RIGHTS IN LAND - LATERAL SUPPORT - STATUTE INCREASING COMMON LAW RIGHTS AND DUTIES - CONSTITUTIONALITY

Authors

Abstract

Plaintiff sued for damages to his building which collapsed during excavating operations on defendant's adjoining land. A Michigan statute makes it the duty of land owners excavating to a depth of 12 feet or more below grade level to furnish sufficient lateral support to protect adjacent land and structures thereon from injury "due to the removed material in its natural state, or due to the disturbance of other existing conditions caused by such excavation," and imposes liability for injuries due to failure to comply with the act. The excavation on defendant's land, reaching a depth of 14 feet below grade level, had been completed without injury to plaintiff's land or building. Thereafter, in pumping water from the excavation, water and soil had run from under plaintiff's land; attempts had been made to stop the seepage of water by steel piles, the driving of which caused considerable vibration. Three days after the pile driving began, plaintiff's building collapsed. From judgment for plaintiff, defendant appealed, claiming the statute is unconstitutional in that it either deprives an owner of the right to utilize his land by the erection of a building thereon or subjects him to liability for damages occurring to adjoining land and buildings without any right on his part to do the things necessary to prevent such damage; and that in any case the statute does not apply to the facts of the present case as the collapse was not due to the excavating but to the pumping of water, the insubstantial character of the soil (which was cobblestone), and the vibration caused by the pile driving. Held, that although the statute must be strictly construed since it creates duties unknown to the common law, defendant's acts fall within its terms. The pumping of water and driving of piles were necessitated by and incidental to the excavation and resulted in a "disturbance of . . . conditions." Plaintiff's building had stood for 20 years and would undoubtedly have continued to stand except for defendant's operations. The statute is not unconstitutional for lack of an express license to the excavator to go on the adjoining land for the purpose of taking the necessary protective measures, as the equity court is given full jurisdiction and defendant might have appealed to it if plaintiff had refused permission to go on his land. Judgment for plaintiff affirmed but case remanded for modification in amount of damages. Tillson v. Consumers' Power Co., 269 Mich. 53, 256 N. W. 801 (1934).

Recommended Citation

RIGHTS IN LAND - LATERAL SUPPORT - STATUTE INCREASING COMMON LAW RIGHTS AND DUTIES - CONSTITUTIONALITY, 33 Mich. L. Rev. 812 (1935).
Available at: https://repository.law.umich.edu/mlr/vol33/iss5/15