
    Keating v. Cincinnati.
    A municipal corporation in making a street along a hillside, so excavated the ground in the street as to cause the land above to slide and injure the lot of the plaintiff. Held:
    
    1. That the fact that the plaintiff’s lot did not abut immediately on the street did not exempt the corporation from liability. Its liability did not depend upon the ownership of the injured property, but upon the extent of the injury of which its removal of the lateral support of the hill was the efficient cause.
    2. That the liability extends to damages to buildings as well as to the land in its natural state, where the owner is not chargeable with negligence in making such improvements, and such damages result from want of due skill and care in making the street.
    Error to the District Court of Hamilton County.
    The original action was brought by Edward Keating, to recover the damages he sustained to his premises by the construction of Gilbert avenue in said city. The plaintiff’s lot fronts on the west side of Sixth street twenty-five feet, extending back towards Gilbert avenue ninety feet, more or less. The petition states that more than twenty-six years since there was erected upon the front portion of said lot a dwelling-house and outhouses, to be used as a dwelling for himself and family, and which he has so used and occupied ever since. That in the year 1873, the defendant, in constructing Gilbert avenue, illegally and wrongfully caused the base of the hillside to be cut away and i*emoved, upon and above which the lot and improvements of the plaintiff are situated, whereby the surface of the plaintiff’s lot was made to slip, the support removed, injuring the lot, breaking the surface, the foundation walls of his house, and rendering the dwelling and improvements untenable.
    The petition charges negligence and want of skill in the original location and grade of the street and in the execution of the work which caused the injury complained of. And also averred that his improvements were made in good faith and with reference to the grade of the streets and alleys existing at the time, and that he had no reason to expect or apprehend the city would ever cause a cut to be made in the rear of his lot, of the nature and character of the one so made.
    The answer took issue with the averments in the petition.
    On the trial, as it appeared by the bill of exceptions, the lot of the plaintiff lies with reference to Gilbert avenue, thus:
    
      
    
    
      It also appeared that the plaintiff bought his lot in 1864; and that it had a house on it fronting on Sixth street, erected more than twenty-five years before the action was brought. That the land on which Gilbert avenue lies had been condemned by the city for the purpose of an avenue in 1869, but that none of the plaintiff’s ground was condemned; that Gilbert avenue was a new wide street projected and laid out in 1869, and ran diagonally to the old established streets and at a different grade ; that the plaintiff’s lot had been improved, in accordance with the established grades of the adjoining streets, and used for over thirty years; that without the cutting in the avenue his building, and lot would have remained undisturbed, and his lot lies fifteen or twenty feet east of the avenue, with a ten feet unimproved alley between, on which his lot abuts at the west end. Gilbert avenue is built along a hillside; the hill rises to the east so that the plaintiff’s lot slopes upward from the avenue; Sixth street is above both and the hill continues to rise until it reaches perhaps a hundred feet above the avenue and the ground falls away westward below the avenue.
    The bill of exceptions also contains the following statement:
    “The plaintiff then gave testimony as to the values and amount of injury, and the reasonable cost of repairing the same, and the values of such improvements as he claimed to be wholly destroyed by the cut and the slip, which amounted in all to $985. And thereupon it was agreed between the parties that plaintiff’s estimates were reasonable and honest, and neither side would offer testimony on that point, either to corroborate or attack his testimony as to amount of damages, or value, or cost of repairs, they being accepted as true, which consisted in destroying totally the stone foundations, breaking and cracking the walls and ceilings, breaking and destroying and rendering entirely useless and valueless a cistern and privy, and compelling plaintiff to make new foundation walls, paint and plaster anew in great part his house; also, great loss of rents; also, the general deteriorar tion.”
    
      The remaining evidence material to be noted is- stated in the opinion.
    The court charged the jury as requested by the defendants, to which there was no exception; and the jury returned a verdict for the plaintiff, assessing his damages at $450.
    A motion for a new trial was made by the defendant, which was overruled and judgment rendered on the verdict. On error the judgment was reversed by the District Court. The present petition in error is prosecuted to reverse the judgment of reversal.
    
      Mallon <& Coffey, for plaintiff in error :
    1st. Can a municipal corporation, in the construction of one street on a hill-side, cut away the foot of a man’s lot without being responsible for the damages done to buildings fronting on and built with reference to the grade of another street ?
    If,' as claimed in this case, the city is liable for changing the grade of a street in front of a man’s property, all it has to do to escape that liability is simply to make such a street behind a man’s house as will knock down his house and improvements, then it can change the grade in front without risk or damage, as the improvement behind and not the change in front did the mischief. City of Cincinnati v. Penny, 21 Ohio St. 499.
    We claim : 1st. That the rule of law in cases of this kind, as laid down in Radcliff’s Ex'rs v. Mayor of Brooklyn, 3 N. Y. 205; Cheever v. Shedd, 13 Blatchf. 263; and 25 Vt. 63, is not to govern in Ohio. Crawford v. Village of Delaware, 7 Ohio St. 366. 2d. That a municipal corporation is responsible for injuries, direct and consequential, to buildings on abutting property, where it acts negligently, carelessly, or maliciously. 3d. That under all circumstances, it is responsible for all injuries done to the lot itself. 4th. That although the city make its improvements carefully, under full authority, within the lines of its streets, where there is no “ negligence or indiscretion,” imputable to the lot-owner, and where he does not contribute to the injury, then the city is liable. 5 th. Keating’s house having stood over twenty years, he had a prescriptive right to the support, unlawfully taken by the city.
    
