
    *Stevenson v. Wallace.
    January Term, 1876,
    Richmond.
    i. Easements — Lateral Support — Land.—Every person has a natural right, ex jure natura, to support to his land from the adjacent and subjacent soil,
    a. Same — Same—Same.—This natural right to support exists in respect of land only, and not in respect of buildings; but the former right remains though houses are built on the land.
    3. Same — Same—Buildings.—But a right to support for buildings may be acquired; and when so acquired it is an easement
    4. Same — Same—Same—Grant.—An easement for support of a building is acquired by grant, which may be express, implied or presumed. And when acquired it gives the same right of support in respect of the buildings that there was ex jure natura in respect of the land.
    5. Same — Same—Same—Same—Prescription—Reserva» tion. — The grant of such an easement will be presumed from twenty years enjoyment; and will be implied, in the absence of express stipulations, in every case where the owner of adjoining houses or of houses and lands severs the property by sale. Rights of support in such cases are mutually granted and reserved between the original owner and first grantee, and the second grantee succeeds to -the owner’s reserved rights.
    6. Same — Same—Same—Same—Reservation.—M owns two adjoining lots in R. He conveys one with a house on it to R and reserves in the deed the right to join the two end walls of the house free of costs M retained the right, which passed with the land to those who derive title under him, to join his building to that conveyed to R, by an independent wall along side of it, or to make it a part of his building by joining only the end walls: and the privilege of joining R’s building in the mode indicated in the reservation, did not extinguish or impair his implied reservation of support.
    7. Same — Same—Same—Loss of Building by Fire — Right of Support Not Extinguished. — If S holding title to the second lot had a building upon it, which was supported by the land and building conveyed to R for twenty years or more with the knowledge of the owner thereof, prior to a fire *which destroyed both buildings, a grant of the easement of support will be presumed; and said easement was not lost or extinguished by the destruction of S’s building, but adhered to the building S erected on its ruins; and any right of support which S derived from the reservation in the deed to R, express or implied, was not extin guished by the destruction of the old building, but survived and adhered to the new one.
    8. Same — Same—Same—Care in Removing. — The mere fact of contiguity of buildings imposes an obligation upon the owners, to use due care and skill in removing the one building, not to damage the other, even though no iight to support has been acquired.
    9. Same — Same—Same—Same—Liability.—But if in such case S is entitled to the support of her building by the foundation wall and land of W, claiming under R, W cannot withdraw the support without being liable in damages for the injury which occurs to S thereby.
    10. Same — Same—Same.—In such a case S is not bound to protect her building by providing other supports, in place of the supports which W is removing, though she may have had notice that W was removing the supports.
    11. Same — Same—Same.—If the house of S was so badly constructed and its foundation and materials were so defective that the fall could not have been arrested by timely precautions when W was excavating upon his lot in order to build upon it, these facts would not constitute a bar to the action of S against W, so as to defeat it; but they would be proper to be considered by the jury upon the question of damages.
    12. Same — Same—Same.—Though W contracted with an experienced and competent excavator, of good standing in his business, to make the excavations upon his own lot, and gave notice thereof to S in time to enable her to adopt precautions for the protection of her adjoining building, W is still liable for any damage that may have resulted to S’s building in consequence of negligence or unskill-f illness in th e making of said excavation by reason of leaving insufficient support to S’s premises.
    J3. Practice — Instructions—Incorrectness—Saving Exceptions. — If upon a trial instructions are given to tbe jury, to which no exception is taken, and after verdict a motion is made for a new trial, on the ground of misdirection as well as that the verdict is contrary to the evidence, it is the duty of the court of trial to consider the correctness of the instructions, and if of opinion that they are not correct, and were calculated to mislead the jury, to set aside the verdict and grant a new trial; and the appellate court will supervise his actions in this respect.
    *This was an action of trespass on the case in the Circuit court of the city of Richmond, brought in April 1872, by Iv. T. Stevenson against Charles M. Wallace, to recover damages for injury to the plaintiff’s house by excavation by the defendant made on his adjoining lot. On the trial the judge gave several instructions to the jury, to which the plaintiff did not except ; and there was a verdict and judgment for the defendant.
