Mullan v. Hacker

²⁶⁵ Delaplaine, J., delivered the opinion of the Court. Masie Hacker, widow, owner of a lot of ground on Cator Avenue in Baltimore, improved by a dwelling and a concrete-block garage in the rear, instituted this suit against Thomas Mullan, Sr., Thomas Mullan, Jr., Charles Mullan and Joseph Mullan, individually and trading as Thomas Mullan & Sons, to recover damages to her garage alleged to have been caused by their negligence in underpinning it while excavating on their adjacent land. At the trial of the case before a jury in the Superior Court of Baltimore City, it was shown that the garage, which was divided by four partition walls to accommodate five automobiles, was built in 1922, and in 1942 defendants, undertaking to build a row of houses on the south side of Forty-first Street and to lay out an alley in the rear, employed workmen to excavate a bank of earth along the southern end of their land near the garage. To support the north wall of the garage, the workmen built an underpinning of stone; and to protect the east wall, they erected a high retaining wall.

Plaintiff and her witnesses testified that before the excavation the garage was in good condition; but after the excavation the north wall moved three or four inches out of plumb, the walls cracked, the rafters pulled out from the walls, and the roof fell in. The jury brought in a verdict in favor of plaintiff for $3,000, but upon motion for a new trial plaintiff filed a remittitur for $1,125, and judgment was thereupon entered for $1,875. From that judgment defendants appealed to this Court. It is an ancient principle of the common law that every owner of land has to right to lateral support from the adjoining soil, and if a landowner removes the earth from his own land so near the land of his neighbor that his neighbor’s soil will crumble away under its own weight, he is liable for damages so occasioned.

The original theory of lateral support in England was that it was an easement subjecting the adjoining land to a natural servitude. Under that theory it was not necessary to prove any negligence to establish liability, because the right ²⁶⁶ was violated merely by removal of support. In the course of time, however, there developed the theory that the right to lateral support is a right of property naturally attached to the soil. Foley v. Wyeth, 2 Allen (Mass.) 131, 79 Am.

Dec. 771 , 772. Under this theory it was necessary to show negligence or intention to cause injury. Neither of these conflicting theories, as the American Law Institute has stated, has unqualifiedly prevailed. The two views of the nature of the right of lateral support of land have each contributed to the present law.

The ancient view left its influence on the law in so far as the right in respect to the land itself in its natural condition is absolute. 4 Restatement, Torts, 185, 186. We reaffirm the statement made by Judge Alvey in 1875 in his opinion in Baltimore & Potomac R. Co. v. Reaney, 42 Md. 117, 135 , that the right of support to land from the adjoining soil is a right of property, and not an easement; but, if that support is withdrawn and injury ensues, the absence of negligence is immaterial. The right of a landowner to the support of adjqining land is jure naturae, like the right to a flowing stream. Each owner has the absolute right to have his land remain in its natural condition unaffected by any act of his neighbor.

If an adjoining owner injures his right, he can maintain an action for damages without proving negligence or want of skill on the part of the adjoining owner. Prete v. Cray, 49 R. I. 209, 141 A. 609 , 59 A. L. R. 1241; Young v. Mall Investment Co., 172 Minn. 428 , 215 N. W. 840 ,. 55 A. L. R. 461. It is well settled, however, that the right of lateral support applies only to the soil in its natural condition. It does not apply to buildings on the land.

Northern Transportation Co. v. City of Chicago, 99 U. S. 635 , 25 L. Ed. 336, 339 . In explaining this rule in a Massachusetts case, Chief Justice Gray said: “While each 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 natu ²⁶⁷ ral 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.” Gilmore v. Driscoll, 122 Mass. 199 , 23 Am. Rep. 312 , 314.

Hence, where an excavation is made by a landowner on his own land for a proper purpose and it is not done negligently, unskillfully, or with improper motives, any damage occasioned to a building on adjoining land is damnum absque injuria. Winn v. Abeles, 35 Kan. 85 , 10 P. 443 , 57 Am. Rep. 138 . But while a landowner is not bound to furnish lateral support sufficient to sustain his adjoining owner’s land where the lateral pressure has been increased by a building thereon, nevertheless he must use due care in making an excavation in such a ease.

The test in determining whether an excavator was negligent in a particular case is whether he did his work in such a careless and improvident manner as to occasion greater danger to the adjoining owner than he would have incurred in reasonable course of such work. Charless v. Rankin, 22 Mo. 566 , 66 Am. Dec. 642 , 644. It is usually a requirement of due care for an owner of land, who intends to make an excavation thereon and is about to endanger a building on the land of his neighbor, to notify his neighbor of the intended improvement and afford him an opportunity to take precautions to protect his building.

Lasala v. Holbrook, 4 Paige (N. Y.) 169, 25 Am. Dec. 524 ; Schultz v. Byers, 53 N. J. L. 442, 22 A. 514 , 13 L. R. A. 569, 26 Am. St. Rep. 435 ; Gerst v. City of St. Louis, 185 Mo. 191 , 84 S. W. 34 , 105 Am. St. Rep. 580 .

Such a notice is a reasonable precaution, especially in a large city, where improvements made by one proprietor, however skillfully they may be conducted, may be attended with accidental and disastrous results to his neighbors. Shafer v. Wilson, 44 Md. 268, 281 . We have held that there is no imperative obligation ²⁶⁸ upon a landowner in the absence of statute of ordinance to give an adjoining owner a notice of his intention to excavate in close proximity to the adjoining owner’s building. The requirement to give such a notice is predicated upon the propostion that a person in possession of property must use due care to see that it is so used and managed that other persons will not be injured.

Bonaparte v. Wiseman, 89 Md. 12, 23 , 42 A. 918 , 44 L. R. A. 482. But in the instant case the duty of defendants was clear, as the Baltimore City Building Code provides that, before the commencement of any excavation which will extend three feet or more in depth and which may affect adjoining property, the owner of the premises on which the excavation is to be done shall give to the adjoining owner notice in writing of the intention to commence, and a copy of the notice shall be filed in the Bureau of Buildings before a permit is issued. Baltimore City Code, 1941 Ed.,' Art. 3, Ch. 22. In this case plaintiff testified that she did not receive any notice of the intention of defendants to excavate.

Plaintiff testified that at the time of the excavation there was a steady rain for three days, and the ditch under the central part of the garage was left open five or six days, and it was so muddy that the workmen were unable to put in any more underpinning. Her daughter, Mrs. Edna Franks, recalled that the rain at the time of the excavation was “one of those hard blowing rains, and it came right from the north, and just washed right in under the garage, and as it washed under, it washed the dirt out and the dirt ran down where the alley is now.” Mrs. Franks explained how that .the workmen “had dug some of it out, and had built a little up, but they hadn’t gotten up under the garage in order to support the garage.” William Spencer, who built the garage for plaintiff and her husband, was positive in his opinion that the settling of its walls