Every owner of land is entitled to lateral support as of right,[i] and any loss of the support will entitle the owner to be compensated by payment of damages.[ii]  Damages like punitive and exemplary damages are also granted to the owner in cases based on removal of lateral support claims.[iii]  Damages are granted based on the depreciation in value of the property and the loss of its use traditionally.

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.[iv]  If the restoration cost cannot be satisfactorily estimated, the diminution in value has been held to be the correct measure of damages.[v]  The measure of damages can be the diminution in the value of the property as a whole, including that of structures injured, if a basis of liability for such injuries is made out.[vi]

Thus, the general rule used to determine the measure of damages where a permanent injury to land has occurred is that the measure of damage is the diminution of value of the land, unless the injury can be repaired at less cost, in which case, the measure becomes that lesser figure.[vii]

In a case namely, Pugel v. Monheimer, 83 Wash. App. 688 (Div. 1 1996) the court awarded damages to the landowner whose property was damaged when a neighbor excavated the adjoining lot and failed to provide adequate lateral support.  The court awarded damages for both reasonable and necessary restoration costs and the permanent diminution in value.

In cases where destruction of property happened, the actual value of that which was destroyed has been taken as the measure of damages.[viii]   Further, courts will value a land at its highest and best use when determining the diminution in value in action for damages relating to an adjoining landowner’s excavation.[ix]

Therefore, it was observed in Gladin v. Von Engeln, 651 P.2d 905 (Colo. Ct. App. 1982) the proper rule to measure damages is that the rule should enable a jury to determine, as near as may be, the actual loss suffered.  Also, in B. A. Mortgage Co. v. McCullough, 590 S.W.2d 955 (Tex. Civ. App. Fort Worth 1979) the court observed that the ultimate aim in measuring damages should be to obtain a just and equitable result, and that the courts should divert from strict adherence to the general rule of measuring damages if the outcome will be unfair or unjust.

[i] Gorton v. Schofield, 311 Mass. 352 (1942).

[ii] State ex rel. Dept. of Transp. v. Winters, 170 Or. App. 118 (2000).

[iii] Barber v. Hohl, 40 N.J. Super. 526 (App. Div. 1956).

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

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

[vi] Newman v. Pasternack, 103 N.J.L. 434 (N.J.Ct. Err & App. 1927).

[vii] B. A. Mortgage Co. v. McCullough, 590 S.W.2d 955 (Tex. Civ. App. Fort Worth 1979).

[viii] Durante v. Alba, 266 Pa. 444, 109 A. 796, 9 A.L.R. 485 (1920).

[ix] Franc v. Bethel Holding Co., 73 Conn. App. 114 (2002).