    The instructions are as follows:
    ‘ T. The jury are instructed, that the plaintiff was not entitled to demand of the defendant the lateral support of his land for her adjoining building to any extent which deprived him of the right to excavate thereon for the purpose of building, or imposed upon him liability for damages consequent upon the prudent and careful exercise of that right.
    “2. But the jury are further instructed, that it was the duty of the defendant before proceeding to make his excavation and endanger the safety of the plaintiff’s building, to give her timely notice to enable her to adopt suitable precautions for the protection of her property; and that if he failed to do so, he was guilty of negligence, and is liable to the plaintiff for such damages as were consequent upon the excavation, and which the plaintiff could not after knowledge of the danger avert by prompt and diligent action.
    “3. If the jury believe from the evidence, that the building of the plaintiff was so badly constructed, and its foundation and materials so defective, that the fall could not have been averted by timely precautions when the excavation was made by the defendant, or that the plaintiff, or her agents, after they had knowledge of the necessity, could have then, by prompt and provident action, protected the building, and neglected *to do so, or that they prevented the defendant from doing so by refusing to allow him to build a foundation on that part of his wall occupied by the plaintiff, or by retaining illegal possession and occupancy of a part of his rear wall, in either event the plaintiff cannot recover in this action.
    “4. The court instructs the jury, that if they believe from the evidence that the defendant contracted with an experienced and competent excavator, of good standing in his business, to make the excavations in the declaration mentioned upon the defendant’s own lot, and gave notice thereof to the plaintiff in time to enable her to adopt precautions for the protection of her adjoining building, or if she had such knowledge in such time, the defendant is not liable for any damage which may have resulted to the plaintiff’s premises in consequence of negligence or unskillfulness, if any, in the making of said excavation by reason of leaving insufficient support to the plaintiff’s premises or otherwise.”
    At the same term the plaintiff moved the court to set aside the judgment and verdict and grant her a new trial, on the grounds that the verdict was contrary to the evidence, and that the court had misdirected the jury; and the court set aside the judgment; and not being advised of its judgment to be given on the motion to set aside the verdict, time was taken to consider thereof until the next term.
    At the next term of the court, the court overruled the motion for a new trial; and the plaintiff excepted; and the evidence being in some respects contradictory the court declined to certify the facts proved, but certified the evidence.
    By deed bearing date the 1st of May 1817, Joseph Marx and wife conveyed to Thomas Richardson a lot *on Thirteenth street, between Main and Cary streets, in the city of Richmond, with a brick tenement thereon; and Marx reserved to himself the right of joining the two end walls of said tenement free of cost. This is the lot owned by the defendant Wallace.
    By another deed, bearing date the 8th of July 1817, Joseph Marx and wife conveyed to Mary Stevenson a lot on Thirteenth street, adjoining the lot he had conveyed to Richardson; and further conveyed to her the privilege of joining the end walls of the brick tenement conveyed to Richardson free of cost.
    Buildings were standing on both these lots on the 3rd of April 1865, when they were consumed in the great fire of that day. In the year 1866 plaintiff’s lot was leased to one Bauman, for the term of five years, who bound himself to erect a building thereon; and Bauman did erect the building, and at the end of his lease he rented the premises for six months; and during this period the plaintiff’s building fell. It appeared in evidence, that in building, Bauman had built the main building upon a new foundation close against the foundation wall of the old building on the defendant’s lot, which was standing thereon at the time Marx conveyed to Richardson, and had been burnt in 1865, but from the end of the house had occupied the wall of the defendant as a support for a kitchen in the rear.
    It was further shown in evidence that the defendant in the fall of 1872, proposing to build upon his lot, contracted with a mechanic in writing as follows: “I propose to clean out the cellar on 13th street, which you spoke to me about to the depth of nine feet, below the offset on the wall adjoining-, for one hundred *and forty-four dollars, and clean and hack the bricks for sixty cents per thousand.'
