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Civil Practice and Procedure Related to Lateral Support

In property law, lateral support is the right of a landowner to physically support his/her land in its natural state by both adjoining land and underground structures.  Lateral support assures the support of the adjoining land against any slippage, cave-in or landslide.  The right to lateral support is an absolute right.  Interference with this right amounts to strict liability.  If a landowner’s property is damaged by an excavation conducted by an adjoining owner, that adjoining owner is liable for the damages.  In the case of adjoining properties, landowners have mutual legally enforceable rights to lateral support.

The right to lateral support is enforceable in court. It is significant to note that the cause of action accrues when the damage occurs, and not when the excavation is done.  For example, if land falls or collapses after the adjoining neighbor excavated his/her part of the boundary, the cause of action arises when the land falls and not when the excavation was conducted.  A Kansas court has held that “[w]here one, by digging in his own land, causes the adjoining land of another to fall, the actionable wrong is not the excavation, but the act of allowing the other’s land to fall.”[i]

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.

In an action for damages, the statute of limitations begins to run from the time lateral support was impaired, or when the land falls.  A new and separate cause of action arises with each new instance of loss of lateral support.  The applicable limitations run separately for each instance.  In short, “it is the subsequent injury, coupled with the lack of lateral support that starts the statute of limitations running, not the original excavation.”[ii] However, statutory limitation periods vary from state to state as provided in the respective state civil codes.

The courts generally try to estimate the cost of restoring the land to its original condition in measuring the damages caused due to removal of lateral support.[iii] If the restoration cost cannot be satisfactorily estimated, the diminution in value has been held to be the correct measure of damages.[iv] Generally, if courts find that the cost of restoration or repair of the injured premises is less than the cost of diminution in the value of the property, the cost of restoration or repair will be taken to consideration in measuring damages.[v] However, if it is found that the injured land owner has no choice other than to make the restoration, the cost of restoration would be the proper measure of damage even though it exceeds the cost of diminution in value, or even the whole value of the property.[vi]

Every owner of land is entitled to lateral support as of right, and any loss of the support will entitle the owner to be compensated by payment of damages.[vii] Punitive and exemplary damages are also granted to the owner in cases based on removal of lateral support claims.  However, for the entitlement of punitive and exemplary damages the owner will have to show at least one independent cause of action for compensatory damages.  Thus, award of actual or compensatory damages can be said as a prerequisite to a recovery of punitive damages.[viii]

Injunction is an equitable relief granted in cases with causes of action based on lateral support.  The plaintiff will have to show irreparable damage for a grant of injunction.  Injunction is also granted in cases where the court feels that a mere award of expenses incurred by the plaintiff to the time of the trial would not give him/her adequate relief.[ix] Although courts generally tend to grant injunction relief, it is the discretion of the court to deny or grant the plaintiff landowner’s request for injunctive relief requiring the adjoining landowner to restore lateral support.  However, instead of awarding injunctive relief, courts may award plaintiff monetary damages for diminution of value.  Injunction relief may be denied by courts in following situations:

  • when the cost of the restoration far exceeds the diminution in value;
  • when the award for the diminution in value adequately compensates plaintiffs; and
  • when part of the restoration would require the defendant to perform work on the plaintiffs’ property which could lead to future disputes between parties.[x]

If a landowner removes a lateral support by excavation done on his land, he is absolutely liable for the damages to his adjoining landowner.  But this rule is not applicable in the case of noncoterminous or noncontiguous tract.  Noncoterminous or noncontiguous tracts are lands without a common boundary.  However, the fact that a plaintiff’s land does not have a common boundary with the area of the excavation does not deprive him/her of the right to recover damages for the loss of lateral support caused by the defendant’s negligence in making the excavation.

Apart from the actual owner of the land, lessees to the property also have the right to sue for loss of lateral support to the land.[xi] In Contos v. Jamison, 81 S.C. 488 (S.C. 1908), it was observed that a lessee may recover the damages suffered by him or her through the negligent excavation of the adjoining landowner.  In addition, a tenant may recover for injuries resulting from the unlawful removal of lateral support.[xii]

If a landowner has erected buildings on the land, his or her right to recover for deprivation of the lateral support is different.  In such cases, since additional weight has been placed on the land, which has increased the burden on the lateral support, the landowner can claim damages for injuries to the building caused by excavation only if his/her neighbor has been negligent.  When evidence establishes that an adjoining landowner has removed the lateral support of a neighbor’s land, the neighbor can sue to recover damages in the amount of either the cost of restoring the property to its value before the support was removed; or the cost of restoring the land to its former condition, whichever is less.  An injunction prohibiting further excavation may be granted if it poses a clear danger to contiguous lands and if it will cause irreparable damage.  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.[xiii]

An action for damages to property when lateral support is impaired should allege the following:

  1. the relative situation of the properties;
  2. the interest of the plaintiff;
  3. the duty of the defendant;
  4. the acts done;
  5. the results; and
  6. that the work was done injuriously, wrongfully, carelessly, and negligently.

In lateral support cases, a principal objection to allowing prospective damages is that the excavator is prohibited from justifying damages by restoring the lateral support.  According to the Courts, a party suffering from an injury in the nature of a continuing nuisance may recover damages as often as s/he brings action.

[i] Kansas C. N. R. Co. v. Schwake, 70 Kan. 141, 146 (Kan. 1904)

[ii] Lee v. Lemon, 71 Va. Cir. 283, 284 (Va. Cir. Ct. 2006)

[iii] Wentworth v. Air Line Pilots Ass’n, 336 A.2d 542 (D.C. 1975)

[iv] Louisville & N. R. Co. v. Colombo, 240 Ky. 102 (1931)

[v] See Meyer v. City of Rosedale, 84 Kan. 302 (1911); Mullan v. Hacker, 187 Md. 261 (1946)

[vi] Levi v. Schwartz, 201 Md. 575 (1953)

[vii] State ex rel. Dept. of Transp. v. Winters, 170 Or. App. 118 (2000)

[viii] Barber v. Hohl, 40 N.J. Super. 526(App. Div. 1956).

[ix] Gorton v. Schofield, 311 Mass. 352(1942).

[x] Franc v. Bethel Holding Co., 73 Conn. App. 114(2002).

[xi] Walker v. Strosnider, 67 W. Va. 39, 67 S.E. 1087 (1910)

[xii] Farnandis v. Great Northern Ry. Co., 41 Wash. 486, 84 P. 18 (1906).

[xiii] Vikell Investors Pac. v. Kip Hampden, Ltd., 946 P.2d 589 (Colo. Ct. App. 1997)

Inside Civil Practice and Procedure Related to Lateral Support