lies by A against B, because it was A's own fault that he built his house so near to B's land, for he by his act cannot hinder B from making the best use of his land that he can. Wilde v. Minsterley, 2 Rolle, Abr. (Eng.) 564. On the authority of the foregoing cases it has been said by Chief Baron Comyns that an action on the case does not lie "if a man build an house, and make cellars upon his soil, whereby an house newly built in an adjoining soil falls down." Comyns's Dig., Action upon the Case for a Nuisance (C). "There are indeed two or three early cases in which actions appear to have been sustained for undermining houses by digging on adjoining land. Slingsby v. Barnard (1616) 1 Rolle Rep. 430, 81 Eng. Reprint, 586; Smith v. Martin (1672) 2 Wms' Saund. 400, 85 Eng. Reprint, 1210; Barwell v. Kensey (1683) 3 Lev. 171, 83 Eng. Reprint, 635; 1 Mallory, Mod. Entries, 195. But in Slingsby v. Barnard and in Smith v. Martin the objections made were not to the right to maintain the action, but only to particulars in the form of the declaration; and in Barwell v. Kensey, the declaration, as construed by the majority of the court, alleged not merely digging near the plaintiff's foundation, but digging that foundation itself." Gilmore V. Driscoll (1877) 122 Mass. 199, 23 Am. Rep. 312, 14 Mor. Min. Rep. 37.

Another case in which the excavator was held liable is Jeffries v. Williams (1850) 5 Exch. 792, 155 Eng. Reprint, 347. But in that case the defendant was a trespasser on the land; and the rule that an owner of land or one claiming under him may excavate without incurring liability for injury to adjoining buildings was not questioned. That case was followed in Bibby v. Carter (1859) 4 Hurlst. & N. 153, 157 Eng. Reprint, 795.

The conclusion reached in Wilde v. Minsterley (Eng.) supra, has been adopted in subsequent decisions, and the general rule has been established that the right of an owner of land in its natural state to the lateral support of the soil of adjoining owners does not extend to buildings on his land. Consequently, in the absence of

Alabama. Moody v. McClelland (1863) 39 Ala. 45, 84 Am. Dec. 770; Myer v. Hobbs (1876) 57 Ala. 175, 29 Am. Rep. 719; Parker v. Hodgson (1911) 172 Ala. 632, 55 So. 818.

California.-Aston v. Nolan (1883) 63 Cal. 269; Sullivan v. Zeiner (1893) 98 Cal. 346, 20 L.R.A. 730, 33 Pac. 209.

Connecticut.-Ceffarelli v. Landino (1909) 82 Conn. 126, 72 Atl. 564; Barnes v. Waterbury (1909) 82 Conn. 518, 74 Atl. 902. See also Roath v. Driscoll (1850) 20 Conn. 533, 52 Am. Dec. 352; Huber v. H. R. Douglas (1919) 94 Conn. 167, 108 Atl. 727; Canfield Rubber Co. v. Leary (1923) 99 Conn. 40, 121 Atl. 283.

Delaware. Stimmel v. Brown (1885) 7 Houst. 219, 30 Atl. 996; Moore v. Anderson (1915) 5 Boyce, 477, 94 Atl. 771; Wigglesworth v. Brodsky (1917) 7 Boyce, 586, 110 Atl. 46.

Illinois. Mamer v. Lussem (1872) 65 Ill. 484; Quincy v. Jones (1875) 76 Ill. 231, 20 Am. Rep. 243; Noceto v. Weill (1911) 166 Ill. App. 162; Best Mfg. Co. v. Peoria Creamery Co. (1922) 226 Ill. App. 60, affirmed in (1923) 307 Ill. 238, 138 N. E. 684. See also Snyder v. Sass (1912) 174 Ill. App. 205.

Indiana. Moellering v. Moellering v. Evans (1889) 121 Ind. 195, 6 L.R.A. 449, 22 N. E. 989; Bohrer v. Dienhart Harness Co. (1898) 19 Ind. App. 489, 49 N. E. 296; Payne v. Moore (1903) 31 Ind. App. 360, 66 N. E. 483, 67 N. E. 1005. See also Schmoe v. Cotton (1906) 167 Ind. 364, 79 N. E. 184.