    W. T.Ford.”
    Richmond, October 10, 1871.
    C. M. Wallace, Esq.
    Endorsed Feb’y 17th, 1872:
    Rec’d on within contract the sum of one hundred and forty-four dollars.
    W. T. Ford.”—
    to make excavation for the foundation of his building-; and introduced testimony tending to show that the mechanic he employed was an experienced and competent excavator of good standing in his business. The excavation was completed some time in the month of January, 1872, to a depth of three feet below the old foundation, which was deeper than the foundation of plaintiff’s house; that a margin of a foot at the top and a foot and a half at the bottom was left between plaintiff’s building and the excavation. It did not appear that the defendant gave any notice to the plaintiff or her agents of his proposed excavation, and no apprehension of danger seems to have been entertained until February 12th, 1872, when the tenant of plaintiff called attention of her agent to the matter; but it did appear that at a sale of the property on December 14th, 1871, after the excavation was complete to the depth of two and a half feet below the old foundation, the defendant had called attention of plaintiff’s counsel, who was then present, to the fact that the kitchen of plaintiff’s lot was built upon his wall and interfered with his proposed building; *and that some negotiation was had between them with regard to the removal of the kitchen, but that the plaintiff’s counsel did not agree to remove the wall. After the 12th of February, 1872, the' plaintiff’s counsel communicated with the defendant the apprehensions entertained about the security of her house, and required him to take measures for its security. This he refused to do; and nothing was done until March 16th 1872, when the plaintiff’s agents were ordered by the chief of the police of the city of Richmond, to whom the tenant had made complaint, to protect the building. And thereupon the plaintiff’s agent employed an experienced bricklayer to proceed to underpin and protect the building, addressing the following letter to the defendant:
    “Richmond, Va., March 18, 1872.
    Dear Sir:
    We separated on Saturday with the understanding that I should inform you what action Mrs. Stevenson’s agents should finally determine on in view of your refusal, then made known, to underpin or protect her house by building, except upon conditions with which she could not comply, as to allowingyou to take down the old wall in the rear, &c. ’I write to say that they have directed a builder to underpin the main building, and in accordance with the theory of your liability to protect the house frequently expressed by me, in conversation between us, that she will look to you for reimbursement to the amount of expense thereby necessarily incurred, when the work has been done, which it shall be upon the most reasonable terms attainable. I will let you know the amount, and if you are not willing to admit the claim, will be willing to carry out the spirit of our ^conference as to referring the subject to some amicable tribunal for adjustment.
    In haste, I am very resp’y and truly,
    Jas. N. Dunlop.”
    C. M. Wallace, Esq., present.
    During the progress of the work by the workmen employed by the plaintiff, the building fell. There was conflicting evidence before the jury as to the manner in which the work was performed — some witnesses testifying that it was done m the most prudent and judicious manner, and others testifying to the contrary. There was also testimony tending to prove that the building had been so much damaged by the excavation before the effort to protect it was made, that it was then beyond the hope of successful protection; and there was conflicting evidence as to whether by prompt and provident action, on the 12th of Febru-arv, 1872, the building could have been saved. There was also evidence tending to show that the building had been originally constructed of very indifferent material, and carelessly End imprudently built upon an insufficient and insecure foundation. There was also evidence tending to prove that, but for the excavation in defendant’s lot, the building- of plaintiff would have stood an indefinite length of time. There was also conflicting evidence as to the manner in which the excavation had been performed: some witnesses testifying that the excavation had been and others that it had not been skillfully and prudently made. There was evidence tending to show that in December 1871, the defendant had made all necessary arrangements to build upon his premises, and delayed in consequence of the refusal of the plaintiff to remove her kitchen from *his wall. There was evidence in the case that the ag-ent of the plaintiff frequently passed the premises after the excavation had been made, and before the tenant of plaintiff called attention to the danger.
    Upon the application of S. T. Stevenson, a writ of error and supersedeas to the judgment was awarded.
    James N. Dunlop, for the appellant.
    John Howard, for the appellee.
    
