Appeal, No. 183, Jan. T., 1953, from order of Court of Common Pleas of Lancaster County, Jan. T., 1952, No. 30, in case of D.S. Warfel v. Margaret Vondersmith and Emily L. Wolf. Order affirmed.
Harris C. Arnold, with him Bruce, P. Ryder, John W. Beyer and Arnold, Bricker & Beyer, for appellant.
Charles W. Eaby, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
While there does not appear to be any precedent in Pennsylvania controlling the decision of the present appeal an application of the established principles governing other aspects of the problem supports the view taken by the court below and calls for an affirmance of its order.
The facts are these: "Plaintiff, a general contractor, entered into a contract with Lancaster Newspapers, Inc., to demolish old structures and erect a new building on property belonging to it in the City of Lancaster. The new building was of heavy construction and required excavation for foundations and cellar to a depth of from 16 to 20 feet below the street level. Defendants are the owners of a property adjoining that of the Newspapers, and on it was erected a two-story brick store building together with a one-story structure used as a store room. These buildings were situated along the boundary line between the two properties; neither of them had a cellar or basement, but they rested on foundations which in general extended not more than 3 or 4 feet below the surface of the ground.
Plaintiff's plans called for an excavation along the boundary line for a distance of approximately 160 feet. Before starting operations he notified defendants of his intentions and that they should take all necessary measures to support their buildings. After some consultation and negotiations which proved abortive, defendants employed another contractor who undertook to protect their buildings from collapse by erecting certain temporary roof props or cribbing inside their buildings. Plaintiff notified defendants that in his opinion these precautions were wholly inadequate, but defendants refused to do any underpinning or shoring outside or under their buildings. Thereupon, allegedly in order to prevent interference with his work and injury to his workmen or other persons, plaintiff proceeded to underpin defendants' buildings at a cost of $3,572.37. Defendants had given plaintiff permission to enter upon their premises for that purpose but made no promise, express or implied, to pay the cost. Plaintiff brought the present action to recover the cost of the work. Defendants not only denied any obligation on their part to make such payment but filed a counterclaim for alleged damage to their property due to blasting and other operations conducted by plaintiff. The jury returned a verdict for plaintiff in the sum of $3,183.05, apparently the full amount of the claim less part of the counterclaim. Defendants moved for a new trial which the court granted solely on the ground that in its opinion defendants were not liable to pay plaintiff for the work done to support their buildings; the counterclaim, however, made it impossible to enter a judgment n.o.v. Plaintiff appeals from the granting of the new trial.
As far as the rights and obligations of one excavating on his own property are concerned the law is so well established as to require no citations of the multitude
of authorities. At common law an owner of land is entitled to have it supported in its natural condition by the land of the adjoining proprietor. This right to lateral support is a natural right, not simply an easement but an incident to the land, -- a right of property attached to and passing with the soil. If the adjoining owner by excavation removes such support, thereby causing the land to fall, he is responsible in damages without regard to his degree of care or to the fact that the excavation may have been performed by an independent contractor. The right to lateral support, however, does not extend to structures erected on the property which materially increase the lateral pressure and therefore contribute to the subsidence of the land. As far as such structures are concerned an owner may lawfully excavate on his land although he injures them; in the absence of negligence (which varies with the circumstances) he is not obliged to underpin or otherwise support them and ...