of land which is fixed in its place, each owner has the absolute right to have his land remain in its natural condition, unaffected by an act of his neighbor; and, if the neighbor digs upon or improves his own land so as to injure this right, may maintain an action against him, without proof of negligence.

But this right of property is only in the land in its natural condition, and the damages in such an action are limited to the injury to the land itself, and do not include any injury to buildings or improvements thereon. While cach owner may build upon and improve his own estate at his pleasure, provided he does not infringe upon the natural right of his neighbor, no one can by his own act enlarge the liability of his neighbor for an interference with his natural right. If a man is not content to enjoy his land in its natural condition, but wishes to build upon or improve it, he must either make an agreement with his neighbor, or dig his foundations so deep, or take such other precautions, as to insure the stability of his buildings or improvements, whatever excavations the neighbor may afterward make upon his own land in the exercise of his right.

In 2 Rol. Abr. 564, it is stated that in Wilde v. Minsterley, in 15 Car. I, it was decided in the King's Bench, after a verdict for the plaintiff, that "if A be seized in fee of copyhold land next adjoining to the land of B, and A erects a new house upon his copyhold land, and some part of the house is erected upon the confines of his land next adjoining to the land of B, and B afterward digs his

Gilmore v. Driscoll.

land so near to the foundation of A's house, but no part of A's and, that thereby the foundation of the house and the house itself fall into the pit, yet no action lies by A against B, because it was A's own fault that he built his house so near the land of B, for he by his act cannot hinder B from making the best use of his land that he can. But it seems that a man who has land next adjoining to my land cannot dig his land so near my land that thereby my land shall go into his pit; and, therefore, if the action had been brought for this, it would lie."

In the same court, in 15 Car. II, Justices TWISDEN and WINDHAM said that it had been adjudged that, "if I, being seized of land, lease forty foot thereof to A to build a house thereon, and other forty foot to B to build a house, and one of them builds a house, and then the other digs a cellar in his land, whereby the wall of the first house adjoining falls, no action lies for that, because each one may make the best advantage of his digging; "but it seemed to them that the law is otherwise if it was an ancient wall or house that falls by such digging." Palmer v. Fleshees, 1 Sid. 167. In another report the corresponding statement is, that "it was adjudged that two having ground adjoining, the one built de novo, and the other in his ground digged so near that the other fell, and no remedy, the house being new." Palmer v. Flessier, 1 Keb. 625. That adjudication is referred to in Siderfin as "7 Jac. in Pigott and Surie's Case," and in Keble as "7 Car." But Sury v. Pigot, decided in 1 Car. I, and fully reported in Popham, 166, was upon another point, and is so stated in Keble, ubi supra; and it would seem that the reference intended may have been to the case of Wilde v. Minsterley, above cited.

66

There are indeed two or three early cases, in which actions appear to have been sustained for undermining houses by digging on adjoining land. Slingsby v. Barnard, 14 Jac. I; 1 Rol. R. 430; Smith v. Martin, 23 Car. II; 2 Saund. 400; Barwell v. Kensey, 35 Car. II; 3 Lev. 171; s. c., 1 Mod. Entr. 195. But in Sngsby v. Barnard, and in Smith v. Martin, the objections made were not to the right to maintain the action, but only to particulars in the form of the declaration; and in Barwell v. Kensey the declaration, as construed by the majority of the court, alleged, not merely digging near the plaintiff's foundation, but digging that foundation itself.

In Tenant v. Goldwin, 2 Ld. Raym. 1089, 1094, Lord HOLT aud

Gilmore v. Driscoll.

Justice POWELL are reported to have "held that a man cannot build so near another man's house as to throw it down." But the only point adjudged was the same as in Ball v. Nye, 99 Mass. 582, that a man is bound, of common right, to keep a vault upon his own land in repair, so that the filth shall not flow upon his neighbor's land, "for he whose dirt it is must keep it that it may not trespass. s. C., 1 Salk. 360, 361; 6 Mod. 311; 1 Salk. 21; Holt,

And upon a comparison of the various reports it is evident that the digging so near another's wall as to weaken it was not spoken of as giving a right of action to the owner of the wall, but as limiting his liability for the escape of filth caused by the new digging.

The latest and most authoritative statement of the law of England upon this point before the American Revolution is that of Chief Baron CoмYNS, who, citing Rolle's Abridgment and Siderfin's Reports, ubi supra, says that an action upon the case lies for a nuisance, "if a man dig a pit in his land, so near that my land falls into the pit;" but does not lie, "if a man build an house, and make cellars upon his soil, whereby an house newly built in an adjoining soil falls down." Com. Dig., Action upon the Case for a Nuisance, A., C.

In Thurston v. Hancock, 12 Mass. 220, which was decided in 1815, and is the leading American case on this subject, the plaintiff, in 1802, bought a parcel of land upon Beacon Hill in Boston, bounded on the west by land of the town of Boston; and in 1804 built a brick dwelling-house thereon, with its rear two feet from this boundary, and its foundation fifteen feet below the ancient surface of the land. The defendants in 1811 took a deed of the adjoining land from the town, and began to dig and remove the earth therefrom, and, though notified by the plaintiff that his house was endangered, continued to do so to the depth of forty-five feet, and within six feet of the rear of the plaintiff's house, and thereby caused part of the earth on the surface of the plaintiff's land to fall away and slide upon the defendant's land, and rendered the foundations of the plaintiff's house insecure, and the occupation thereof dangerous, so that he was obliged to abandon it.

The court, after advisement, and upon a review of the earlier English authorities, held that the plaintiff could recover for the loss of or injury to the soil merely, and not for the damage to the house; and Chief Justice PARKER, in delivering judgment, said: