Story Case

Marshall Field and Company constructed a subway across Washington Street near the intersection of Wabash Avenue in Chicago. The workmen used the precaution of placing supports against the sides of the underground tunnel, but in spite of these efforts, the sides caved in. The portion of the soil which thus gave way was directly under Wabash Avenue. The result of the accident was that there was insufficient support for the pavement above, and the city of Chicago was compelled to suspend traffic for thirty days while the pavement was torn out, earth filled in, and new pavement laid down. When the city asked Marshall Field and Company to reimburse it for its expenditures, the company refused, on the ground that it had taken reasonable precaution to prevent the lateral sides from falling in, and that this was all that the city could require, so long as the soil on city property had never been directly touched by the employees. Does this excuse Marshall Field and Company?

Ruling Court Case. Gilmore Vs. Driscoll, Volume 122, Massachusetts Reports, Page 199; Volume 23, American Decisions, Page 312

Gilmore was the owner of a parcel of land in a populous portion of Boston, bounded on one side by the land of one Webb. The latter gave one Gillighan permission to remove the soil of his land to a grade of the street on its northwesterly side, on which both lots were located. Gillighan then gave permission to Dris-coll to remove a portion of the soil. He removed the soil in question, and Gilmore 's lot caved in. He brings action against Driscoll for damages.

Gilmore claimed that he was entitled to the lateral support of the adjoining land, and that the acts of Driscoll were a violation of this right, for which he was entitled to damage.

Mr. Chief Justice Gray said: "The right of an owner of land to the support of the land adjoining is natural, like the right of a flowing stream. Every owner of land is entitled, as against his neighbor, to have the earth stand and the water flow in its natural condition. In the case of running water, the owner of each estate by which it flows has only the right to the use of the water for reasonable purposes, qualified by a like right in every other owner of land above or below him on the same stream, but in the case of land which is fixed in its place, each owner has the absolute right to have his land remain in its natural condition unaffected by an act of his neighbor, and if the neighbor digs upon or improves his own land so as to injure this right, he may maintain an action against him." Judgment was given for Gilmore.

Ruling Law. Story Case Answer

It is a well settled principle of our law that every land owner is entitled to the lateral support of so much of the adjacent land as is necessary to support his land in its natural condition. In other words, if "A" makes an excavation upon his land, adjoining the land of "B", and "B's" land falls in as a result of the excavation, he may recover damages of "A", provided his land was in its natural condition when "B" made the excavation.

In the Story Case, the land which collapsed was not in precisely a natural condition, but observe that the pavement upon it did not cause the sinking. The street pavement was not affected, but remained intact. Only the underlying soil caved into the Marshall Field tunnel. In view of the fact that the artificial structure in no way caused the caving in of the soil beneath the street, the city of Chicago may recover from Marshall Field and Company, at least the amount expended in replacing such soil.