People ex rel. Barlow v. Canal Board

This is a common-law certiorari, brought to review the proceedings of the canal board in awarding the sum of $8,000 to the firm of Pratt & Co., of the city of Buffalo, in pursuance of an act of the legislature, entitled “ An act for the relief of Pratt & Co.” Laws of 1872, chap. 786.

It is a familiar principle, well settled by authority, that the proprietor of land has a natural right to the lateral support of the soil of his premises, by the adjoining lands so long as he allows them to remain in a state of nature. But such right does not extend to cases where the owner, by building or otherwise, has increased the lateral pressure upon the adjoining soil. Lasalla v. Holbrook, 4 Paige, 169; Farrand v. Marshall, 19 Barb. 380 ; S. C., 21 Barb. 409 . And where the owner, in the exercise of ordinary care and skill, in making an excavation for the improvement of his own lot, had dug so near the foundation of the plaintiff’s house as to cause it to crack and settle, it was held he was not liable for the injury. Panton v. Holland, 17 Johns. 92 ; Thurston v. Hancock, 12 Mass. 223 . This principle is indorsed in Lasalla v. Holbrook, supra, and is stated in the marginal note with the addition and proviso: “ if such excavation would not have injured the adjacent lot in its natural state.” Although this language is not employed by the chancellor in his opinion, yet the principle laid down, and the authorities cited, appear to uphold it. Hence, it was held in Thurston v. Hancock, 12 Mass. 223 , that the defendant was not liable for an excavation which placed the plaintiff’s house in a dangerous position, but the plaintiff was entitled to recover for the damage, if any, which had been occasioned by the loss of his soil, in consequence of such excavation. There appears to be no sufficient reason why a person erecting buildings upon his own land, by means thereof should be subjected to any greater loss or injury than what the buildings actually create. In Farrand v. Marshall, 19 Barb. 386 , some

It is, therefore, apparent that the observations made were intended to apply to cases where the buildings created a pressure and thereby contributed to the injury. In support of the doctrine laid down are the remarks of Gardner, J., in Hay v. Cohoes Company, 2 N. Y. 162 , where he says, “no degree of care in the excavation by the pit owner would, I apprehend, justify the transfer of a portion of another man’s land'to. his own.” See, also, Washb. on Easements, 431, 432.

It follows, necessarily, from the rule laid down in Lasalla v. Holbrook, supra, that if the weight of the building does not in any degree affect the land upon which it is built, by creating a pressure outwards, upon the soil beneath, and the excavation would have injured the lot in its natural state, then the party making the excavation is liable for the injury to the soil. In the case before us the evidence shows that the excavation let out the quicksand from beneath the foundation, thus undermining the wall and causing the lot to cave in and let down the building, and the proof was sufficient to justify a conclusion that the same result would have followed if no building bad been erected upon the lot.

If the principle stated is sound then the canal commissioners were authorized to make an award of damages under the act in question, to the extent of the injury done to the soil; but not for the buildings on the land. It does not appear distinctly what portion of the expenses incurred were for the restoration of the building or what portion for the lot alone, and it is therefore difficult to say whether too. large an amount of damages was awarded. If this court can properly review the evidence taken before them, I am inclined to

There is also another ground upon which I think the award of the commissioners can be upheld, and that is, that there is some evidence that ordinary care and skill were not used in making the excavation. The proof shows that the wall of Pratt & Co. was protected by substantial sheet piling; that an excavation was made from two to two and one-half feet deeper than the piling, and from five to five and one-Jialf feet lower than the wall and the earth removed for the distance of about seventy-five feet along the piling with no wall built or earth filled in to sustain it, and left over night in that condition until it fell. An excavation of the soil and the putting up of the wall in short sections might have obviated the difficulty and prevented the accident, and as the case stood, there was evidence from which it might fairly be inferred that the work was negligently and carelessly performed so as to create a liability.

I am not prepared to assent to the position taken by the relator that the right existed to excavate without using reasonable care and skill. At least notice should have been given, to enable Pratt & Co., who were the persons to be affected, to provide against such a catastrophe. Some of the authorities cited sustain the doctrine. In Panton v. Holland, a new trial was granted upon the ground that the question of negligence, in not taking all reasonable care, was not submitted to the jury. The same principle is distinctly recognized in Lasalla v. Holbrook, and it is there said : “ From the recent English decisions it appears that the party who is about to endanger the building of his neighbor by a reasonable improvement on his own land, is bound to give the owner of the adjacent lot proper notice of the intended improvement, and to use ordinary skill in conducting the same.” In Radcliff v. Mayor of Brooklyn, 4 N. Y. 200 , Bronson, Ch. J., expressly excepts from the general rule that a man is not answerable for the consequences of enjoying his own property, cases where the injury has resulted “from the want of proper care or skill on his part.” Upon principle there appears to be no ground for holding, even if a man has an absolute right to dig on his own land to any extent, that he is not answerable for want of care and skill or for negligence. See, also, Washburne on Easements, 436, § 18; 439, § 13; 441, § 15; where reference is made to the

In Peyton v. Mayor of London, etc., 9 B. & C. 725, which is relied upon by-the relator, the action was brought to recover damages against the owner of an adjoining house for pulling it down and causing injury thereby, and it was held: 1st. That upon the declaration, the plaintiff could not recover on the ground of the defendant’s not giving notice that he was about to pull down the house, as that was not alleged as a cause of injury. 2d. That as the plaintiff had not alleged or proved any right to have his house supported by the defendant’s he was to protect himself by shoring, and could not complain that the defendant had neglected to do it. The proof showed that the defective state of both houses had been known to both parties, and that the, operation of taking down was carried on from day to day, and must have been known and seen by the tenant and occupier of the plaintiff’s house.

The facts presented are entirely different from the case at bar, where the claimants had no notice whatever, and no opportunity was offered to them to protect themselves against injury. ,

Charles v. Ranken, 22 Mo. 574 , holds, that the law does not exact of the owner of a building adjoining another, in taking down an old and in laying a new foundation, the same forbearance, care and expense for the security of his neighbor’s property, that he would have found it for his interest to have taken for his own. No question of a want of notice appears to have been made in this case, and if it can be regarded as holding that the person removing the building, and causing the injury, is not liable for negligence, it is adverse to the general current of authority.

As the decision of the commissioners can be upheld upon the grounds stated, I have not deemed-it necessary to discuss the question which was elaborately presented on the argument, as to what questions can be raised in a common-law certiorari, as well as some other points made. The proceedings of the commissioners must be affirmed.

Proceedings affirmed.