trial should not be granted was discharged.15 And in the South Carolina case of Gray v. Givens, 16 in which it appeared that the exclusive possession had continued for 16 years,

But where the tenant in common is already in possession of the premises, the mere acceptance of a deed to the whole, without any apparent change of possession or occupation, will not have the effect of rendering such possession adverse. Thus, where one of the three daughters of decedent, who were the tenants in common of the fee of his farm subject to a life estate in his widow, while living with the latter upon the land, accepted from her a deed to a portion thereof without a warranty, and for a nominal consideration, and thereafter occupied the premises claiming to hold them adversely but without any apparent change of occupation or possession and with no notice of a hostile claim to her co-tenants, it was held, that as her grantor had the right to convey the life estate, both the deed and the possession under it, were entirely consistent with the title of the co-tenants and would not operate an ouster. 13 And the purchase by a widow, who was tenant in common of certain lands with the heirs of her husband, of an outstanding tax-title thereto of which her husband had been ignorant and the securing of quitclaim deeds to the interests of all the other heirs except plaintiff will not render her possession adverse to him.14

4. Exclusive Possession-Taking Rents and Profits. It is questionable how far the exclusive possession of the common property by a tenant in common taking the rents and profits, without accounting therefor to his co-tenants, will be regarded as adverse to their interests, however long continued it may be. In an early case where an estate in common had been partitioned and allotted to one of the co-tenants during the life of another, and such tenant per autre vie held over after the determination of the life estate for a period of 36 years without any account being demanded or any payment of rents and profits, Lord Mansfield told the jury that they might presume an adverse possession and ouster and a rule to show cause why a new 13 Culver v. Rhodes, 87 N. Y. 348.

14 Richards v. Richards, 42 N. W. Rep. 954, 75 Mich.

0.

ouster may be presumed from the mere fact of a very long exclusive possession as in the case of Fishar v. Prosser. It may

be that if this case were before a jury it might be within their discretion to find an ouster. But I cannot venture to exercise an arbitrary discretion. If I could, I should incline to exercise it in favor of the defendant. I must adopt some rule and what shall it be? Twelve, sixteen or eighteen years? I can think of no other than that bar which is made to quiet almost every other claim and give efficacy to long possession-the lapse of twenty years." This rule has been recently approved." Where the grantee of an undivided interest ignorantly supposing that his deed conveyed the whole property to him, at once took possession of the premises which. were wild prairie land, broke it up and fenced it in, paid the back taxes, built a farm house and barns, stables, and cribs, and rented it for six years and collected the rents and afterwards moved upon it and occupied it as a homestead, and such possession continued for more than 20 years until the land was worth $40 to $50 an acre without any demand for an accounting by his co-tenants, two of whom lived near the land, his possession was held to be adverse and their claim was barred.18 But where a son by permission of his mother entered upon her dower land, and after her death continued in possession of the same for more than 35 years, it was held, in the absence of evidence of any act amounting to a total denial of the rights of the other co-parceners that he acquired no title by adverse possession. 19 And an ouster will not be implied from a sole possession of the premises and an exclusive reception and enjoyment of the rents and profits even if continued for the statutory period, unless it appears to have been with

the knowledge and implied acquiescence of the other tenant in common.20

Where the common property is a wharf, the possession of one tenant of the entire wharf necessarily excludes the other tenants because it is incapable of separate occupation, and amounts to an ouster .21 But where a tenant in common put the plaintiff into possession of the common property in 1873, under a contract to make him a deed for the whole and plaintiff continued in possession paying taxes and improving the property, some portion of which was inclosed by a substantial fence, until 1887, though she did not receive a deed until 1883, it was held that such possession could not be regarded as an ouster of the co-tenants until the deed was passed, and that, as the statutory period had not elapsed between that time and the bringing of the suit, their claim was not barred.2 And if the exclusive appropriation of the benefits of the common property are accompanied by explanatory facts which negative the intention of acquiring title, such possession, of course, cannot be regarded as adverse. Thus where one of several tenants in common conveyed the land excepting and reserving the interest of his co-tenants, and the grantee took possession under an agreement on his part with the grantor, to pay the taxes, on behalf of the co-tenants, such possession without a subsequent ouster cannot be regarded as adverse to them.23

