
    EXCAVATION — DAMAGES
    [Hamilton (1st) Circuit Court,
    June 1, 1908.]
    Swing, Giffen and Smith, JJ.
    
      Lucy K. R. Hosea et al. Exs. v. Joseph McGuire.
    Damages for Excavation Limited to Excess over Nine Feet.
    The phrase “by such excavation” in Sec. 2676 R. S. (Sec. 3782 G. C.), construed with Sec. 2677 (3783), limits the recovery of damages to depths greater than nine feet without reference to depth of adjoining foundation walls.
    Error.
    
      Franklin T. Cahill, for plaintiff in error.
    
      John C. Healy, for defendant in error.
    
      
      Affirmed no opinion, Klinck v. McGuire, 81 O. S. 543.
    
   The phrase “and by such excavation” as used in Sec. 2676 R. S., (Sec. 3782 G. C.) 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 Sec. 2677 R. S. (See. 3783 G. C.), 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.

Swing and Smith, JJ., concur.  