Many states have enacted lateral support statutes and ordinances for the protection of buildings and structures on adjoining lands. Accordingly, some statutes require the excavator to provide prior notice of the proposed excavation to adjoining building owners.
Most statutes impose liability on persons who withdraw the naturally necessary lateral support of land in another’s possession. Courts have interpreted naturally necessary lateral support as “the support which the supported land itself requires and which in its natural condition and in the natural condition of the surrounding land it would require.”[i]
The measure of the right and corresponding duty of an excavator is the natural dependence of land upon land, and the right and duty are not enlarged by alterations of the natural condition.[ii] Lateral support made necessary by such alterations is not naturally necessary support. Statutes impose certain preconditions for securing the rights of adjacent landowners. For instance, Section 832 of the California Civil Code provides that each coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land, subject to the right of the adjoining land owner to make proper excavations on the property for construction or improvement, under certain conditions. The conditions include reasonable notice to the owners of adjoining lands, and the excavator shall use ordinary care and skill and take reasonable precaution to sustain the adjoining land.[iii]
A court interpreting the California Civil Code has held that the fact that a landowner’s property did not have a common boundary with an area in which excavation was taking place did not deprive him of the right to recover for damage caused to his property by any negligence of the person who was excavating.[iv] In Puckett, plaintiffs filed an action for damages to property from landslides allegedly caused by removal of lateral support by excavation of dirt from noncontiguous property. The court held that each of the several defendants who removed dirt from the property independently of the other, could not escape liability “where it could not be said with certainty when the unbalance causing the landslide was created by removal of earth and each defendant contributed to the result.”[v]
In addition, a statute may require an excavator to take precautions against injury to adjoining structures to protect the adjoining owner from the harshness of the common-law rule which confined the right of lateral support to soil alone and did not extend to the adjoining buildings or structures.[vi]
Where a statute requires a person making an excavation on his/her own land to protect the adjoining building, the person’s failure to do so renders him/her liable for the resulting damage to the building.[vii] Similarly, if statutes or ordinances impose a duty upon an owner to protect adjoining property when excavating, the owner cannot escape liability on the ground that the work has been done by employing an independent contractor. For instance, in N.Y. Admin. Code § C26-385.0, the words “the person or persons causing such excavation to be made” apply to the owner of the property who employs a third person to make such an excavation.[viii] Also, ordinances issued to protect “adjoining” or “contiguous” structures against the deprivation of lateral support have been applied to buildings on noncoterminous land damaged by an excavation. [ix]
[i] Puckett v. Sullivan, 190 Cal. App. 2d 489 (Cal. App. 3d Dist. 1961)
[iii] Cal Civ Code § 832
[iv] Puckett v. Sullivan, 190 Cal. App. 2d 489 (Cal. App. 3d Dist. 1961).
[vi] El Paso Electric Co. v. Safeway Stores, Inc., 257 S.W.2d 502 (Tex. App. 1953).
[vii] McDaniel Bros. v. Wilson, 45 S.W.2d 293 (Tex. Civ. App. 1931).
[viii] Victor A. Harder Realty & Constr. Co. v. City of New York, 64 N.Y.S.2d 310 (N.Y. Sup. Ct. 1946).