22

5. Making Permanent Improvements. Whether the making of permanent improve'ments by a tenant in common in possession is a sufficient notice of an intent to acquire title. To make his possession adverse as against his co-tenant, is a question about which some confusion has arisen. In Bennet v. Clemence, 24 the Massachusetts court held that a building erected, principally upon land of one tenant in common, adjoining the common property, a small portion of it being placed on the common property but not enough to be used separately with any advantage to the occupant, was such an exclusive appropriation of a part of the land to his Own use, as would amount to an ouster of his co-tenant. Mr. Freeman in commenting

21 Annely v. DeSaussure, 2 S. E. Rep. 490. 22 Stoddard v. Weston, 6 N. Y. Supp. 34. 23 Transportation Co. v. Gill, 111 Ill. 541. 24 6 Allen, 18.

upon this case and quoting the language of the opinion, which is broader than the facts, out of which the controversy arose, justify, assumes that the decision is authority for the proposition, that "the erection of a permanent structure would be evidence of an "ouster and expresses a doubt as to the correctness of the doctrine.25 If the decision of the court went to that extent, there could be no question but that the doubt expressed by the learned author is well founded. But the decision can be no broader than the facts on which it is based, and the fact was that a small portion only of the building was placed on the common property, and not enough to be used separately. Of this encroachment, which, while useful to the tenant who owned the adjoining lot and erected the encroaching building, from its nature necessarily excluded the co-tenant from any use of the portion of the premises covered by it, the court say: "Such an exclusive appropriation of a part of the land to his own use

would be evidence of an ouster." So interpreted this decision is not in conflict with the later cases. 26

St. Louis, Mo.

WM. L. MURfree, Jr.

25 Freeman on Co-tenancy and Partnership, § 240. 26 See McCloskey v. Barr, 42 Fed. Rep. 609, and Larraway v. Larue, 63 Iowa, 407, 19 N. W. Rep. 242.

NEGLIGENCE-EXCAVATION ON LAND-EVI

DENCE.

SCHULTZ V. BYERS.

Court of Errors and Appeals of New Jersey, Aug. 10, 1891. Excavation by an owner on his own land adjoining another's building, causing damage, without his knowledge, or previous notice to him, is evidence of want of care in doing the work.

SCUDDER, J.: The declaration is framed on the idea that the plaintiffs' land, dwelling-house, and building were entitled to support by the adjacent land of the defendant, and that by wrongfully digging away and removing such support the damage complained of was caused, whereby a right of action accrued. A demurrer was filed to this declaration, but it appears to have been waived and the cause was tried on a plea of the general issue and proofs. With this form of pleading, leaving the declaration unaltered, there is difficulty in holding the case in court to determine the exact cause of controversy between these parties. But as the court at the circuit heard and decided

