
    McMillen & Mauks v. Hudson Watt.
    Under the provisions of the statute of April 28, 1854 (S. &. 0. 1538), when the ojvner or occupant of a village or city lot erects a building- thereon, it is at his own peril if he so constructs its foundation walls that the owner of the adjoining lot can not dig a cellar thereon to the depth allowed by this statute, without endangering its safety. And such adjoining lot owner is under no obligation, after excavating his cellar to the statutory depth, to furnish a support for the walls of an adjoining building.
    Error to the District Court of Allen county.
    The original action was brought by the present plaintiff’s in the Court of Common Pleas of Allen county, and by their petition they complained of the' defendant, in substance, as follows:
    That on the 20th day of June, A. d. 1866, the plaintiffs were in the lawful and peaceable possession of a certain three-story brick store-house, and cellar thereto belonging, situate on lot 84, in the village of Lima, in said county, in which building and cellar they had a valuable stock of merchandise worth $2,000) that said building and premises were contiguous to a lot belonging to the defendant, and of right ought to have had the support of defendant’s contiguous ground; and that defendant on said day removed the earth from said contiguous territory to the depth of twelve inches below the foundation of plaintiffs’ said storehouse and cellar, and wrongfully and negligently left said excavation open and unwalled, and plaintiffs’ foundation walls unprotected and exposed' for the space of ten days, whereby plaintiffs’ said building was broken and fell to the ground, and their goods crushed and destroyed to their damage $2,000.
    The defendant, by answer, set up four several defenses, of which it is only necessary to notice the fourth, which was, that the excavation complained of was made by defondant for the purpose of erecting a building on the north half of in-lot 85, in said village of Lima, and for the cellar thereof; and that said cellar so dug by him was not of the depth of twelve feet below the established grade of the public square or street whereon said in-lot 85 abuts, nor was said cellar so dug to the depth of twelve feet below the surface of the south half of said in-lot 84, on which plaintiffs’ said building was situated; and that said village of Lima is an incorporated village under the laws of Ohio, and was such on the 20th day of June, 1866, and so had been for a long time prior thereto.
    A demurrer to this' defense was overruled by the court, to which plaintiffs excepted, and thereupon they replied, admitting all the facts stated therein, but reaffirming defendant’s negligence and carelessness in leaving the walls of plaintiffs’ building exposed and unprotected for ten days as 'averred in their petition, and reasserting their right to have had their building supported by the contiguous land of the defendant, which he removed in digging his said cellar.
    A demurrer to this reply was sustained by the court, to which plaintiffs excepted, and thereupon judgment was entered for defendant.
    .IJpon proceedings in ei’ror, afterward instituted by the plaintiffs in the District Court of Allen county, this judgment was affirmed, and they now ask the reversal of this judgment of affirmance.
    
      ,7. M. Brown, for plaintiff in error:
    This action stands outside and wholly independent of the statute of April 28, 1854 (S. & C. 1538). The right to maintain this action is as perfect and undisputable in the presence of this statute as if it had never been enacted. It might have been maintained under the common law which gave liberty unlimited in this regard. ■
    This action is. not brought because the defendant exei’cised a right given him by the common law, and affirmed by the statute. The plaintiffs in this case recognize this right to its fullest extent. This action is not brought for that the defendant excavated in his land, nor for that he exercised a right given him by law; but for that in pursuing a right given him by law, he did it in an unlawful way; for that in pursuing a right given him by the law, he did it wholly in disregard of the rights of the plaintiffs, ho did it carelessly, negligently, and wrongfully; and that by reason of this carelessness, negligence, and wrong, this right of action accrues. Washburn on Easements, 436, 444; Parton v. Holland, 17 John. 92; Foley v. Wyeth, 2 Allen, 131; Radcliff v. Mayor, etc., 4 Comstock, 195-203; Thurston v. Hancock, 12 Mass. 220; Hayes v. Cohoe’s Co., 2 Comstock, 159; Richardson v. Vt. Cen. R. R. Co., 25 Vt. 465; Charles v. Rankin, 22 Mo. 566.
    Hence we conclude that the statute does not conflict with or bar this action.
    The legislature has simply reaffirmed a common-law right. The statute does not infringe or change the maxim, “ so use thine own as not to injure another’s.”
    