      Kumler, Ampt c& Warrington, city solicitors, for defendant in error:
    We claim that a municipal corporation is not liable to a lot owner, whose lot does not abut upon a street, for injuries to buildings, resulting from the construction or improvement of its streets, provided that its officers and agents, in making such improvements, act within the scope of their authority, and without negligence or malice.
    The sole question in this case is one of lateral support. The plaintiff’s lot on which his buildings were erected slid towards the avenue, where a cut had been made to the depth of nine feet in order to bring it down to grade. His house was built on the side of a hill very difficult of ascent, about one hundred feet up the hill, opposite the cut. He claims that the city deprived him of the lateral support of his lot, in consequence of which his buildings were damaged. There was a ten foot unimproved alley between the rear end of his lot and the avenue. None of his ground was condemned by the city.
    As to what is lateral support, see Washburn on Easements and Servitudes, 430, ch. 4, 2 ed.; McGuire v. Grant, 1 Dutcher (N. J.) 556 ; Charless v. Rankin, 22 Mo. 566; Farrand v. Marshall, 19 Barb. 385; Gilmore v. Driscoll, 122 Mass. 201; Solomon v. Vintners’ Co., 4 H. & N. 585; Bonomi v. Backhouse, 9 H. of L. Cas. 503; Birmingham v. Allen, L. R. 6 Ch. Div. 296, 297; Cooley on Torts, 594; 20 Mag. & R. 82. As to the doctrine of lateral support, see Wood on Nuisances, ch. 5, pp. 173 and 174; Thurston v. Hancock, 12 Mass. 220; Gilmore v. Driscoll, 122 Mass. 199; City of Quincy v. Jones, 76 Ill. 231; Foley v. Wyeth, 2 Allen (Mass.) 131; McGuire v. Grant, 1 Dutcher (N. J.) 356; Charless v. Rankin, 22 Mo. 466; Farrand v. Marshall, 19 Barb. 380; Richardson v. Vermont Cent. R. R. Co., 25 Vt. 465. The leading English cases are: Wyatt v. Harrison, 3 B. & Ad. 871; Bononi v. Backhouse, 9 H. L. Cas. 502, 503; Hunt v. Peake, Johns. Chan. (Eng.) 705, Soloman v. Vintners' Co., 4 Hurls. & N. 585; 
      Birmingham v. Allen, L. R. 6 Ch. Div. 284, 297. It is claimed that the right to lateral support can be acquired by-prescription as against the city. We deny the proposition. Wood on Nuisances, § 212; 2 Blacks. Com. 265 ; Washburn on Easements and Servitudes, *430; Gilmore v. Driscoll, 122 Mass. 207.
    In Ohio, damages to property owners from changes of grade and injury to access are limited to abutting and improved property. The damage must be the result of a change of grade, not of the construction of a new street. The property in question in this case did not front nor abut upon Gilbert avenue.
    Upon principle, we are unable to see why the case of Cincinnati v. Penny, 21 Ohio St. 499, is not decisive of this one.
   White, J.

The only question in this case is, whether the evidence supports the verdict. The jury was instructed as requested by the defendant; and as the instructions are not set out in the record they must be presumed to have been correct.

It appears from the evidence that the defendant in excavating for the avenue on the hillside, below the plaintiff’s premises, caused damages to his lot as well as to the improvements. The aggregate amount of such damages is stated to have been $985; but how much of that sum is attributable to the lot without the improvements, and how much to the improvements is not specifically stated. The jury assessed the damages at $450, which was less than half the damages admitted to have been sustained, including the damages to the improvements. The finding of the jury must be presumed to have been in accordance with the instructions of the court, and may have included only the damages to the lot without reference to the improvements.

The excavation on the upper side of the avenue, opposite the plaintiff’s premises, was twelve feet; and the whole surface of the hill moved from a point on Sixth street down, passing diagonally under the plaintiff’s dwelling, showing a wide opening in the ground.

A. E. Tripp, the city civil engineer, testified:

“ The cut caused the slip, and we did nothing to stop the slip; I saw it at the time. A retaining wall would be the only way to stop a land slide, to put it in by sections as the cut progressed. We made no wall in front of Keating’s lot.”