      
      Easements — Definition.—In Tardy v. Creasy, 81 Va. 556, the court cited the principal case for the following definition: “We may define an easement to be ‘a privilege without profit, which the owner of one tenement has a right to enjoy in respect of that tenement in or over the tenement of another person, by reason whereof the latter.is obliged to suffer, or refrain from doing something on his own tenement for the advantage of the former. ’ ”
    
    
      
      tSame — Lateral Support — Land.—That the right of support for land arises ex jure natura, see 3 Min. Inst. (2d Ed.) 25; Tunstall v. Christian, 80 Va. 3; Salamone v. Keiley, 80 Va. 86; Stearns v. City of Richmond, 88 Va. 992, 14 S. E. Rep. 847.
    
    
      
      $Same — Same — Buildings — Grant — Implied. — The right of lateral support for buildings can only be acquired by grant. 3 Min. Inst. (2d Ed.) 26; Tunstall v. Christian, 80 Va. 4. That such an easement may arise by implied as well as express grant, see Tunstall v. Christian, 80 Va. 7; Sanderlin v. Baxter, 76 Va. 299; Scott v. Beutel, 23 Gratt. 1; Hardy v. McCullough, 23 Gratt. 251; Burwell v. Hobson, 12 Gratt. 322.
    
    
      
      Same — Same — Same — Same — Prescription. — The English authorities hold that the right of lateral support for buildings may be acquired by prescription. 3 Min. Inst. (2d Ed.) 25, citing the principal case. The weight of American authority, however, is that such a right cannot be obtained by prescription. See the opinion of President Lewis in the important case of Tunstall v. Christian, 80 Va. on page 5, practically overruling the doctrine of the principal case, where, speaking of this prescriptive right to support for buildings, he said: “It is true that in some of the American cases are to be found dicta of the judges in favor of the doctrine. And in Stevenson v. Wallace, 27 Gratt. supra, there are expressions in the opinion of the court formed on certain English cases to the same effect. But the decision of the question was not necessarily involved, inasmuch as the right asserted in that case was held to be clearly implied from the terms of a deed by a common predecessor in title of the parties.”
    
    
      
       Instructions — Saving Exceptions. — See general note on “Instructions” appended to Womack v. Circle, 29 Gratt. 192; also Danville Bank v. Waddill, 31 Gratt. 169, and note; Peery v. Peery, 26 Gratt. 320, and ’rióte.
      
    
   Anderson J.

delivered the opinion of the court.

This is an action by the owner of a tenement in the city of Richmond against the owner of an adjoining tenement, to recover damages of the defendant for digging in his lot so néar the foundation of the plaintiff’s house, and to such a depth, as to cause it to fall. The defendant’s lot, together with the brick dwelling-house thereon, was conveyed to Thomas Richardson, defendant’s grantor, by Joseph Marx and wife, by deed bearing date on the 1st of May 1817, the grantor reserving the right to join the two end waits of said tenement. And the plaintiff’s lot was conveyed to Mary Stevenson, from whom the plaintiff derives title, by the same grantor, by deed bearing date the 8th of July, in the same year, and is described as adjoining the tenement conveyed as aforesaid to defendant, beginning at the northeast corner thereof, and “running thence along the wall of said tenement, north 54 degrees west, 68 feet eight inches to Edward Hallam’s line;” also the privilege of joining the end walls of the brick tenement conveyed to Thomas Richardson as aforesaid, free of any cost, together with all and singular the buildings, ways, easements, hereditaments and appurtenances, &c. There seems to have *been no building on the parcel of land reserved by the grantor, and which he soon afterwards conveyed to Mary Stevenson. But the language of his deed to the defendant clearly implies the reservation of a right to build on it, and to join the end walls of the building which he conveyed to the defendant. And the right so by him reserved, he conveyed by his deed to Mary Stevenson; and it is implied that the land was sold and conveyed to her for the purpose of building thereon. A building was erected thereon, but when or by whom it does not appear, which, together with the defendant’s building, was destroyed by the memorable lire which occurred on the 3d of April 1865. The plaintiff afterwards, in 1866, caused another building to be erected on the same site, laying the foundation wall of her main building jam against the old foundation wall of the defendant’s building, and building one of the walls of her kitchen in the tear oí her main building, on the old foundation wall of the defendant’s building.