Iowa. Starrett v. Baudler (1917) 181 Iowa, 965, L.R.A.1918B, 528, 165 N. W. 216. See also Jamison V. Myrtle Lodge (1913) 158 Iowa, 264, 139 N. W. 547, 6 N. C. C. A. 900.

Kansas.-Winn v. Abeles (1886) 35 Kan. 85, 57 Am. Rep. 138, 10 Pac. 443; Jones v. Hacker (1919) 104 Kan. 187, 174 Pac. 424.

Kentucky. - Covington v. Geyler (1892) 93 Ky. 275, 19 S. W. 741; Clemens v. Speed (1892) 93 Ky. 284, 19 L.R.A. 240, 19 S. W. 660. Compare Smith v. Howard (1923) 201 Ky. 249, 256 S. W. 402.

Maryland. Vandegrift v. Boward (1916) 129 Md. 140, 98 Atl. 528.

Massachusetts.-Thurston v. Hancock (1815) 12 Mass. 220, 7 Am. Dec. 57; Foley v. Wyeth (1861) 2 Allen, 131, 79 Am. Dec. 771; Gilmore v. Driscoll (1877) 122 Mass. 199, 23 Am. Rep. 312, 14 Mor. Min. Rep. 37; Kronberg v. Bulle (1924) 247 Mass. 325, 142 N. E. 61.

Michigan. Hemsworth v. Cushing (1897) 115 Mich. 92, 72 N. W. 1108; Bissell v. Ford (1913) 176 Mich. 64, 141 N. W. 860; Horowitz v. Blay (1916) 193 Mich. 493, 160 N. W. 438; Collias v. Detroit & N. Bldg. & L. Asso. (1922) 220 Mich. 207, 189 N. W. 866.

Minnesota.-See Schultz v. Bower (1894) 57 Minn. 493, 47 Am. St. Rep. 630, 59 N. W. 631.

Missouri. Charless v. Rankin (1856) 22 Mo. 566, 66 Am. Dec. 642; Obert v. Dunn (1897) 140 Mo. 476, 41 S. W. 901, 3 Am. Neg. Rep. 233; Walters v. Hamilton (1898) 75 Mo. App. 237; Carpenter v. Reliance Realty Co. (1903) 103 Mo. App. 480, 77 S. W. 1004; Flanagan Bros. Mfg. Co. v. Levine (1910) 142 Mo. App. 242, 125 S. W. 1172. See also Handlan v. McManus (1890) 42 Mo. App. 551, 18 Am. St. Rep. 533; Victor Min. Co. v. Morning Star Min. Co. (1892) 50 Mo. App. 525; Gates v. Fulkerson (1908) 129 Mo. App. 620, 107 S. W. 1032; Burk Bros. Meat & Provision Co. V. Foster (1911) 159 Mo. App. 537, 141 S. W. 442; Craig v. Kansas City Terminal R. Co. (1917) 271 Mo. 516, 197 S. W. 141.

New Jersey. See McGuire v. Grant (1855) 25 N. J. L. 356, 67 Am. Dec. 49; Pullan v. Stallman (1903) 70 N. J. L. 10, 56 Atl. 116, 15 Am. Neg. Rep. 125.

New York.-Booth v. Rome, W. & O. Terminal R. Co. (1893) 140 N. Y. 267,

24 L.R.A. 105, 37 Am. St. Rep. 552, 35 N. E. 592; White v. Nassau Trust Co. (1901) 168 N. Y. 149, 64 L.R.A. 275, 61 N. E. 169; Panton v. Holland (1819) 17 Johns. 92, 8 Am. Dec. 369. See also Hay v. Cohoes Co. (1849) 2 N. Y. 159, 51 Am. Dec. 279; Radcliff v. Brooklyn (1850) 4 N. Y. 195, 53 Am. Dec. 357; Auburn & C. Pl. Road Co. v. Douglass (1854) 9 N. Y. 448; Marvin v. Brewster Iron Min. Co. (1874) 55 N. Y. 556, 14 Am. Rep. 322, 13 Mor. Min. Rep. 40; Lasala v. Holbrook (1833) 4 Paige, 169, 25 Am. Dec. 524; Farrand v. Marshall (1853) 19 Barb. 380, subsequent appeal in (1855) 21 Barb. 409; Finegan v. Eckerson (1898) 32 App. Div. 233, 52 N. Y. Supp. 993; Bergen v. Morton Amusement Co. (1916) 95 Misc. 647, 159 N. Y. Supp. 935, affirmed in (1917) 178 App. Div. 400, 165 N. Y. Supp. 348, which is affirmed in (1919) 226 N. Y. 665, 123 N. E. 855. Oregon. Weiss v. Kohlhagen (1911) 58 Or. 144, 113 Pac. 46.

