Farrand vs. Marshall, 19 Barb. 380

Harris, J. It seems scarcely credible that the question how far the owner of ground adjacent to land owned by another, may remove the earth, and thus withdraw the natural support of his neighbor’s soil, without being liable for the injury, should have remained until this day unsettled. And yet, I believe it is so. Opinions have not unfrequently been expressed on the subject, and that too by eminent jurists ; but, so far as I know, these opinions have been obiter. I have not met with a single case, where this was the precise point in judgment.

The earliest writer who has mentioned the subject, and to whom all subsequent writers and judges, who have had occasion to speak of it, have referred, is Rolle. It had been held that an action would not lie against a man for digging in his own land, although he thereby undermines and destroys the house of his neighbor; for the reason that it was his own fault that he had built his house so near the confines of his own land. In noticing this decision, Rolle adds, in a semble, that “ a man who has land next adjoining my land, cannot dig his land so near mine, that thereby my land shall go into his pit.” (2 Roll.

Ab. Trespass, I, p, l. 1.) Although this opinion is cautiously expressed, it has generally been cited with approbation: (Lasola v. Holbrook, 4 Paige, 169. Hay v. The Cohoes Company, 2 Comstock, 159. Wyatt v. Harrison, 3 Barn. & Ad. 871.) In the latter case, the distinction taken by Rolle is thus stated by Lord Tenterden, Ch. J. “ It may be true that if my land adjoins that of another, and I have not by building increased the weight' upon my soil, and my neighbor digs in his land so °as to occasion mine to fall in, he may be liable to an action.

JBut, if I have laid an additional weight upon my land, it does not follow that he is to be deprived of the right of digging his own ground, because mine will then become incapable of' supporting the artificial weight which I have laid upon it.” In the late case of Humphries v. Brogden, (1 Law & Eq. Rep. 241,) Lord Campbell, Ch. J., in referring to the doctrine of Rolle, says: It stands on natural justice, and is essential to the protection and enjoyment of property in the soil.

Although it places a restraint on what a man may do with his own property, it is in accordance with the principle sic utere tua, ut alienum non loadas." And again he says : “ The right to lateral support from the adjoining soil is not, like the support of one building upon another, supposed to be gained by grant, but is a right of property passing with the soil.” On the other hand, in Radcliff’s Executors v. The Mayor &c. of Brooklyn, Bronson, J. dissents from the doctrine of Rolle.

He insists that the law gives every man such a title to his own land, that he may use it for all the purposes to which such land is usually applied, without being answerable for the consequences. (4 Comstock, 202.) But this case, no more than either of the others to which I have referred, required any judgment upon the question.

The learned judge himself says, in referring to the case then before the court: “ It seems to fall within the principle that a man may" enjoy his land in the way <|Such property is usually enjoyed, without being answerable for I the indirect or consequential damages which maybe sustained ! by an adjoining landowner.

But if that be a doubtful position, there is a class of cases directly on the point in judgment.” He then proceeds to show that a municipal corporation acting under an authority conferred by the legislature to grade, level and improve streets and highways, if they exercise proper care and skill, are not answerable for the consequential damages which may be sustained by those who own lands bounded by the street or highway. This is the only point settled by the judgment in Radcliff’s Executors v. The Mayor &c. of Brooklyn.

I was a member of the court at the time, and concurred in the judgment, but I certainly did not suppose myself committed to the views of the distinguished judge who pronounced the judgment of the court upon the doctrine now in question. I presume no other member of the court, not even the learned judge himself did. Again; assuming that the views expressed in the case last noticed are to be regarded as controlling, I am not prepared • to say they are applicable to the case in hand. It will be observed that the opinion is expressed with characteristic caution.

The learned judge had enumerated a variety of cases which he regarded as exceptions to the general rule, that a man may do what he will with his own property.. He had noticed other cases where the owner of land had been held to be justifiable, though he had used his land in such a manner as to result in injury to an adjacent owner.

Then, when he comes to notice the distinction of Rolle, he questions its soundness, and says he thinks a man may lawfully use his own land “ for all the purposes to which such lands are usually applied.” And again, he says the case then under consideration seems to fall within the principle, that “ a man may enjoy his land in the way such property is usually enjoyed.” Can it be said that the excavation of a city lot to the depth of 50 or 60 feet, and a removal of ■ the earth for the purpose of making it into brick, is within the rule as thus qualified and restricted ?

Is the land used for a purpose to which such land is “ usually applied ?” Does the owner enjoy his land in the way such property is “ usually enjoyed ?” It is apparent from the illustrations put by the learned judge, that he contemplated no such use of the land, when he expressed the opinion upon which the defendant now relies. The guarded manner in which he has uttered his views, shows, I think, that that judge himself would not have been willing to carry his doctrine so far as to justify this defendant in the use he proposes to make of his land.

