Jones v. Greenfield , 25 Pa. Super. 315 ( 1904 )

Opinion by

Orlady, J.,

The plaintiff’s claim is for damages caused by the defendant making an excavation on his own property so as to cause a portion of the plaintiff’s land to be loosened and to slide, together with a wall for its protection, into the excavation made by the defendant, which excavation was made by digging and blasting, in order to make the grade of the lot conform to the grade of the street upon which it fronted.

The defendant was the owner of his property at the time the plaintiff acquired title to lier lot which was situated on higher ground, the soil being held in place by a dry stone wall that had been erected by her predecessor in title, which wall fell in 1895 and was never reconstructed, although suit was not brought until. April 1, 1901.

It is evident that the testimony adduced on the trial did not warrant the verdict returned by the jury, as the court reduced it from $367 to $260, and an examination of the record shows that the latter sum is not based upon sufficient evidence to sustain it. There should not be any controversy as to the legal principles applied to such a case, they have been so recently considered by Judge Porter in Fyfe v. Turtle Creek Borough, 22 Pa. Superior Ct. 292, that it is not necessary to recapitulate them. The right of lateral support, as between individual owners, is the right to have land in its natural state supported by the adjacent land. It is an incident to the land, a right of property necessarily and naturally attached to the soil.

It is also so well settled that the right appertains only to the land, and not to buildings and other artificial improvements thereon erected. When an owner makes an excavation upon his land, in a manner free from negligence, and so deprives a neighbor’s property of lateral support, his liability for damages is limited to the injury to the land without regard to the buildings.

The appellee urges that no attempt was made to recover for the value of the wall but only for damages sufficient to restore the property to its former grade, yet on the trial the plaintiff was permitted under objection to prove the cost of construction of a new wall, containing sixty-four and one half cubic yards while the old wall contained but seven and seven tenths cubic yards of stone. The old wall was eight feet six inches high and eighteen inches thick and the one contemplated by this verdict was fourteen feet high, five feet six inches thick at the base and two feet thick at the top. The old wall cost $20.00, the estimated one would cost $340. The old wall had been down nearly six years, and the owner had never. moved toward replacing it. The slip of the wall and surface earth did not affect the rock foundation on which the old wall stood, and the estimate of the necessary support to restore the lot to its natural state should have been confined to the conditions as they existed when the wall fell, and not extended to the speculative cost of an entirely different kind of structure.

The plaintiff might well accept such a verdict as a profitable improvement of her property, rather than attempt to restore the ground to its natural state. The verdict in such a case is intended to be compensation for actual injuries sustained, and not as punitive damages. The appellee admits that since the year 1890 no such suppoi’t has been necessary, so that the claim for damages to restore the property to its former grade is not consistent with the verdict.

It is well settled that a trial judge is not bound to answer in detail every point ingenious counsel may put to him, nor even to affirm a correct legal proposition in the exact phrase presented. If the law applicable to the case is plainly, fully, and accurately stated, there is no cause for complaint if the judge chooses to express it in his own words. To dispose formally of points submitted without reading them to the jury, the charge of the court should not omit anything favorable to either side, nor should it contain any erroneous statement of law or fact that is raised by a point submitted for special instruction.

The defendant was entitled to particular answers to the fifth and tenth points submitted. In the absence of negligence the measure of his liability should be limited to the injury to the land without regard to the stone wall.

The judgment is reversed and a venire facias de novo awarded.