In the latter part of the year 1871, the defendant intending to rebuild, caused the old foundation wall of his building, contiguous to which the foundation wall of the plaintiff ’s main building was laid, to be removed, and the excavation of his cellar to be a depth of three feet below his old foundation, which was lower than the foundation of the plaintiff’s building, which the plaintiff alleges caused her main building to fall, and for which she seeks to recover damages of him.

Every person has a natural right, ex jure naturae, to support to his land from the adjacent and subjacent soil. This natural right is incident to land, and the owner is as much entitled to it as he is to the land itself, without any grant by the servient owner, or any act of acquisition on his own part. It is a right therefore *which the law annexes to the ownership of land, that he shall have sufficient support for his ground from the subja-cent and adjacent soil. The right to subjacent support, it is said, was first determined in Humphries v. Brogden, 12 Q. B. 739, 64 Eng. Com. Law R. 739, upon the ground that there were the same reasons for it that there were to maintain the right to lateral support which had been previously determined. Both rest upon the same foundation.

But this natural right to support exists in respect of land only, and not in respect of buildings; but the former right remains, though houses are built. Brown v. Robins, 4 Hurl. & Nor. R. 186, 28 L. J. Exch. 250; Stroyan v. Knowles, 6 Hurl. & Nor. R. 454, 30 L. J. Exch. 102. But a right to support for buildings may be acquired; and when so acquired it is an easement — which is defined to be “a privilege without profit, which the owner of one tenement has a right to enjoy in respect of that tenement in or over the tenement of another person; by reason whereof the latter is obliged to suffer, or refrain from doing something on his own tenement for the advantage of the former.” Goddard on Easements, pag-e 2.

An easement for support may be acquired in different modes, but all are reducible to one by grant; which may be express, implied or presumed. When the owner of land acquires the easement of support, it would seem that his natural right of support in respect of the soil is enlarged, so as to embrace the buildings which he may erect on his land, and invests him with the same right of support in respect of his buildings that he has ex jure naturas in respect of the soil.

If the plaintiff has enjoyed the support of the land or buildings of the defendant for twenty years, to keep up his house, and both parties knew of that support, *the plaintiff had a right to it as an easement, and the defendant could not withdraw the support without being liable in damages for any injury that accrues to the plaintiff thereby. Hide v. Thornborough, 61 Eng. Com. L. R. 250, 255, Parke B.; Goddard on Easements and cases cited, p. 31; Humphries v. Brogden, 64 Eng. Com. L. R., page 739. In such case the grant is presumed.

The grant is implied, in the absence of express stipulations, in every case where the owner of adjoining houses, or of houses and land, severs the property by sale; for, in every such case, rights to support are granted by implication by the vendors and purchasers respectively, for the preservation of the buildings belonging to each other. Goddard on Easements, p. 154, and cases cited. Rights of support in such cases are mutually granted and reserved between original owner and first grantee; and the second grantee succeeds to owner’s reserved rights. Richards v. Rose, 9 Welsb., Hurl. & Gor. 218; Gayford v. Nicholls, Idem 702.

In the case under judgment, the court is of opinion, that the defendant’s grantor, Joseph Marx, when he conveyed a part and parcel of his land to the defendant, with the brick building thereon, reserved the right to build, on the parcel which he retained; and the reservation of his right to support to such building when erected, by the land and building which he conveyed to the defendant, must be implied as an easement. And that said right of support, or easement, passed from him by his deed of conveyance to Mary .Stevenson, and from her, with the title to the tenement, to its present owner in fee.

The court is also of opinion, that the original grantor, by his reservation in his deed to the defendant, *of the right to join the end walls of the building he conveyed to him, retained the right, which passed with the land to those who derived title from him, to join his building to the defendant’s by an independent wall alongside the defendant’s building, or to make it a part of his building by joining only his end walls; and that the privilege of joining his building in the mode indicated by the reservation, did not extinguish or impair his implied reservation of support.

