95. Trinidad Asphalt Co. v.

The natural right of support to one's land from adjacent land does not give to a landowner the right to place on the land an additional weight, such as a building, and claim a right of support for the land with such added weight, since this would deprive the adjoining owner of the proper and natural use of his land.96

In England, and in some states in this country, it appears to be settled that, if the land would have fallen away, even without the building, as a result of the excavation of adjoining land, the owner may recover for damage to the building as well as to the land,97 and this would seem, on principle, to be a correct view of the matter, since the damage to the building is as much a proximate result of the violation of the natural right as is the damage to the land. It is difficult to distinguish in this regard between damage to a building erected on the land and damage to crops or plants grown on the land. In a number of states, however, the cases tend to support the view that, even though the land would have fallen without the building, there can be no recovery for damage to the building,98 in the absence of negligence.99 These cases ordinarily fail to distinguish this question, of the right to recover for damage to a building caused by a sinking of the land, which would have occurred even if no building had been erected, from the entirely distinct question of the right to recover for a sinking of the land with a building thereon, which would not have occurred had the building not been erected.

Negligence that he omitted, before making the excavation, to notify the adjoining owner of his intention to make it,2 provided, at least, he had reasonable ground to anticipate that it would result in damage to the building,3 and the adjoining owner was not otherwise affected with notice of the proposed excavation.4

Ambard (1899) App. Cas. 594. See 13 Harv. Law Rev. at p. 299.

96. Wyatt v. Harrison, 3 Barn. & Adol. 873; Partridge v. Scott, 3 Mees. & W. 220; Northern Transportation Co. v. City of Chicago, 99 U. S. 635, 25 L. Ed. 336; Moody v. McClelland, 39 Ala.

45, 84 Am. Dec. 770; Ceffarelli v. Landino, 82 Conn. 126, 72 Atl. 564; Starrett v. Baudler, - Iowa, -, 165 N. W. 216; Thurston v. Hancock, 12 Mass. 220; Gilrnore v. Driscoll, 122 Mass. 199, 23 Am. Rep. 312; Gildersleeve v. Hammond, 109 Mich. 435, 33 L. R. A..

46, 67 N. W. 519; Horowitz v. Blay, 193 Mich. 493, 160 N. W. 438; Obert v. Dunn, 140 Mo. 476, 41 S. W. 901; Craig v. Kansas City Terminal Ry. Co., 271 Mo. 516, 197 S. W. 141; Panton v. Holland, 17 Johns. (N. Y.) 92, 8 Am. Dec. 369; Dorrity v. Rapp. 72 N. Y. 307; Tunstall v. Christian, 80 Va. 1. 56 Am. Rep. 581; Farnandis v.

Great Northern R. Co., 41 Wash. 486, 5 L. R. A. N. S. 1086, 111 Am. St. Rep. 1027. 84 Pac. 18; Walker v. Strosnider, 67 W. Va. 39, 21 Ann. Cas. 1, 67 S. E. 1087. 97. Goddard, Easements (6th Ed.) 504, 580; Gale, Easements (8th Ed.) 403; Brown v. Robins, 4 Hurl. & N. 186; Hamer v. Knowles, 6 Hurl. & N. 454; Atty. Gen. v. Conduit Colliery Co., (1895), 1 Q. B. 301, per Collins. J.; Wilms v. Jess, 94 111. 464, 34 Am. Rep. 242; Langhorne v. Tur-man, 141 Ky. 809, 133 S. W. 1008; Stearns v. City of Richmond, 88 Va. 992, 29 Am. St. Rep. 758, 14 S. E. 847; Parke v. City of Seattle. 5 Wash. 1, 34 Am. St. Rep. 938, 31 Pac. 310, 32 Pac. 82; Farnandis v. Great Northern R. Co., 41 Wash. 486, 5 L. R. A. N. S. 1086, 111 Am. St. Rep. 1027, 84 Pac 18. See Beard v. Murphy, 37 Vt. 99, 86 Am. Dec. 693.

Even though there would otherwise be no liability on account of the damage to a building, the cases are to the effect that the person excavating is so liable in case he fails to exercise due diligence to avoid such damage.1 And it has been regarded as evidence of

98. City of Quincy v. Jones, 76 111. 231, 20 Am. Rep. 243 (dictum) Moellering v. Evans, 121 Ind. 195, 6 L. R. A. 449, 22 N. E. 989; Schmoe v. Cotton, 167 Ind. 364, 79 N. E. 184 (dictum): Vande-grift v. Boward, 129 Md. 140, 98 Atl. 528; Thurston v. Hancock, 12 Mass. 220; Foley v. Wyeth, 2 Allen. (Mass.) 131, 79 Am. Dec. 771; Gilmore v. Driscoll, 122 Mass. 199; Gildersleeve v. Hammond, 109 Mich. 431, 33 L. R. A. 46, 67 N. W. 519; Obert v. Dunn, 140 Mo. 476, 41 S. W. 901 (sem-ble); McGuire v. Grant, 25 N. J. Law 356, 67 Am. Dec. 49 (semble) Schultz v. Byers, 53 N. J. Law 442, 13 L. R. A. 569, 26 Am. St. Rep. 435, 22 Atl. 514 (semble); Panton v. Holland, 17 Johns. (N. Y.) 356, 67 Am. Dec. 49 (semble); Sharpless v. Boldt, 218 Pa.