Pennsylvania.-McGettigan v. Potts (1892) 149 Pa. 155, 24 Atl. 198; Matulys v. Philadelphia & R. Coal & I. Co. (1901) 201 Pa. 70, 50 Atl. 823, 21 Mor. Min. Rep. 745; Sharpless v. Boldt (1907) 218 Pa. 372, 67 Atl. 652; Jones v. Greenfield (1904) 25 Pa. Super. Ct. 315; McClelland v. Schwerd (1907) 32 Pa. Super. Ct. 313. See also Fyfe v. Turtle Creek (1903) 22 Pa. Super. Ct. 292; Cooper v. Altoona Concrete Constr. & Supply Co. (1911) 231 Pa. 557, 80 Atl. 1047 (see also opinion of superior court on appeal from judgment rendered on second trial (1913) 53 Pa. Super. Ct. 141); McKeand v. Skirboll (1913) 55 Pa. Super. Ct. 28; Durante v. Alba (1920) 266 Pa. 444, 9 A.L.R. 485, 109 Atl. 796; Home Brewing Co. v. Thomas Colliery Co. (1922) 274 Pa. 56, 117 Atl. 542; Workingman's Sav. Bank & T. Co. v. Pittsburgh (1925) 284 Pa. 248, 131 Atl. 283; Alexander v. Conlon (1919) 72 Pa. Super. Ct. 1. See also Freseman v. Purvis (1912) 51 Pa. Super. Ct. 506; Baltz v. Buckwalter (1913) 23 Pa. Dist. R. 84.

Texas.-See Simon v. Nance (1907) 45 Tex. Civ. App. 480, 100 S. W. 1038. Vermont.-Beard v. Murphy (1864) 37 Vt. 99, 86 Am. Dec. 693; Graves v. Mattison (1895) 67 Vt. 630, 32 Atl. 498. See also Hatch v. Vermont C. R. Co. (1852) 25 Vt. 63; Richardson v. Vermont C. R. Co. (1853) 25 Vt. 465, 60 Am. Dec. 283.

Wisconsin. Laycock v. Parker (1899) 103 Wis. 177, 79 N. W. 327; Hickman v. Wellauer (1919) 169 Wis. 18, 171 N. W. 635; Christensen v. Mann (1925) 187 Wis. 567, 41 A.L.R. 1192, 204 N. W. 499.

England. Wyatt v. Harrison (1832) 3 Barn. & Ad. 871, 110 Eng. Reprint, 320; Partridge v. Scott (1838) 3 Mees. & W. 220, 150 Eng. Reprint, 1124, 13 Mor. Min. Rep. 640; Gayford V. Nicholls (1854) 9 Exch. 702, 156 Eng. Reprint, 301. Canada. Backus v. Smith (1880) 5 Ont. App. Rep. 341, reversing (1879) 44 U. C. Q. B. 428.

(It is to be noted that cases from some of the foregoing jurisdictions are cited infra in subdivision II. This does not necessarily show a conflict of decisions in a particular jurisdiction, since the cases cited in subdivision II. were decided under particular statutes or ordinances, to some extent modifying the general rule.)