Gan it be, that the law will so far limit a man in the mode in which he shall enjoy his land, as fe not to allow him to do any thing which shall create a nuisance upon it, and yet will allow him to do

an act which shall utterly destroy his neighbor’s land 7 I think not. Every man has a right to the undisturbed possession of his own land. But no man has a right to the unrestricted enjoyment of that possession. He may not so use it as to make that use destructive of his neighbor’s rights. The neighbor has the same right to the undisturbed possession of his own land that he himself claims. He must therefore use his land in subordination to such right. “ It is better,” says Gardiner, J. in Hay v.

The Cohoes Company, above cited, “ that one man should surrender a particular use of his land, than that another should be deprived of the beneficial use of his property altogether.” The ownership of land over which a stream of water is accustomed to flow, is as absolute as that of any other land. Ho man has a right to disturb the owner in its possession, and yet, that land is charged with the servitude of conveying the stream to the next owner. The owner of such land, however absolute his title, must use it subject to this charge.

He may not lawfully remove such land when its effect would be to divert or diminish the flow upon his neighbor’s land. The rule of law, in such a case, is, that every man has the right to the advantage of a flow of water on his own land without diminution or alteration. (Arnold v. Foot, 12 Wend. 330. Van Hoesen v. Coventry, 10 Barb. 518.) Upon the same principle, I think, the right to lateral support must be regarded as an incident to the land.

It is a right of prop-erty “ necessarily and naturally attached to the soil.” It has been well said that “ the negation of this principle would be incompatible with the very security for property, as it is obvious that if the neighboring owners might excavate their soil on every side up to the boundary line, to an indefinite depth, land thus deprived of support on all sides could not stand by its own coherence alone.” (Gale & Whatley on Easements, 216.) The civillaw, recognizing the doctrine that the owner of land has a right to support from adjoining soil, has fixed a rule for the purpose of protecting this right.

It declares that “ if a man dig a sepulchre, or a ditch, he shall leave between it and his neighbor’s land, a space equal to its depth, and if he dig a well, he shall leave the space of a fathom and a French writer, referring to a similar provision in the code of France, says, “ by a parity of reasoning, the owner of land, who is desirous of quarrying on his own property for stone or sand, or similar materials, must not open the earth at the extreme point which separates his land from that of his neighbor, and continue to excavate perpendicularly, because his neighbor’s land thus deprived of support, would be in danger of falling in.” (Pardessus, Traite des Servitudes, cited in the Treatise above mentioned.) But this doctrine has always been strictly confined to those cases in which the owner of land has not, by building or otherwise, increased the lateral pressure upon the adjoining soil.

Every attempt to extend it beyond such cases has proved unsuccessful. When the party complaining of an injury has himself erected buildings upon the margin of his own land, he has been regarded as himself at fault, and therefore not entitled to recover, upon the familiar doctrine that he who complains of the use which another makes of his own property, must himself be free from fault. “ A man who himself builds a house adjoining his neighbor’s land,” says Parker, Ch. J. in Thurston v. Hancock, 12 Mass.

Rep. 220,) “ ought to foresee the probable use by his neighbor of the adjoining land, and, by convention or by a different arrangement of his house, secure himself against future interruption and inconvenience.” Referring to the doctrine of Rolle, he says, “ we have not been able to discover that the doctrine has ever been overruled, nor to discover any good reason why it should be.” The case itself was probably decided erroneously. Under the circumstances as they appeared in evidence, I do not think the plaintiff was chargeable with any fault or negligence.

He had taken the precaution to sink the foundation of his house fifteen feet below the natural'surface. The defendant had dug and removed the soil upon his adjoining lot to the depth of forty-five feet. The result was, that the plaintiff was obliged to take down his house to save the materials. It seems to me that the action ought to have been sustained. Ho fault or negligence was imputable to the plaintiff. Every reasonable precaution had been observed. On the contrary, the defendant was not using his land for any ordinary purpose.

The plaintiff had sufficiently guarded himself against any ordinary use of the adjacent land. This was all that could be required of him. Having done this, and the defendant, by digging and removing his soil to ,a very unusual and extraordinary depth, having destroyed his house, I think he was entitled to compensation. But, however this may be, the doctrine of the case, so far as it relates to the question now under consideration, is in favor of the rule already asserted.

In the case now in hand, it is not pretended that the plaintiff has by any artificial means increased the lateral pressure of his land upon the adjoining soil. Ho greater support is ; now required than when the land first came into existence. Under such circumstances, I think the defendant had no right to withdraw that support, and thus allow the plaintiff’s land to fall. The defendant being engaged in this unlawful act, the injunction was properly allowed. But it may be that, in its terms, the injunction is too broad. Whether it is so or not, I am unable to say.

It restrains the defendant from digging «fee. within certain limits. It may be that these limits embrace more soil than is necessary for the support of the plaintiff’s land. I think the injunction should be so modified as only to restrain the defendant from excavating or removing any soil from any land adjoining the plaintiff’s premises, which shall cause the plaintiff’s land, by reason of the withdrawal of its lateral support, to fall away or subside. [Albany Special Teem, July 26, 1853.

Harris, Justice.] The defendant will then be at liberty to excavate as he pleases, at the peril, nevertheless, of being convicted of a violation of the injunction, in case his excavation should result in injury to the plaintiff’s land. The costs of the motion should abide the event of the suit. Ordered accordingly.