the cause as if the pleadings were amended to present the issue, and the question is important, it will be considered as if it was there tried and decided. It is almost unnecessary to say that the juxtaposition of lands gives no right of support to buildings erected thereon, unless conferred by grant, conveyance, or statute. As this is a case of recent erection of the building alleged to have been injured, the question of prescription, or lapse of time sufficient to infer a grant or conveyance, does not arise, nor has such right ever been conceded in our courts. The principle of the lateral support of lands and buildings was settled in this State by the case of McGuire v. Grant, 25 N. J. Law, 356, (1856). As to land in its natural condition, there is a right to such support from the adjoining land; as to buildings on or near the boundary line, injured by excavating on the adjoining land, there is no right of action, in the absence of improper motive, or of carelessness in the execution of the work. This is the law as established by the cases prior to that decision. It has remained the unquestioned law in this State since that time, and it has been confirmed by many cases since in other courts. Some of the most recent are very valuable for reference, notably Gilmore v. Driscoll, 122 Mass. 199; Dalton v. Angus, L. R. 6 App. Cas. 740, 3 Q. B. Div. 85, where a most thorough examination of the subject will be found. Although this law seems to give the owner of a building put upon his own land, in a manner most advantageous and sometimes necessary to make it available for his use, especially in a closely built city, but little protection against the choice or caprice of another who may own the adjoining land, yet it will be observed he is not entirely without protection. Neither can say, "It is lawful for me to do what I will with my own," as has been sometimes loosely stated in discussing this subject, and that it is a man's folly to build near the dividing line between his land and that of his neighbor, for it is more frequently his necessity that compels him to do so. rights of the parties are equal, and are subject to modification by the conflicting right of each other. Our statute relating to party walls (Revision, 809) shows that in some cases it has been thought necessary to fix authoritatively the mutual concessions and limitations in the rights of adjoining land owners. This statute only applies where the excavation is more than eight feet in depth, while in this case the digging is but seven feet deep; but it is a recognition of the reciprocal right and duty which sometimes grow out of the mere vicinage of property. The maxim, sic utere tuo ut alienum non lædas, is often invoked in such cases, and is of very wide application. In this case the limitation of this principle is that, if the owner of adjoining land would dig down beside the foundation of his neighbor's house, he must exercise his right to do so, not carelessly, but cautiously. There was no proof, or offer to prove, at the trial, that the defendant was negligent in digging his cellar, whereby the plaintiffs' house was caused to settle,

The

and the walls to crack, beyond the mere fact that this was the result. This result alone was not sufficient, for it may have been caused by defects in the plaintiffs' house. The special ground of complaint is that it was done without the knowledge of the plaintiffs, and without notice to them, by which they might have been enabled to protect their property. It is argued that the defendant thereby took upon himself the whole risk of injury to the building. The question whether such omission to give notice, under the circumstances stated, is evidence of carelessness in the execution of the work, is an important one, and it cannot be said to be definitely settled. The case most frequently cited in this country in favor of requiring such notice is Lasala v. Holbrook, 4 Paige, 169-173, (1833). In this case Chancellor Walworth, while affirming the right of the owner of adjacent land to excavate for improvement on his own land, using ordinary care and skill, without incurring damages for injury to a building supported thereby, says: "From the recent English decisions it appears that the party who is about to endanger the building of his neighbor, by a reasonable improvement on his own land, is bound to give the owner of the adjacent lot proper notice of the intended improvement, and to use ordinary skill in conducting the same." He cites Peyton v. Mayor, etc., 9 Barn. & C. 725, 4 Man. & R. 625; Walters v. Pfeil, 1 Moody & M. 362; Massey v. Goyder, 4 Car. & P. 161. In Peyton v. Mayor, etc., it was held that the plaintiff could not recover, because the defendant had not given notice of his intention to pull down his supporting house, that not being alleged in the declaration as a cause of the injury. Lord Tenterden says, because of the failure to allege want of notice, the action cannot be maintained upon the want of each notice, supposing that, as a matter of law, the defendants were bound to give notice beforehand, upon which point of law we are not in this case called to give any opinion. In Massey v. Goyder, where notice was given to the occupier of adjoining premises of an intention to pull down and remove the foundation of a building, it was held that he was only bound to use reasonable and ordinary care in the work, and not to secure the adjoining premises from injury. In Chadwick v. Trower, 6 Bing. N. C. 1,8 Scott, 1, (1839), it was decided in the exchequer chamber that the mere circumstance of juxtaposition does not render it necessary for a person who pulls down a wall to give notice of his intention to the owner of an adjoining wall. This case was first considered in 3 Bing. N. C. 334, and cited in 2 Scott, N. R. 77, and 5 Scott, N. R. 119. In the argument, when it was urged that, if it be a duty imposed on a party not to do work so incautiously as to injure bis neighbor's rights, and it is clearly a want of proper caution to omit giving such notice as may enable the neighbor to take steps for his own security, Parke, B., replied: "The duty of giving notice in such cases seems to be one of those duties of imperfect obligation which are not enforced by the law." But if it be

a duty effecting property rights, and the breach causes damage, it would seem that the law must afford a remedy. In Brown v. Windsor, 1 Cromp.

