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 (ie; the right to have his land in natural condition held in place from the sides by the neighboring land so that it will not fall away) from the adjoining landowner. The adjoining landowner must take extreme care while excavating close to his/her boundary line because s/he has a duty to prevent injury arising from the removal of lateral support of a neighbor’s property. 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.

Since withdrawal of lateral support is a tort, the general principle that who ever participates in a tort will be answerable for damages resulting from the tort will determine who may be sued in action for impairment of lateral support[i].  Thus if a landowner excavates along his/her boundary line causing to impair lateral support to the adjoining land owner’s property, the person actually performing the act of excavation, and any person who directs/authorizes the excavation will be liable for the damage to adjoining land[ii]. If excavation is carried out by an independent contractor who is under a contract with the land owner, the owner and the contractor jointly will be sued for damages resulting from the contractor’s negligence[iii]. If several persons were involved in the act of excavation, each of them will be liable for the joint tort.  Although the several persons might not have conspired, the fact that the common act has resulted in damages and the fact that the results are indivisible, will make them liable for the whole damage[iv].

[i] Michelsen v. Upton, 175 Neb. 743, 755-756 (Neb. 1963)

[ii] Morris v. Ostertag, 52 Tenn. App. 561, 570 (Tenn. Ct. App. 1963)

[iii] Wharam v. Investment Underwriters, Inc., 58 Cal. App. 2d 346, 351 (Cal. App. 1943)

[iv] Puckett v. Sullivan, 190 Cal. App. 2d 489, 496 (Cal. App. 3d Dist. 1961)