Noone v. Price

171 W. Va. 185, 298 S.E.2d 218 (1982)

 

RULE:

As a general rule, a landowner is entitled, ex jure natural, to lateral support in the adjacent land for his soil. Therefore, an excavation, made by an adjacent owner, so as to take away the lateral support, afforded to his neighbor's ground, by the earth so removed, and cause it, of its own weight, to fall, slide or break away, makes the former liable for the injury, no matter how carefully he may have excavated. Such right of support is a property right and absolute.An adjacent landowner is strictly liable for acts of commission and omission on his part that result in the withdrawal of lateral support to his neighbor's property. This strict liability, however, is limited to land in its natural state; there is no obligation to support the added weight of buildings or other structures that land cannot naturally support. However, if land in its natural state would be capable of supporting the weight of a building or other structure, and such building or other structure is damaged because of the subsidence of the land itself, then the owner of the land on which the building or structure is constructed can recover damages for both the injury to his land and the injury to his building or structure. 

FACTS:

A couple bought a house located on the side of a mountain in Glen Ferris, West Virginia. This house had been constructed in 1928 or 1929 by Union Carbide, and in 1964, four years after the couple purchased the house, they became aware that the wall under their front porch was giving way and that the living room plaster had cracked. Their neighbours lived directly below the couple at the foot of the hill in a house that was built in 1912. When the couple discovered that their house was slipping down the hill, they complained to their neighbours that their problem was the result of deterioration in the the neighbour's retaining wall. The neighbours did nothing to repair the wall and the couple repaired the damage to their house at a cost of approximately $6,000. An action for damages was filed for failure to provide lateral support for the plaintiffs' land, and her negligent failure to provide lateral support for their house. The wall was constructed to provide support to the slope upon which their house was built, and that the disrepair and collapse of the wall caused the slipping and eventual damage to their property. The trial court determined that the neighbour owed no duty of lateral support to the adjoining land and granted summary judgment in the neighbour's favor. On appeal, the couple claimed that summary judgment was improperly granted to the neighbors because although the trial court correctly stated the rule of law, it applied it incorrectly to the homeowners' situation. 

ISSUE:

Was the summary judgment proper?

ANSWER:

No

CONCLUSION:

The court held that there was insufficient facts in the record so reversal and remand was required. In addition, the court held that the trial court would have to determine if an adjacent landowner had an obligation only to support his neighbor's property in its raw or natural condition, or if the adjacent landowner was liable for both the damage to the land and the damage to any buildings that might be on the land.

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