Vandegrift v. Boward

¹⁴¹ Constable, J., delivered the opinion of the Court. The plaintiff below, and the appellee here, was the owner of a lot of ground in the City of Cumberland, upon which stood a two-story brick dwelling house. The west wail of the house stood on the line dividing her lot from the adjacent lot. The adjacent lot was owned by tbe appellant Car] Smith, and previous to the injury complained of was unimproved.

Carl Smith entered into a contract with the other appellant, John Vandegrift, a builder, to erect for him a threesstory brick building to be used as. flats. As a eonse^ quence' of excavating the earth from the Smith lot for the purpose of making a cellar and the foundations the house of the appellee was. damaged by the settling of the west wall. The appellee brought suit for recovery of the damages sustained and secured a verdict upon which judgment was accordingly entered. The declaration averred that “the said defendants did wrongfully and negligently excavate below the foundation walls of the plaintiff’s, property without notice and in an unskillful and unworkmanlike manner.” There were hut three exceptions taken to the rulings of the Court below, two to questions, of evidence and the other to-the ruling on the prayers.

In addition to the facts we have already enumerated the testimony for the appellee' tended to show that in digging for the foundation the excavating was along and adjacent to thei foundation of the appellee’s, house and deeper hy from six to fifteen inches than her foundation. There was also testimony to show that damage to the house was the immediate result of the excavating. Upon the cross-examination of the appellee and her husband evidence was offered tending to show that the husband was the agent of the appellee in all affairs connected with the management of his wife’s property. The appellee testified that she had no notice, in any way that the appellants intended digging below the line of her foundation.

By this it is not meant that the digging was under the appellee’s, foundation, for the entire excavation was on the Smilh property, hut that the excavation was ¹⁴² deeper on the Smith lot than the bottom of the appellee’s foundation. The husband on cross-examination denied that ■either Vandegrift or Smith had shown him any plans of the building they intended to erect. In order to show that proper notice of the new building-had been given to the appellee, the appellant Sinith testified that shortly before Christmas, 1913, he, accompanied by the •other appellant, went to the store of the husband of the appellee and advised him that the building' was to be erected, and at the same time produced the plans for his inspection, and that he, Boward, commented upon them to the effect that it was a nice building. The testimony of Vandegrift was- to the same effect, except he said the plans were shown to Boward without comment or explanation, and that the leaves of the plans were turned over by Boward.

Hereupon it was proposed to offer the plans in evidence, but upon objection by the appellee the Court would not admit them. This action constitutes the second exception, and is, in fact, the only important one in the record. Before considering this exception it perhaps will be better to state what, from the decisions, has become the settled law of this State in cases of this character, especially with reference to notice being given to an adjacent owner' by an owner about to make improvements. And that rule is as stated by Judge Fowler, in delivering the opinion in Serio v. Mur phy, 99 Md. 545 : “If a person who is about to excavate his own lot in proximity to the wall of an adjacent house gives reasonable notice thereof to the adjoining owner, the latter is bound to protect his own property and the former is