Absolute right of Lateral Support; strict liability
A landowner has a legally enforceable right to lateral support from an adjoining landowner. The right to lateral support is an absolute property right. An adjoining landowner is liable for damages to the natural condition of land whether s/he acted negligently or not. An adjoining landowner who excavates close to his/her boundary line has a duty to prevent injury arising from the removal of the lateral support of a neighbor’s property. A lawsuit for removal of lateral support accrues when the damage occurs and not when the excavation is done.
In, Vikell Investors Pac. v. Kip Hampden, Ltd.,[i] court held that in lateral support cases strict liability will apply and the duty of an adjoining landowner to provide lateral support is governed by the natural dependence of the land. The court further stated that a landowner is absolutely entitled to the lateral support of his/her soil in its natural state by the soil of adjoining lands. The right to lateral support is not lost even if the land is no longer in its natural state and is filled or altered. However the landowner is entitled only to the lateral support from adjoining property that the land would have needed in its natural state, before it was filled or altered. The measure of entitlement and duty of adjoining landowner to provide lateral support is not changed by alterations of the natural condition. Any alteration of land, whether a purposeful improvement added to the land or an unforeseen collateral consequence of such an improvement, is an artificial condition on the land.
The legal presumption is that the weight of buildings, artificial additions, and fill contributed to the subsistence of land. The burden to overcome this presumption is on the land owner who is deprived of the right of lateral support.[ii]
[i] 946 P.2d 589 (Colo. Ct. App. 1997)
[ii] Vikell Investors Pac. v. Kip Hampden, Ltd., 946 P.2d 589 (Colo. Ct. App. 1997)