McRae, John J.

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Lateral Support: Rights and duties of, to Adjoining Landowners

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Marquette Law ReviewVolume 13Issue 4 June 1929 Article 12Lateral Support: Rights and duties of, to AdjoiningLandownersJohn J. McRaeFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationJohn J. McRae, Lateral Support: Rights and duties of, to Adjoining Landowners, 13 Marq. L. Rev. 249 (1929).Available at: http://scholarship.law.marquette.edu/mulr/vol13/iss4/12NOTES AND COMMENTIn Land, Log, and Lumber Co. vs. McIntyre, IoO Wis. 245; 75 N.W.964, 69 Am. St. Rep. 915, this above distinction is brought out. There,a member of the county board received money from the county onsuch an illegal contract and the county not being in pari delicto wasallowed to recover the money so paid in a taxpayer's action. In Laurovs. Pacific Mutual Life Insurance Company 131 Wis. 555; III N.W.66o, Justice Timlin presents many cases illustrating the general princi-ple applicable in such cases. He there quotes with approval from Harrisvs. Runnels, 12 How. 72, "It must be obvious from such diversitiesof legislation, that Statutes forbidding or enjoining things to be done,with penalties accordingly, should always be fully examined beforecourts should refuse to give aid to enforce contracts which are saidto be in contravention of them."The late Chief Justice Vinje said -that the principle running throughthe cases is this: "Not all contracts forbidden by statute are void."The entire subject is admirably discussed, and numerous cases citedwhich are to the point in a note at Page 618, 12 L.R.A. (NS). Theprinciple to be applied, which would give relief to the blameless party,and the innocent victim, seems to be: Where the contract is not ex-pressly prohibited by statute, where the contract is not Mallm per se,or where the parties are not in pari delicto, courts will look to thepurpose and intent of the statute and give it effect accordingly.STANLEY D. CELICHOWSKILateral Support; Rights and Duties of, to Adjoining LandownersThe subject of lateral support touching on the rights and duties ofproperty owners to the same is of utmost importance to the practicinglawyer of today. We are living in an age of concentration of forceswhich has resulted in the upbuilding of large cities. The growth ofcities has greatly increased the value of property in certain districts.Likewise the growth of cities has made for the concentration of forcesin particular districts for commercial purposes. The increase in valuetogether with the desirability of concentration has led to the utiliza-tion of every foot of land by property owners. The above two forceshave likewise resulted in the placing of greater burdens on the landthrough the building of higher buildings. Years ago when a manbuilt on his property he erected his building within his lot so that thesupport from his own land was enough to protect his structure in casehis neighbor wished to excavate and build on his land. The immensestructures which are built today, usually extend to the edge of thelot line. When the adjoining owner wishes to construct a buildingon his lot, there is danger of the first building being damaged if somemeans of support is not given during the time the excavation is beingMARQUETTE LAW REVIEWmade when the natural support which the adjoining lot gives is takenaway. For the above reasons, the question of the rights and dutiesof adjoining landowners with regard to lateral support has become artimportant phase in the law of real property. Due to its growing im-portance, a brief review of the law on the subject is here given so thatthe reader -may have a basis of research should he wish to delve deeperinto the subject.The underlying principle governing the rights and the duties of ad-joining property owners to lateral support is of itself simple. Grant-ing his land is in its natural condition (no added burden thereon), aproperty owner has the absolute right to the lateral support of hisneighbor's soil. Conversely, a property owner has the duty of furnish-ing the lateral support which his land gives when left in its naturalcondition. Eschweiler, J. in Hickman v. Wallauer,1 ably states the lawin these words: "As incident to the plaintiff's ownership of his lot,he had the absolute right, so far as the land was in its natural condi-tion, to lateral support from the defendant's lot." As an illustration ofthis basic principle let us suppose two adjoining lot owners, A. and B.A. has a right to excavate on his lot to any depth providing he furnishesB. with the same lateral support which his