Right to lateral support is the right of a landowner to physically support his/her land in its natural state by both adjoining land and underground structures. A land owner has the right to be assured that the adjoining land will provide support against any slippage, cave-in or landslide. The right to lateral support is an absolute right. When there is any interference in this right, it is a strict liability in a tort action. A landowner cannot prevent the adjoining landowner from excavating his/her own soil by building a house or building structure near the margin of the land, even though it may endanger the house or building structure. Negligence creates an undue risk of harm to others, and becomes actionable when it is the proximate cause of any injury or damage done. An excavator is bound to exercise reasonable care and caution in conducting the excavation process to avoid negligent injuries caused to the adjoining landowner.
Among the remedies for cause of action based on lateral support, injunction stands first. It is an equitable relief granted in cases with causes of action based on lateral support. In order for a grant of injunction, the plaintiff has to show irreparable damages. Injunction may be granted in cases where the court feels that a mere award of expenses incurred by the plaintiff to the time of the trial would not give him/her adequate relief.[i]
However, injunction may be denied by courts when the cost of the restoration far exceeds the diminution in value; when the award for the diminution in value adequately compensates plaintiffs; and when part of the restoration would require the defendant to perform work on the plaintiffs’ property which could lead to future disputes between parties.[ii]
In Haugen v. Kottas, 2001 MT 274, P14 (Mont. 2001), the Court stated that a property owner does not have the right to erect and maintain an otherwise useless structure for the sole purpose of injuring his neighbor. Such an action will give rise to an action for both injunctive relief and damages. However, in Humphrey v. Mansbach, 265 Ky. 675, 677 (Ky. 1936), it was decided that if a civil action is filed, an aggrieved party can recover only compensatory damages. The adjoining landowner’s actions have no reflection on the aggrieved party’s character as in libel, slander or false arrest, and hence punitive damages will not be provided.
Any loss of lateral support will entitle the landowner to be compensated by payment of damages.[iii] Punitive and exemplary damages are granted to the owner in actions for removal of lateral support.[iv] Usually, damages may be granted based on the depreciation in value of the property and the loss of its use traditionally. The Courts generally try to estimate the cost of restoring the land to its original condition while measuring the damages.[v] If the restoration cost cannot be satisfactorily estimated, the diminution in value has been held to be the correct measure of damages.[vi]
A major objection for allowing prospective damages in lateral support cases is that the excavator is prohibited from justifying damages by restoring the lateral support. However, a party suffering from an injury in the nature of a continuing nuisance may recover damages as often as s/he brings an action.
[i] Gorton v. Schofield, 311 Mass. 352(1942)
[ii] Franc v. Bethel Holding Co., 73 Conn. App. 114(2002)
[iii] State ex rel. Dept. of Transp. v. Winters, 170 Or. App. 118 (2000)
[iv] Barber v. Hohl, 40 N.J. Super. 526 (App. Div. 1956)
[v] Wentworth v. Air Line Pilots Ass’n, 336 A.2d 542 (D.C. 1975)
[vi] Louisville & N. R. Co. v. Colombo, 240 Ky. 102 (1931)