In measuring the damages caused due to removal of lateral support, courts generally try to estimate the cost of restoring the land to its original condition.[i]  If the restoration cost cannot be satisfactorily estimated, the diminution in value has been held to be the correct measure of damages.[ii]

Generally, if courts find that the cost of restoration or repair of the injured premises is less than the cost of diminution in the value of the property, the cost of restoration or repair will be taken to consideration in measuring damages.[iii]  However, if it is found that the injured land owner has no choice other than to make the restoration, the cost of restoration would be the proper measure of damage even though it exceeds the cost of diminution in value, or even the whole value of the property.[iv]

In Mullan v. Hacker, 187 Md. 261 (Md. 1946), the plaintiff filed an action for damages caused to her garage by the neighbor defendant’s negligence in underpinning the garage while excavating on the defendant’s adjacent land.  Although, the wall of the building near which the excavation was done was cracked, that did not remove the defendant’s obligation to exercise due care, and the presence of crack did not free the defendant from liability for damages caused by his negligence.  While measuring damages, the court observed that the actual measure of damages for property is the cost of restoring it, if it can be restored to the condition it was in before the injury without cost disproportionate to the injury.  However, if the cost of restoring is greater than the diminution in the market value, the correct measure is the difference between the value of the property before the injury and after.

In Mullan, an expert’s opinion was taken in measuring the damage.  The expert valued the garage and the court awarded damages accordingly.

[i] Wentworth v. Air Line Pilots Ass’n, 336 A.2d 542 (D.C. 1975).

[ii] Louisville & N. R. Co. v. Colombo, 240 Ky. 102 (1931).

[iii] See Meyer v. City of Rosedale, 84 Kan. 302 (1911); Mullan v. Hacker, 187 Md. 261 (1946)

[iv] Levi v. Schwartz, 201 Md. 575 (1953).