land furnished before hestarted his improvements. For this duty which A., the party changingthe nature of his land, owes to B., the adjoining property owner, thereis of course the corresponding right of B. to have the lateral supportwhich A.'s land gave when in its natural condition. Added authorityfor this basic principle may be found in Christensen v. Mann,2 Wahlv. Kelley,3 Schaefer v. Hoffman.4 See also Cooley on Torts, 1236 to1238.Most of the litigation on this subject, however, rises where the landhas been improved by the construction of buildings and those buildingsare injured as a result of the loss of lateral support when the adjoininglandowner excavates on his propert3r preparatory to construction there-on. We have advanced the principle in the beginning of this articlethat the property owner has the right to the lateral support of his neigh-bor's land, which right is limited to the support necessary to the landin its natural condition. Where a person adds weight to the soil bythe creation of a building, the person thus creating the burden has theduty of providing support for the same. "The principle establishedby the authorities is, that one landowner cannot, by altering the naturalcondition of his land, deprive the adjoining proprietor of the privilege1 169 Wis. 23.2187 Wis. 567.'94 Wis. 564.4 223 N.W. 847.NOTES AND COMMENTof using his own land as he might have done before; and consequently,that he cannot, by building a house near the margin of his land, preventhis neighbor from excavating his own soil, although it may endanger-the house." 5 Thus if A. erects a building on his lot and B. an adjoin-ing property owner wishes to build on his lot, A. has the duty of pro-tecting the building which he has erected. Of course B. must use or-dinary care in his work of excavation. Likewise B. must give A. noticeof his intention to excavate on his land, so that A. may protect hisbuilding. The law is -that if B. fails to give A. due notice of his in-tention to excavate, it becomes B.'s duty to protect the building on A.'slot.There are a few recent Wisconsin cases which treat the subject oflateral support at quite a length and which are illustrative of the cir-cumstances which gave rise to litigation on this subject. Hickmanv. Wellauer,8 is one of the leading cases on the subject. In this case,the defendant through a misunderstanding of a city ordinance, thoughtthat he was bound to support the building which was on the plain-tiff's land. The plaintiff was not notified of the defendant's intentionto build. The means of support adopted by the defendant proved in-adequate and as a result the plaintiff's building was damaged. Thecourt held that the plaintiff was not obliged -to support his buildingunless the defendant give him timely notice of his intention to exca-vate. No notice 'having been given, the duty of supporting the plain-tiff's building shifted from the plaintiff to the defendant so that thedefendant is liable for the damage done to the plaintiff's building.Another leading case on the subject is Christensen v. Mann.7 Thiscase concerned the construction of the Arcade building in Racine.Because of -the peculiar circumstances of the case, the owner of thebuilding did not have the duty of supporting the wall of his building.Here both owners claimed title to their land through a common gran-tor. The wall in question had been used as a party wall but the partyconstructing the Arcade elected to abandon the party wall which wasentirely on the property of the other owner. But the deed from theoriginal grantor provided that the party wall should be abandoned onlyby the consent of all the parties thereto. Consent to the abandonmentnot having been obtained from the owner of the building, the courtheld that the party wall had not been abandoned. While the partywall still existed, the owner of the buiding had the right of thelateral support which his neighbors' land gave to it. Right to lateralsupport of the land with a house on it is vested where the ownerbi R.C.L., 381.i69 Wis. i8.187 Wis. 567.MARQUETTE LAW REVIEWsells the house to one party and the land contiguous to the house toanother party. Durante v. Alba." The Alba case is cited with approvalin the Mann case, wherein it is pointed out that this right to lateral sup-port of the land and house would run with the land only so long as theoriginal house stood there.In Wahl v. Kelley,9 the plaintiff contended that as a result of thedefendant excavating on his property, large fissures had developed onthe plaintiff's property. As a result of this, the plaintiff's cellar hadbeen damaged by water seeping through. The court held that the plain-tiff's