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Persons Entitled To Sue

A landowner has a legally enforceable right to lateral support from an adjoining landowner.  Lateral support is the right to have one’s land in its natural condition held in place from the sides by the neighboring land so that it will not fall away. Land is considered in its natural condition if it has no artificial structures or buildings on it.  A landowner is entitled to sue the right to enforce the right to lateral support in court.  A lawsuit for the removal of lateral support accrues when the damage occurs, not when the excavation is done.

The right to lateral support is an absolute property right, and therefore an the owner of a property can sue an adjoining landowner for damages to the natural condition of the land regardless of whether or not he/she acted negligently.

A railroad was entitled to recover for damages to its right of way from the removal of the lateral support by negligent excavation on the adjoining land.[i]

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.[ii]  Therefore in the case of Contos v. Jamison[iii], it was observed that a lessee may recover the damages suffered by him or her through the negligence of the adjoining landowner in excavating.  In addition, a tenant may recover for injuries resulting from the unlawful removal of lateral support.[iv]

When, however, 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 sue for 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 its 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.

Only a person who owns the property can sue the neighbor for loss of lateral support.  Apart from the owner of the property, the person who is in actual possession of the property can also sue the adjacent landowner for loss of lateral support.  In the case of Seal v. Aldredge[v], there was a lowering grade of land which resulted in the removal of lateral support for adjoining property, thereby causing it to erode and fall away.  In this case it was observed that actual possession is sufficient prima facie evidence of title to authorize a recovery of damages to the freehold for removal of lateral support, where nothing appears to the contrary.

In another case, where there was an action against an adjoining landowner for damage to the plaintiff’s land by the defendant’s failure to properly maintain his or her retaining wall and the breaking apart of the wall was a gradual process, it was observed by the court that the plaintiff is entitled to recover only with respect to such damage as occurred after the plaintiff’s acquisition of title to the land by adverse possession.[vi]

[i] New York Cent. R. Co. v. Marinucci Bros. & Co., 337 Mass. 469, 149 N.E.2d 680 (1958).

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

[iii] 81 S.C. 488, 62 S.E. 867 (1908)

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

[v] 100 Ga. App. 458, 111 S.E.2d 769 (1959)

[vi] Schiro v. Oriental Realty Co., 272 Wis. 537, 76 N.W.2d 355, 73 A.L.R.2d 1368 (1956).


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