& J. 20, Garrow, B., said: "There may be cases where a man, altering his own premises, cannot support his neighbor's and the support, if necessary, must be supplied elsewhere. In such case he must give notice, and then, if an injury occur, it would not be occasioned by the party pulling down, but by the other party neglecting to take due precaution.” There are no later cases that I have found in the English courts which change the rule given in Chadwick v. Trower, and that is therefore supposed to be the present law in England relating to this subject, though the cases above cited refer to support by adjoining buildings. There are very few cases in our country which bear directly on this point. Shafer v. Wilson, 44 Md. 268, is most frequently referred to, after Lasala v. Holbrook, above cited. It is there said that notice to one's neighbor of an intention to make a contemplated improvement of property would seem to be a reasonable precaution in a populous city, where buildings are necessarily required to be contiguous to each other, and improvements made by one proprietor, however skillfully conducted, may be attended with disastrous results to his neighbors, who ought to have the opportunity to protect themselves and property. To the like effect is Beard v. Murphy, 37 Vt. 101. Chancellor Kent (3 Comm. 437) has quoted the case of Lasala v. Holbrook, and this has been referred to in Shafer v. Wilson and elsewhere. Washb. Easem. 434, 435; Shear. & R. Neg. 497; 1 Thomp. Neg. 276; and other text-books, cite these cases, and from such quotations it is impossible to determine how far the requirement of notice has passed into the general law of the courts in this country. None of these cases are of binding authority in this court, and, in a case of doubt like this, we should seek for that result which is most reasonable and just. Where the danger of lose in doing a legal act is not equally balanced, we should lean to that side which most needs protection. Here a mere notice, which can cause but little trouble,to one who is honestly exercising his right of excavating his land next to his neighbor's house, may enable the receiver of notice to shore or prop his wall to prevent its falling, or it may lead to some arrangement by which neither will be injured. It is more than a mere neighborly courtesy to give such notice, because it involves the right of one man to assert his right, regardless of the injury he may cause to his neighbor without such warning. The manner of giving notice may be only such as is reasonable under the circumstances, eitner to the owner of the property, or, if there be difficulty in finding or serving it on him, then it may be given to the tenant or occupant who is interested in protecting the property. Where it can be shown that such owner had knowledge of the improvement that was about to be made, it would not be necessary to prove a formal notice given to him. In this

view of the case, there was error in rejecting the evidence which was offered to show that the defendant gave no notice to the plaintiffs of his intention to excavate the land adjoining the house of the plaintiffs; and the judgment will be reversed.

NOTE.-The question at issue in the principal case, is a narrow one. It is not whether the owner of a lot, who is excavating its soil for a lawful purpose, is liable in damages to an adjacent proprietor for injuries caused by negligence in making such excavation, but simply whether the owner of such lot, who, making such excavations in a manner not in itself negligent, has caused to settle, a building erected on the adjoining lot and deriving support from such soil without having acquired any right to such support, is liable to an action for the injury, simply because he had given no previous notice to the owner of the building of the intended excavation. From a very early period, judicial consideration has been given to the right of support to soil in its natural state, and to artificial structures erected thereon by the soil of adjacent or subjacent lands.

A complete review of the course of decisions in England can be found in the opinions of Baron Pollock in Dalton v. Angus, L. R. 6 App. Cas. 740, and of Chief Justice Gray in Gilmore v. Driscoll, 122 Mass. 199. It is thereby thoroughly settled as the law of Great Britain, that the undisturbed maintenance by an owner of a building erected on the confines of his land, and supported by the soil of adjoining lands for a period requisite to make title by adverse possession, will establish in such owner, a right to that support. While there are conflicting views as to the legal source and character of the right (Dalton v. Angus, supra), all agree that unless acquired, the right cannot be invaded by removal of the supporting wall without liability for the resulting damage. Whether this doctrine has been adopted in this country, may perhaps be open to question.