The statement in the leading case of Wilde v. Minsterley (1639) 2 Rolle, Abr. (Eng.) 564, that the owner of the house cannot recover, because it is his own fault that he built his house so near the land of the adjoining owner, appears to have been incorrect

ly referred to as the reason for the above rule. Clearly the right of a landowner to build near his boundary is undeniable. Frequently necessity compels him to do so. Schultz v. Byers (1891) 53 N. J. L. 442, 13 L.R.A. 569, 26 Am. St. Rep. 435, 22 Atl. 514. The statement in Wilde v. Minsterley, (Eng.) supra, cannot, therefore, be construed as denying this right. Its effect is merely that the owner of the building ought to foresee the probable use of the adjoining land by his neighbor (Gillies v. Eckerson, (1904) 97 App. Div. 153, 89 N. Y. Supp. 609); and that if he builds near his boundary he assumes the risk of his position (Thurston v. Hancock (1815) 12 Mass. 229, 7 Am. Dec. 57; Dunlap v. Wallingford (1854) 1 Pittsb. (Pa.) 127). Obviously, a statement to the effect that he is not allowed to recover for an injury resulting from his neighbor's acts, because he ought to have known that he would not be allowed to recover, is not an answer to the question why he is not allowed to recover. A partial answer to that question is that a contrary rule "would put it in the power of a lot owner, by erecting heavy buildings on his lot, to greatly abridge the right of his neighbor to use his lot. It would make the rights of the prior occupant greatly superior to those of the latter." Northern Transp. Co. v. Chicago (1879) 99 U. S. 635, 25 L. ed. 336. It may be pointed out that the effect of the rule which enables one by excavating on his own land to destroy a building on the adjoining land makes the rights of the owner of the building inferior to those of the excavator. But the fact is that any adjustment of the rights of two adjoining landowners seems necessarily to involve a restriction of the rights of one of them. In determining on whom should fall the loss arising from an exercise of legal rights by both, the courts have deemed it inexpedient to place the burden upon the person who causes the excavation to be made. This consideration of expediency seems to be the foundation of the rule. But that such an adjustment of the rights of adjoining landowners has not proved alto

gether satisfactory, particularly as applied to contiguous lots in large cities, appears not only from the statutory modifications of the rule, but from the qualifications which have been ingrafted upon it.

In Canfield Rubber Co. v. Leary (1923) 99 Conn. 40, 121 Atl. 283, it appeared that the defendant Leary, a contractor, was engaged in constructing a highway sewer in the city of Bridgeport. The plaintiff brought suit to recover damages for injuries to its building and contents, alleged to have been caused by the negligent failure of the defendants to provide proper and necessary lateral support for its property during the construction of the sewer in front of its premises. In affirming a verdict for the plaintiff, the court said: "It may be well to point out distinctly that the rule which the cases lay down does not make the excavator, an adjoining landowner, an insurer of his neighbor's buildings. It goes no further than to require him to exercise a reasonable degree of skill and care to avoid injuring them; and it seems that such a rule is necessary in order to secure to every landowner the fullest possible enjoyment of his rights to improve his own property. Courts, and in some jurisdictions legislators, have recognized that as land becomes valuable for building purposes, the common-law rule of property denying any right of lateral support to buildings cannot be carried to the point of licensing the adjoining owner to excavate regardless of the consequences to his neighbor's buildings, without, in effect, depriving the latter of his property right of building up to the dividing line, or, as in this case, up to the highway line. It is no longer possible under modern urban conditions to say that an owner who builds to the line does so at his peril; and, on the other hand, it is not possible to say that his neighbor shall not thereafter excavate near the adjoining buildings except at his peril. Between equal and conflicting property rights, a compromise has been effected by the rule in question, and, in applying it, its purpose should be kept in view; to wit, to secure to each of the adjoining owners in equal