complaint stated facts sufficient to constitute a cause of action.The most recent adjudication of the Wisconsin Court on this subjectis Schaefer v. Hoffman.'0 In this last case, the adjoining landownergave the owner of the building notice of his intention to excavate.The owner of the building had hired a contractor to brace up his gar-age by artificial support during the time of the excavation. The con-tractor was out on a fishing party at the time when his services wereneeded and as a result the gatage settled and was damaged. The courtheld that the owner of the lot on which the excavation was made couldnot be held liable for the damage done.It is interesting to note here some of the circumstances out of whichan adjoining property owner is bound to support the improved land ofanother. The Mann case and the Alba case cited above are good illus-trations of the duty of lateral support resulting from a covenant thatruns with the land. Somewhat similar is the case of Freeholders ofHudson v. Woodcliff Land Co.,"' wherein land was granted for theexpress purpose of building a road thereon. The court held that theadjoining owner owed the duty of lateral support to a road built inaccordance with the terms of the deed. Manning v. New Jersey ShortLine R. Co., 12 is authority for the theory that where a railroad takesland, the adjoining property owners had the duty to support the builtup right of way. It is doubtful whether the courts would follow theManning case in the present day because there has been a decidedchange in public opinion with regard to the favoritism which was onceshown to railroads.In the Mann case, Doerfler, J. observes: "The law as laid down inthe Wellauer Case and in other Wisconsin cases is so firmly estab-lished in the jurisprudence of this state that it must be deemed a ruleof property, and if any relief or change is sought it must be obtained*266 Pa. St. 444.*i94 Wis. 559."223 N.W. 847.65 AtI. 844.1278 At. 2oo.NOTES AND COMMENTfrom the legislature. This leads one to speculate on the possibilitiesof there being a change in the law of lateral support through legis-lation. 'In the Wellauer case, the plaintiff based the defendant's lia-bility on a city ordinance which provided: "Any person, firm, orcorporation making excavations or causing the same to be made, shallproperly guard them and shall protect them that the adjoining soil shallnot cave in, and no one shall excavate so as to injure any adjoiningground or building.'3 The court held that this ordinance could not beinterpreted as placing the duty of supporting the building on the partydoing the work. On page 24 Eschweiler, J. points out that "such wellestablished property rights as are here involved cannot be taken awayor substantially changed except by express declaration of the legisla-ture, either by statute or by expressly delegating such power to thecommon council. Neither of such is found in this case." The ordi-nance has apparently never been changed. Since this decision washanded down the Home Rule Amendment was added to our constitu-tion. We wonder what would be the effect of a charter ordinancesimilar to the ordinance quoted above, bearing in mind the fact thatthe law on lateral support as it exists in Wisconsin today is entirelybench made law.JoHN J. McRAEPleading; Demurrer for Nonjoinable Causes of Action Inter-mingled in One CountErnst vs. Schmidt 223 N.W. 559 (Wis.)Plaintiff loaned money to the Elmwood Co., a corporation engagedin the development of Texas oil lands. The defendants, stockholdersin said corporation, agreed in writing that in the event that the plain-tiff was compelled to foreclose on the corporate property to securethe loan, they would pay their pro rata share of the loan and take theirpro rata share of the fee. The debt was not paid, plaintiff foreclosedon said property, and now sues the stockholders to obtain the amountof the loan according to the agreement.The plaintiff joined the defendants in one action, failing to separatelystate and number the separate causes of action. The defendants de-murred separately on the ground that several causes of action had beenimproperly united. The lower court overruled this demurrer. Onappeal it was held that such demurrer should have been sustained. Thecourt said -that where the causes of action are joined in one complaint,and instead of being individually stated in separate counts they arejoined in one count, the defective pleading is properly reached under'Milwaukee Code of 1914, IV, 43.

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Lateral Support: Rights and duties of, to Adjoining Landowners

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