In the case at hand, however, plaintiffs had not by length of maintenance of their house, acquired any right of lateral support, if they could have done so. But it is settled by the general concurrence of courts administering the common law, that when a building on the land of its owner derives actual support from the soil of adjacent land of another owner, but has acquired no right to such support, the latter owner may, for any lawful purpose, excavate and remove his supporting soil, without any liability for injury occasioned thereby to the building, provided he does not act wantonly or without the exercise of due care and prudence. In the principal case, the excavation was for a lawful purpose, and liability for the injury occasioned will only attach to the owner if his act in excavating was, in the eye of the law, negligent. Negligence is the want of that care which under the circumstances, is due. As the only negligent act charged is the lack of notice, the question herein resolves itself into this: viz:-whether it was defendant's duty to give notice of his excavation to plaintiffs. The able dissenting opinion of Magie, J., shows that there are two sides to the controversy in question, and that neither upon principle nor authority is the conclusion of the majority of the court free from doubt. In order that the student may have before him the argument upon both sides of the question, we here present in part the view of the dissenting judge. Upon principle, the owner in excavating as he has a right to do, is under a duty to do the work with care

and prudence, so as to do no unnecessary injury to the right of the owner of the building in its support on his own land. And there is ample authority for this doctrine, that in removing lateral support even where he has a right to do so, the party removing it, must use due care, and if by his negligence, he inflicts unnecessary damage, he is responsible therefor. Washb. Easem. 437; Panton v. Holland, 17 Johns. 92, 8 Am. Dec. 369; Stevenson v. Wallace, 27 Gratt. 77, 89; Dixon v. Wilkinson, 2 Mc Ar. 425; Dodd v. Holme, 1 Ad. & E. 493; Davis v. R. R. Co., 2 Scott N. R. 74, 1 Man. & G. 799, 2 Eng. Ry. & C. Cas. 308, 1 Drink. 1; Lukin v. Godsall, Peake Ad. Cas. 15: Trower v. Chadwick, 8 Bing. N. C. 334; Austin v. R. R. Co., 25 N. Y. 334; Boothby v. R. R. Co., 51 Me. 318; Shafer v. Wilson, 44 Md. 268, 280; Baltimore, etc. R. R. Co. v. Reaney, 42 Md. 117; Foley v. Wyeth, 2 Allen, 131, 79 Am. Dec. 771; Quincy v. Jones, 76 Ill. 231, 241, 20 Am. Rep. 243; Charless v. Rankin, 22 Mo. 566, 66 Am. Dec. 642; Walters v. Pfeil, 1 Moody & M. 364; Shrieve v. Stokes, 8 B. Mon. 431, 48 Am. Dec. 401; McGuire v. Grant, 25 N. J. L. 356, 67 Am. Dec. 49; Meyer v. Hobbs, 57 Ala. 175, 29 Am. Rep. 719. A failure to perform this duty will be negligence, but negligence cannot be predicated of a failure to give notice, for such a duty is not laid upon him. Neither, it is contended, is the doctrine announced established by authority.

Among the many litigated cases on the subject of lateral support which engaged the English courts, before the separation of this country, none has been discovered in which this doctrine has been even hinted at. In 1833, Chancellor Walworth in dealing with a case not involving this question, made this statement: "From the recent English decisions it appears that the party who is about to endanger the building of a neighbor by a reasonable improvement on his own land, is bound to give the owner of the adjacent lot, proper notice of the intended improvement." Lasala v. Holbrook, 4 Paige 169. To support this statement, he cites Peyton v. Mayor, 9 Barn. & C. 725; Walters & Pfeil, 1 Moody & M. 362, and Massey & Goyder, 4 Car. & P. 161. All these cases were decided in 1829.