measure the fullest possible enjoyment of his property rights. The duty of furnishing or maintaining lateral support to the adjoining soil in its natural state is an absolute one, and arises out of ownership, or permanent or temporary control, of adjoining land, and this duty may introduce a complicating factor into the situation, even though the land is built upon. Laying aside that possibility, the qualified duty of temporarily maintaining or furnishing lateral support to soil burdened with buildings does not impose a servitude on the land or limit the owner's right to improve it at will. It does require him, in carrying out his improvements, to use reasonable care and skill, and to that extent it is a limitation on the manner in which he may perform the work of improving his land. It is of course impossible to define in advance what will constitute reasonable care in a given case; but the authorities seem to justify the foilowing general observations: The excavating owner is required, in the first place, to use reasonable care to find out in advance, or as the work progresses, whether it is liable to cause damage to his neighbor's building; and, if so, to notify the owner in time to give him an opportunity to protect the building against damages which cannot be wholly averted by the exercise of reasonable care in the performance of the work. Reasonable care in the performance of the work will generally require no more than the adoption of commonly used and approved methods of preventing the adjoining soil burdened with buildings from moving into or toward the excavation. After due notice, the owner of the building must protect himself against risks caused by its additional weight upon the soil, which cannot be averted by such methods."

In Walker v. Strosnider (1910) 67 W. Va. 39, 67 S. E. 1087, 21 Ann. Cas. 1, the court said: "The duty on the part of the excavator, as regards buildings on adjacent land, when no right of lateral support therefor has been acquired, results from the relative rights of the parties and legal principles governing conduct. As an adjacent owner

varied, in repect to time and manner, and previous notice given of the intention to alter the condition of the property, the extent of the alteration, the manner in which it is to be done, and the time, so as to afford the owner of the building an opportunity to take such measures for its protection as he might see fit to adopt. The rule requiring care is not based upon any right of property in adjacent land for support of buildings or otherwise. It is simply a restraint upon reckless and unnecessary conduct in respect to the use of such adjacent property, fraught with danger to the building. Its justification is found in a well-established principle, having wide application in English and American jurisprudence, and its application to cases of this kind is as well settled as the doctrine that the owner of a building has no right of support therefor in the land of an adjacent owner. The two propositions are asserted, side by side, in the same decisions, and in practically all of them."

has no right of support for his buildings, he has no property right in the form or nature of an easement in his neighbor's lands. If, therefore, the latter remove a part of his land so as to endanger the building of the former, he destroys no property right,-takes away nothing that belongs to the former. It does not follow, however, that he owes him no duty in the premises. Though he has complete dominion and power over his own land, and may do with it what he pleases, he is nevertheless bound, agreeably to the maxims, 'sic utere tuo ut alienum non lædas' and 'prohibetur ne quis faciat in suo quod nocere posit alieno,' to use his property in such a manner as not to injure his neighbor's. This gives the latter no property right in the land of the former. It merely gives a personal right against him. It places a restraint upon his conduct. For any lawful purpose, he may use his property, but he must use it in a lawful, that is, careful, manner. In other words, he must execute the work, as far as is reasonably practicable, and not unduly burdensome, with a view to the safety of the buildings on the adjacent property. But for this rule, he might go at any hour of the day or night, without having given any notice to the adjoining owner indicating when, how, or to what extent, he intended to alter the condition of his property, and make an excavation for a cellar along the entire wall of a heavy, valuable building, knowing it would fall in consequence thereof, and yet intending to replace, the earth removed by a wall. He would be under no duty to vary the mode or manner of his work in the slightest degree, in respect to the time thereof or otherwise, in the interests of the safety of the building. Having thus made the excavation, he could build his wall at his leisure, and would be under no duty to prosecute the work diligently, even though it should be apparent that delay in this part of the work would endanger the building. Such conduct would be reckless, careless, and wanton, in view of the ease with which the mode of work could be

b. Injury not caused by weight of building.

v.

The peculiarity of the law of lateral support, which, as has been seen, allows recovery for injuries to the soil, but not to buildings erected thereon, has given rise to a qualification of the general rule. This qualification, which is recognized in a number of decisions, is a sequence of the proposition that by building on his land the owner does not forfeit his right to have his soil supported (see Hunt v. Peake (1860) Johns. V. C. 705, 70 Eng. Reprint, print, 603; Stevenson Wallace (1876) 27 Gratt. (Va.) 77), at least if the lateral pressure is not increased by the building. As the duty to support the soil is not destroyed, the question arises whether the person causing the excavation to be made is liable for damage to a structure erected on the adjoining soil, where the injury is due solely to the removal of the support of such soil, and not to the weight of the structure. According to several English decisions, the injury to the structure is in such case a direct consequence of the breach of duty to sup