Finegan v. Eckerson — 26 Misc. 574

Majority

p. 574

Julia A. Finegan, Plaintiff, v. J. Esler Eckerson, Indivdually and as Executor, Etc., et al., Defendants.

(Supreme Court, Orange Special Term,

March, 1899.)

Headnote

Beal property — Bight of abutting owner to lateral support of highway — Wrongdoer liable, although not negligent.

An abutting owner is entitled to the lateral support of the highway for her building as against a wrongdoer, and the latter will, in an action for an injunction to restrain further excavation, be compelled to restore the highway.

As any unlawful obstruction of or interference with a highway is per se unlawful, negligence in the excavating need not be shown.

Action for an injunction.

Irving Brown, for plaintiff.

R. E. & A. J. Prime (Ralph E. Prime, of counsel), for defendants.

The plaintiff is the vendee in possession of premises on the southwest corner of Eockland and Jefferson streets in the village of Haverstraw, Eockland county. The defendants

p. 575

are owners and tenants of the property adjoining and east of Rock-land street and north of Jefferson street for a considerable distance. The defendants’ property is used for brickyard purposes and was excavated by them shortly before the commencement of this action to a great depth, so that the soil of Rockland and 3 efferson streets, immediately adjacent to the plaintiff’s premises, fell in the excavation made by the defendants, and has been carried away to within a few feet of the plaintiff’s building. This action is brought for an injunction restraining further excavation and for a restoration of the streets.

The decision of the Appellate Division on the appeal from an order granting a temporary injunction, sustains the plaintiff’s right to the relief sought. Einegan v. Eekerson, 32 App. Div. 233 . The facts established a special injury, inasmuch as the abutting owner is entitled to access, and a partial destruction of the street deprives the owner of that right pro tanto. As a matter of fact access is limited to the use of the sidewalk in front of the premises, the rest of the street having been excavated away. It is evident that further excavation would endanger the plaintiff’s building, and although, as claimed by the defendants, the right to lateral support between adjoining owners does not include the right to the support of an artificial structure, that doctrine has no application to the case of a highway. Milburn v. Fowler, 27 Hun, 568 .

The plaintiff is entitled to the lateral support of the highway for her building as against a wrongdoer, and as any unlawful obstruction or interference with a highway is per se a nuisance, negligence in the digging need not be shown.

The plaintiff is entitled to an injunction and to the restoration of Rockland and Jefferson streets to the north line of Jefferson street, with costs.

Ordered accordingly.