It appears that this statement of Chancellor Walworth is the sole basis of the claim that the doctrine contended for is established by authority. The independent opinion of that eminent jurist would go far to establish the doctrine. But as has been seen, no

him. Moreover the cases referred to, do not support his statement, as an examination will reveal.

In Trouer v. Chadwick, 3 Bing. N. C. 334, Baron Parke after quoting the language of Chief Justice Tindal in the court below to the following effect, "as to the allegation that it was the duty of defendant to give notice to plaintiffs of his intention to pull down his wall it is objected, and we think with considerable weight, that no such obligation results as an inference of law from the mere circumstance of the juxtaposition of the walls of defendant and plaintiff," adds, "we also think it impossible to say that under such circumstances the law imposes upon the party any duty to give his neighbor notice."

Notwithstanding this unmistakable deliverance, the statement of Chancellor Walworth commenced and has continued to be cited as expressing the conclusions of English courts on this subject. In the edition of the third volume of Kent's Commentaries which was published in 1840, it is stated that "if the owner of a house in a compact town finds it necessary to pull it down and remove the foundation of his building, and ' he gives due notice of his intention to the owner of he adjoining house, he is not answerable for the in

jury which the owner of that house may sustain by the operation, provided he remove his own with reasonable and ordinary care." This statement was not made in the first edition of that volume, which was published in 1828. From that fact, and from the note to the passage above quoted, it is plain that it was based upon Lasala v. Holbrook, and the English cases of 1829. The case of Chadwick v. Trower was not alluded to. After the decision of Trower v. Chadwick, Gale & Whatley, in their treatise on Easements, discussed the question of the duty to give notice, now contended for, and declared their opinion that, if the observations of Chief Justice Tindal in that case were well founded, no such duty was imposed by law. Those observations were, as we have seen, adopted, and approved by the exchequer chamber. Subsequent authors in this country have expressed views in respect to the duty to give notice such as have been contended for, but they refer for English authority only to the cases of 1829, on which the statement in Lasala v. Holbrook had been based. The case of Chadwick v. Trower is not mentioned. Lawson's Rights, Remedies & Practice, Vol. 6, § 2785, p. 4542, also lays down this doctrine, in the following languge: "He must give notice of his intention so that the owner may have an opportunity to provide against any threatened danger." This and other text works refer to American cases as authority for the doctrine. Of these cases it is thought that there is not a single one justifying the statement..

The cases generally cited are Shrieve v. Stokes, 8 B. Mon. 453; Winn v. Ables, 35 Kan. 85; Shafer v. Wilson, 44 Md. 268. In Shrieve v. Stokes, the question of the obligation to give notice was not raised by the pleadings or the evidence. What was said by the court on the subject was incidental and based on the supposed authority of the English cases of 1829. In Winn v. Ables, the question of duty to give notice was not involved. In Shafer v. Wilson, the question of liability for want of notice was raised. The court below instructed the jury that notice was a duty. In reviewing this instruction, the court above only says that such notice would seem to be a reasonable precaution and bases this statement on Lasala v. Holbrook.

It would therefore seem that the doctrine contended for has not the sanction of authority, and, as the dissenting justice well says, a judicial determination that notice is necessary in such cases cannot prescribe the form of notice or fix the time or provide for constructive notice.

Must the notice be in writing or will verbal notice or knowledge suffice? How shall notice be given to the owner of the building if he be an infant or non compos mentis, or non-resident? Such and other similar questions, the owner when confronted by the rule promulgated by the majority of the court, must determine according to his own view of what is reasonable, but conscious that the jury may disagree with his view and hold him liable. In other words, the argument in behalf of plaintiff seems to confound the rules of neighborly courtesy with the rules of law. Politeness to a neighbor might dictate the giving of notice to him in many instances where the law would not require any.

What is attempted to be settled in this case, is the rule of a law to govern an owner in the use of his undoubted rights therein. We are constrained to think that there is much plausibility and force in the view of the dissenting judge.