St. 372, 67 Atl. 652; Cooper v. Altoona Concrete, etc., Co., 231 Pa. 557, 80 Atl. 1047; Bailey v. Gray, 53 S. Car. 503, 31 S. E. 354; Weiss v. Kohlhagen, 58 Ore. 144, 113 Pac. 46; Ulrick v. Loan & Trust Co., 2 S. Dak. 285, 49 N. W. 1054; Richardson v. R. Co., 25 Vt. 463, 60 Am. Dec. 283 (dio turn.)

99. Post, this section, notes 1-4.

1. Moody v. McClelland, 59 Ala. 45, 84 Am. Dec. 770; City of Quincy v. Jones, 76 111. 231, 20 Am. Rep. 243; Block v. Hazel-tine, 3 Ind. App. 491, 29 N. E. 937; Shrieve v. Stokes. 8 B. Mon (Ky.) 453, 48 Am. Dec. 401; Shafer v. Wilson. 44 Md. 268; Gildersleeve v. Hammond. 109 Mich. 431, 33 L. R. A. 46, 67 N. W.

If one withdraws support, so as to cause the fall of neighboring land burdened with a building, merely for the purpose of gratifying his ill will against the owner, without any purpose of benefitting himself, he would, it seems, in some jurisdictions, even though not in any way negligent, be liable in damages as for a tort.5

A municipality is not, by some decisions, liable to an owner of land abutting on a street for depriving his or the minerals therein, the owner of the surface is entitled to have it remain in its natural condition, without any subsidence by reason of the withdrawal of the land or minerals thereunder by the subjacent owner.9 This right of support from subjacent land is closely analogous to the right of lateral support. There is properly no right of action by reason of the withdrawal of the subjacent support until there is an actual subsidence of the surface by reason thereof,10 and it exists in favor of the surface in its natural condition only, the owner of the lower stratum being under no obligation to furnish support for buildings erected on the surface.11 Not infrequently, upon the severance of the ownership of the minerals from that of the surface, an easement is created in favor of the owner of the minerals allowing him to extract the minerals without regard to any resulting damage to the surface owner.12 A custom to this effect has been held to be invalid and nugatory.13

519; Charless v. Rankin, 22 Mo. 566, 66 Am. Dec. 642; Pullan v. Stallman, 76 N. J. Law 10, 56 Atl. 116; Panton v. Holland, 17 Johns. (N. Y.) 92; Austin v. Hudson River R. Co., 25 N Y. 334; Davis v. Summerfield, 131 N. C. 552, 42 S. E. 818; Spohn v. Dives, 174 Pa. 474, 34 Atl. 192; Ulrick v. Loan & Trust Co., 2 S. Dak. 285, 49 N. W. 1054; Simon v. Nance, 45 Tex. Civ. App. 480, 100. S. W. 1038; Tunstall v. Christian, 80 Va. 1, 56 Am. Rep. 581; Walker v. Strosnider, 61 W. Va. 39, 21 Ann. Cas. 1, 67 S. E. 1087.

2. Zilka v. Graham, 26 Idaho, 163, 141 Pac. 639; Winn v. Abeles, 35 Kan. 85, 57 Am. Rep. 138, 10 Pac. 443; City of Covington v. Geyler, 93 Ky. 275, 19 S. W. 741; Shafer v. Wilson, 44 Md. 268; Gerst v. St. Louis, 185 Mo. 191, 208, 105 Am. St. Rep. 580, 84 S. W. 34; Lasala v. Holbrook, 4 Paige (N. Y.) 169; Schultz v. Byers, 53 N. J. Law 442, 13 L.

R. A. 569, 26 Am. St. Rep. 435, 22 Atl. 514; Davis v. Summerfield, 131 N. C. 352, 63 L. R. A. 492, 92 Am. St. Rep. 781, 42 S. E. 938; Walker v. Strosnider, 67 W. Va. 39, 21 Ann. Cas. 1, 67 S. E. 1087; Stockgrowers' Bank v. Gray, 24 Wyo. 18, 154 Pac. 593; Contra, Dorrity v. Rapp, 72 N. Y. 307 (dictum).

3. O'Neill v. Harkins, 71 Ky. 650; Bonaparte v. Wiseman, 89 Md. 12, 44 L. R. A. 482, 42 Atl. 918; Gerst v. St. Louis, 185 Mo. 191, 210, 105 Am. St. Rep. 580, 84 S. W. 34; Craig v. Kansas City Terminal Ry. Co., 271 Mo. 516, 197 S. W. 141; Beard v. Murphy, 37 Vt. 99.

4. Schultz v. Byers, 53 N. J. L. 442, 13 L. R. A. 569, 26 Am. St. Rep. 435, 22 Atl. 514; Jamison v. Myrtle Lodge, 158 lowa, 264, 139 N. W. 547; Novotny v. Danforth, 9 S. Dak. 301, 68 N. W. 749.

5. Healey v. New Haven, 47 Conn. 305, 314; Quincy v. Jones, land of lateral support by lowering the grade of the street,6 while, by other decisions, a municipality is subject to the same liability in such case as would be incurred by an individual removing the support.7

In some states legislation has been enacted imposing upon one who makes an excavation in his land in close proximity to a building erected upon adjoining land, an obligation, in case such excavation is greater than a named depth, ordinarily ten feet, to take measures to protect the adjoining land. These statutes have been occasionally the subject of judicial construction,8 without apparently any serious question having been raised as to the constitutionality of such legislation. It would presumably be upheld as a valid exercise of the police power.8a