The right to lateral support is a common law right.  In the case of adjoining properties, either landowner has a legally enforceable right to lateral support from an adjoining landowner. Lateral support is a land owner’s right to have his/her land in natural condition held in place from the sides by the neighboring land so that it will not fall away. The adjoining landowner must take extreme care while excavating close to the property boundary line because s/he has a duty to prevent injury arising from the removal of lateral support of a neighbor’s property. The right to lateral support is an absolute right.  Therefore, an adjoining landowner will be liable in case s/he causes damage to the natural condition of the land.

The right to lateral support is enforceable in court. It is significant to note that the cause of action accrues when the damage occurs, 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 done.  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]

Similarly, in an action for damages, the statute of limitations also begins to run from the time lateral support was impaired, ie; when the land fell.  A new and separate cause of action arises with each new instance of loss of lateral support, with any applicable limitations statute running separately for each separate 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]  The period of statute of limitations varies from state to sate and is as stated in the respective state civil code.  Thus while Arkansas has a three year statute of limitations, Virginia[iii] has a five year limitation period.

[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] Va. Code Ann. § 8.01-243