
    CONSTRUCTION OF THE STATUTE RELATING TO EXCAVATIONS.
    Court of Appeals for Hamilton County.
    Geo. P. Carrel, Executor, v. The Roche-Brunner Building Co. et al.
    
    Decided, June 4, 1914.
    
      Excavations — Liability to Adjoining Owner — Measure of Damage for Excavating a Greater Depth than Nine Feet — Sections 3784 and 3785.
    1. The statutes of Ohio permit an excavation to the full depth of nine feet without incurring liability, regardless of the depth of adjoining foundation walls.
    2. Where an excavation is made to a greater depth than nine feet, liability for resulting damages to adjoining property is limited to that caused by going below nine feet, and not that caused by tlj.e whole excavation.
    
      Dempsey ■& Nieberding, for plaintiff.
    
      Healy, Ferris & McAvoy, Denis F. Cash and Clyde Johnson, contra.
    
      Franklin T. Cahill for plaintiff in error; John C. Healy, contra.
    
      
      Affirmed by the Supreme Court without opinion, May 4, 1915, “the constitutionality of Sections 3782 and 3783 not being determined.”
    
   By the Court.

The eircuit court of this circuit having put a construction upon Sections 3782 and 3783 of the General Code, then found in Sections 2676 and 2677 of the Revised Statutes, in cause No. 4575, Hosea et al, Ex'rs, v. McGuire, reported in the Court Index of June 2, 1908 (see below), which judgment was affirmed by the Supreme Court in an unreported ease, 81 O. S., 543, this court feels bound by that construction, and the injunction prayed for by plaintiff herein must therefore be refused, and the petition will be dismissed, without prejudice however to an action at law for damages, if any are suffered by plaintiff on account of the excavation contemplated by defendants.

It might be stated that the majority of the court, if this were an open question, would place a different construction upon this statute.

The opinion to which reference is made above was as follows:

4575. Lucy K. R. Hosea et al, Executors, v. Joseph Maguire.

Giffen, J.; Swing, P. J., and Smith, J., concur.

The phrase “and by such excavation” as used in Section 2676, Revised Statutes, means one to a greater depth than nine feet below the curb of the street; and the damage for which this owner is liable is only that which is caused by such greater depth and not that which may be caused by the whole excavation.

This is made plain by Section 2677, Revised Statutes, which expressly allows an excavation to the full depth of nine feet without reference to the depth of adjoining foundation walls and without incurring liability.

The construction contended for by counsel for plaintiff in error would make the defendant in error liable for that which the statute allows as well as that which it forbids.

Judgment affirmed.  