A. L. Anderson, who was the city civil engineer at the time of the trial, testified as follows:

“The hill is of alternate layers of clay, more or less hardened, and limestone and surface soil; it is the latter that slips on the smooth surface of the former. There is no way to prevent the slipping, except by a retaining wall or drains on the property, made more cheaply by trenches and drains up the hill itself, dug down to the solid part of the hill so as to carry away the water, which causes the surface to slide on the layers of blue clay underneath, as if on glass. It is impossible to foresee the weight of the soil that will slip, so as to know the size of retaining wall required.”

It was admitted that the city built no retaining walls opposite any of the property on the avenue at the time in controversy ; but that she did subsequently.

This case is governed by the principles settled by our own decisions, whatever may have been held elsewhere. In Rhodes v. The City of Cleveland it was held that a municipal corporation, acting within the scope of its powers, was liable for cutting ditches and water-courses in such a manner as to cause the water to overflow and wash away the plaintiff’s land. In the opinion of the court the principle of the decision is thus stated: “ That the rights of one should be so used as not to impair the rights of another, is a principle of morals, which, from very remote ages, has been recognized as a maxim of law. If an individual, exercising his lawful powers, commits an injury, the action on the case is the familiar remedy; if a corporation, acting within the scope of its authority, should work wrong to another, the same principle of ethics demands of them to repair it, and no reason occurs to the court why the same should not be applied to compel justice from them.” 10 Ohio, 160. This case was decided more than forty years ago, and has been often approved since. McComb v. Akron, 15 Ohio, 479; Akron v. McComb, 18 Id. 229; Crawford v. Delaware, 7 Ohio St. 459. See also Pumpelly v. Green Bay Company, 13 Wall. 166; and Eaton v. Railroad Company, 51 N. H. 504.

In this state, private property is entitled to the same protection against all classes of corporations as against natural persons, subject to.the right of appropriating such property to public use upon the terms of making full compensation.

The case under consideration involves no question of inconvenience to the owner, caused by the making of a neighboring or abutting public improvement, leaving the corpus of the property intact; but the case is one of the invasion or injury of the property itself. And it can make no difference in principle, whether the property is flooded and the soil washed away, or the property is injured and the soil removed from some other cause. It is the injury to the property that gives the right of action; and the author of it is bound to make reparation.

It is claimed on behalf of the city that as the plaintiff’s lot does not abut on the avenue, and as the damages resulted from the removal of the lateral support to the abutting property, the city is not liable. The fact that the property of others intervened between the lot of the plaintiff and the avenue can make no difference. The liability would be the same whether the several parcels were owned by one or by different owners. The liability of the city did not depend upon the character of the ownership of the damaged property; but upon the extent to which its wrongful act was the cause of the damages.

In regard to the buildings and improvements, it may be said that there is nothing in their character or in the circumstances, to indicate that the slide in the lands would not have occurred as it did, if they had not been there. The additional weight which they imposed cannot reasonably be supposed to have constributed materially to the giving away of the soil.

The case of Gilmore v. Driscoll (122 Mass. 199), relied upon by the defendant, fully supports the verdict in this case, and would have warranted the jury in allowing the damages to the improvements as well as to the lands, where the plaintiff is not chargable with negligence in making them. On page 205, referring to the former case of Foley v. Wyeth, it is said, “ that the right of support from adjoining soil for land in its natural state stands on natural justice, and is essential to the protection and enjoyment of property in the soil, and is a right of property which passes with the soil without any grant for the purpose. It is a necessary consequence from this principle, that for any injury to his soil, resulting from the removal of the natural support to which it is entitled, by means of excavation of an adjoining tract, the owner has a legal re-’ medy in an action at law against the party by whom the work has been done and the mischief thereby occasioned. This does not depend upon negligence or unskillfulness, but upon the violation of a right of property which has been invaded and disturbed. This unqualified rule is limited to injuries caused to the land itself, and does not afford relief for damages by the same means to artificial structures. For an injury to buildings, which is unavoidably incident to the depression or slide of the soil on which they stand, caused by the excavation of a pit on adjoining lands, an action can only be maintained when a want of due care or skill, or positive negligence, has contributed to produce it.’ ”

It is upon this principle that the City of Cincinnati v. Penny (21 Ohio St. 499) was decided. The city in that case was held exempt from liability for damages to buildings, because it was free from negligence in making the excavation. The same rule of liability from'want of proper care and skill is held in City of Quincy v. Jones, 76 Ill. 232.

The evidence in this case would have warranted the jury in finding that the city failed to exercise such care and skill in making the avenue in question; and hence the judgment of the court of common pleas ought not to have been reversed.

Judgment of the district cowrt reversed; and that of the common fleas affirmed.

Longworth, J., did not sit in the case.  