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] However, for the entitlement of punitive and exemplary damages the owner will have to show at least an independent cause of action for compensatory damages.[iv] Thus, award of actual or compensatory damages can be said as a prerequisite to a recovery of punitive damages.[v]
In State v. Winters, 170 Ore. App. 118 (Or. Ct. App. 2000), it was observed that the right of lateral support is a part of an owner’s property in the land, as much so as his/her right of user or of exclusion. When the owner is deprived of the right, such a deprivation is considered as invasion of property. The owner whose property is thus considered as invaded will be entitled to compensation for the resulting damages.
In another case called Franc v. Bethel Holding Co., 73 Conn. App. 114 (Conn. App. Ct. 2002), the plaintiffs adjoining landowners claimed for damages as an excavation done by the defendant nursery in its property caused loss of lateral support for the plaintiffs’ property. The lower court awarded compensatory and punitive damages to the plaintiffs of an amount that represented the diminution of value of the plaintiffs’ land. The defendant nursery appealed the order of lower court claiming that the court awarded damages after valuing the parcels of plaintiffs together. Also, the defendant appealed the granting of punitive damages. The defendant claimed that the award of punitive damages were excessive as the plaintiffs failed to show adequate evidence of recklessness on the defendant’s part, and that the award was in excess of the plaintiffs’ attorney’s fees and costs.
The appellate court affirmed the trial court’s judgment on all other respects except to the award of punitive damages. Because the court found that the award of punitive damages was unsupported by evidence the case was remanded for a new hearing in damages limited to the issue of punitive damages.
[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] Id.
[v] Id.