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Nature of Right of Lateral Support

The right of lateral support is a right of support of land in its natural condition.  It is a natural right inherent in and passing with the land.  It is a right incident to the ownership of land.  Any material infringement to this right by a land owner is actionable irrespective of the question of due care or negligence.  The right of lateral support is not strictly an easement but is analogous to an easement.  The right does not depend upon prescription or grant.  However the right to remove the support may be acquired by grant.

In State v. Winters, court held that the right of lateral support is an interest in land.  The loss of the right of lateral support entitles the owner to compensation.[i] The court further stated that, an owner of land is entitled to have the right of lateral support to remain in the state in which it was placed by nature, supported and protected by adjoining soil. The right is a right of property annexed to the land, to which the owner is as much entitled as to the land itself.  If an adjoining owner while excavating on his own land removes a support causing injury to his neighbor’s soil is liable without proof of negligence.  If, in the execution of public works under authority of law, excavations are made, and the soil of an individual gives way in consequence of being deprived of its lateral support, the individual is entitled to compensation for the resulting damage.

[i] 170 Ore. App. 118 (Or. Ct. App. 2000)

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