The court is also of opinion, that if it be shown that the plaintiff had a building on her lot which was supported by the land and the building of the defendant for twenty years or more, with the knowledge of the defendant, prior to the fire of April 3d, 1865, which destroyed both buildings, a grant of the easement of support .will be presumed: and that said easement was not lost or extinguished by the destruction of her building, but adhered to the building which she caused to be erected on its ruins: and that any right of support which she may have derived from the reservation of the deed of conveyance of her grantor to the defendant, express or implied, was not extinguished by the destruction of the. old building, but survived and adhered to the new.

With regard to the instructions given by the court to the jury, the court is of opinion, that the mere fact of the contiguity of buildings imposed an obligation on the owners, to use due care and skill in removing the one building, not to damage the other, even though no right of support has been acquired. Goddard on Easements, p. 33, citing Dodd v. Holme, 1 A. & E. 493. But if the plaintiff was entitled to the support of her building, by the foundation wall and land of the defendant, the defendant could not withdraw the support without being liable in damages for the ^injury which accrued to the plaintiff thereby. This doctrine has already been announced, and cases cited in support of it. The first instruction therefore should have been given with the foregoing qualification.

With regard to the second instruction, so far as it implies that though the plaintiff was entitled to the easement of support to her building, it devolved upon her to protect her building, by providing herself other supports, and that the defendant was not liable if the plaintiff had knowledge of the danger, and could have averted it by prompt action, the court is of opinion it is erroneous. ■

With regard to the third instruction, it does not seem to have been settled, whether the defective construction of the plaintiff’s building with defective materials, upon a defective foundation, which would increase its liability to fall, should affect .the plaintiff’s right of recovery, or relieve the defendant from liability in damages. It is argued on the one hand, that the plaintiff’s building, although defective in its construction, would not have fallen or been impaired, but might have stood a great while, but for the act of the defendant in removing its supports. On the other hand it is contended, that it would be unreasonable and unjust to allow the dominant tenant to deprive the servient of the privilege of improving his own property, and enjoying the benefit of it, by erecting a building' upon her lot, so defective in its construction, or in materials, or in its foundation, that the servient tenant cannot with all due care and proper precaution improve his own property without incurring the liability of paying for his neighbor’s. Respectable courts and able judges have decided the question differently. One side must have erred, and neither perhaps have placed it upon the true ground. The *court is of opinion, that whilst the facts supposed should not constitute a bar to the plaintiff’s recovery, so as to defeat her action, they would be proper to be considered by the jury upon the question of damages; and that so far as the instruction gives them an effect to defeat the plaintiff’s right of recovery, it is erroneous. The court is of opinion, that the remainder of the instruction is erroneous, the first clause of it because inconsistent with principles already enunciated; and the last clause, because if the plaintiff wrongfully erected her kitchen wall, upon the defendant’s wall, in relation to which the court does not intend to indicate an opinion, it would be virtually to set off the defendant’s aggression by the plaintiff’s trespass.

With regard to the fourth and last instruction given by the court:

The material part of this instruction is, that if the defendant contracted with an experienced and competent excavator, of good standing in his business, to do the work, he is not liable in damages for any injury which the plaintiff sustained by his negligent and unskillful execution of it. The instruction is evidently designed to rest upon the distinction between execution of work by an independent contractor, and an agent or servant. Without attempting to draw the line of distinction, which is not always well defined, between the two descriptions of contract, it is sufficient to say, that the instruction is objectionable, in so far as it decides for the jury, that the contract was of the former description. Whether the work was done by an independent and responsible contractor, or by an agent or servant, in either case it would be by contract. The instruction must be considered in connection with the evidence which was before the *jury, and which is certified by the court. That evidence tends to show that the work was not undertaken by a contractor, as contradistinguished from an agent, or servant, or laborer.

There is a class of men whose business it is, to undertake the erection of buildings, or other works for reward. They do not generally propose tó do the work in person. They are not always competent. They may be neither bricklayers, masons, nor carpenters, plumbers, nor painters, nor slaters; but they are contractors, and they employ bricklayers, carpenters, &c., to do the work. Or one may be contractor for the brick work, and another for the carpenters’ work, &c., all of whom expect to employ agents and laborers to execute the work. They who undertake to have the work done are contractors, and they who do the work are their servants or agents. Perhaps there the distinction lies, between those who do the work and those who contract to have it done. The defendant might have let out the whole building, excavation, foundation, and superstructure, to a contractor, or he might have let the whole work of building, and reserved to himself the work of excavation and preparation for the foundation; and in that case it would have been just as necessary that he should have an experienced laborer to do the work of excavation as if he had let it to contract. It was no part of the main work which the defendant had in contemplation, the erection of a building on his premises: it was only a preparation for it. And as it was necessary to be done with caution and prudence, as it might endanger his neighbor’s property — and as it was a small job — the work to be done was inconsiderable and inexpensive, but the defendant was interested in having it done with great care, and would be therefore inclined to have it done *under his own supervision; and we find him contracting directly with the laborer who did the work, and not with one who undertook it as a responsible contractor, to have it done under his own supervision, by his agents or servants. The jury might well be warranted in coming to the conclusion, that the defendant had employed the man who did the work, as his agent or servant to do it for a specified price, and not as a responsible contractor, to have it done through his agents or servants, under his direction and supervision. The fault of the instruction is that it excludes that conclusion, though the jury might think the evidence warrants it.

But another objection fatal to the instruction is, that it ignores the plaintiff’s easement of support, and holds that the defendant would not be liable in damages for any injury to the plaintiff’s building, which was caused by the negligence or unskillfulness of the excavator in removing the supports; which involves the absurdity, that though the defendant was responsible for injury to the plaintiff’s building by removing the supports (she being entitled to them), though every care and precaution were used to prevent injury, he would not be liable for the injury if the supports were negligently removed by the excavator whom he employed to remove them. The court is of opinion that this instruction is also erroneous.

It cannot be doubted that it would have been competent for the Circuit court, if in reviewing the instructions which in general are given without much time for reflection or investigation pending the jury trial, it should have been satisfied that he had mistaken the law and misdirected the jury in matters which had a material and important bearing upon the issue, and had most probably influenced its verdict, *upon that ground to have set aside the verdict and awarded a new trial, and that it would have been his duty so to have ruled. But if upon that review the court below should adhere to its first ruling, and hold that the instruction was rightly given, and refuse to set aside the verdict upon that ground, and the rulings of that court should by a bill of exceptions thereto be brought under the review of the appellate tribunal, if the appellate tribunal should be of opinion that the jury had been misdirected, and that its verdict had been probably influenced by the erroneous instruction to the prejudice of the exceptor, and that the court of trial had erred upon that ground in overruling the motion for a new trial, surely it would be competent for the appellate court to reverse the judgment for that cause, and to make such order as ought to have been made by the court below. This conclusion is fortified by the opinion of this court in Bull’s case. 14 Gratt. 613.

The court is therefore of opinion to reverse the judgment of the Circuit court with costs, and to remand the cause for further proceedings to be had therein in conformity with this opinion.

The court has expressed no opinion as to the demurrer to the declaration, nor is it necessary to do so now, as the general principles governing the case have been laid down.

There is one defect running through all the counts, that whilst they allege that the common grantor in the conveyance he made to Mary Stevenson of the piece or parcel of his land which he did not convey to the defendant, conveyed the right to join the ends of the defendant’s building, neither of them allege that he reserved to himself the said right or the right of support in his deed of conveyance to the defendant. There are also other defects in the declaration of a *more formal character, which the court will not decide are fatal to it upon demurrer; but as the cause will be remanded for further proceedings, the plaintiff may have leave to amend her declaration if she desires it.

Staples, J.

concurred in the opinion of Judge Anderson, with the exception of that portion which holds that the owner of a building defectively constructed, with defective materials, and upon an insufficient foundation, is entitled to damages, resulting from an excavation upon the adjoining lot made in a skillful and proper manner. He was inclined to think that in such case. the owner of the building was not entitled to any damage fdr an injury resulting from the excavation.

Judgment reversed.  