      Isaiah Pillars, for defendant in error:
    The legislation of Ohio, as found in the act passed April 28, 1854. (S. & C. 1538), to regulate the excavation of cellars, etc., is not simply declarative of the'common law so far as declaring a right to exist in the adjacent owner to dig to the depth of twelve feet.
    We think there is a very material and radical change effected in the common-law rules by this legislation.
    By the common law the owner might dig as deep as he chose' without incurring liability, except where there was gross negligence in the manner of the excavation indicating bad intent; for he, by the common law, is the owner to the center of the earth and as high as the heavens. Cujus est solum, ejus est usque ad coelum. Under the statutory provision above quoted, the owner can not dig deeper than twelve feet, and under our present municipal code {vide secs. 494, 495) not deeper than nine feet below the established grade, even though he use the greatest precaution the ingenuity of man can devise, without incurring a liability for whatever damages the adjoining owner may sustain to his building or wall by reason of the excavation.
    Here certainly is a most radical change :
    As the former part of this section makes the owner liable for any damages sustained by the adjacent owner when the excavation is deeper than twelve feet below the grade, however great the precaution and care used in the excavation, so this latter part of the section allows “ the owner or possessor to dig, or cause to be dug, any such cellar, pit, or excavation to the full depth-of any foundation walls of any buildings upon the adjoining lots, and to the full depth of twelve feet below the grade of the street whereon such lot abuts ‘......without incurring any liability for damages ” to any wall, house, or other building upon the lots adjoining thereto, whatever be the manner of excavation, or however negligent the owner may be in taking precaution against the injury.
    This, we submit, is the correct interpretation of the statute.
   Scott, Chief Judge.

The only question necessary to be considered in this case is, whether the facts stated in the defendant’s fourth ground of defense are sufficient to constitute a defense to the plaintiff’s cause of action.

If they are, then the demurrer to it was properly overruled, and as the plaintiffs’ reply consisted only of an admission of the facts which it set up, without alleging any new matter by way of avoidance, the demurrer to such reply was properly sustained ; and then, for want of a sufficient reply to this fourth ground of defense, the defendant was entitled to judgment on the pleadings.

This fourth defense is based on the act of April 28, 1854 (S. & C. 1538), which reads as follows:

“ Seo. 1. That if the owner or possessor of any lot of land, in any city or incorporated village in this state, shall dig; or cause to be dug, any cellar, pit, vault, or excavation, to a greater depth than twelve feet below the curb of the street on which such lot abuts; or, if there be no curb, below the surface of the adjoining lots, and shall, by such excavation, cause any damage to any wall, house, or other building upon the lots adjoining thereto, the said owner or possessor shall be liable, in a civil action, to the party injured, to the full amount of the damage aforesaid. Provided, however, that such owner or possessor may dig, or cause to be dug, any such cellar, pit, or excavation, to the full depth of any foundation-walls of any buildings upon the adjoining lots, and to the full depth of twelve feet below the grade of the'street whereon such lot abuts, established by the corporate authorities of any such city or incorporated village, without incurring the liability prescribed in this act.”

It is to be observed that the plaintiffs’ petition does not charge the defendant with malice or wantonness, or even with a want of proper care in the manner of making the necessary excavation for a cellar on his own lot. Their only complaint is that he dug his cellar to the depth of twelve inches below the foundation of their store-house and cellar, and “ knowingly, wrongfully, and negligently and without using due and proper care and precaution to prevent injury to the building occupied by plaintiffs, left said excavation open and unwalled, and plaintiffs’ foundation-walls wholly unprotected and exposed for ten days, whereby plaintiffs’ building was broken and fell to the ground,” etc.

Nor do the plaintiffs state any facts which render their right to the use and enjoyment of lot eighty-four, for the purposes,of building and cellarage; iu any respect superior to the right of defendant to use and enjoy his adjoining lot for similar purposes.

What the rights of the parties would be in a case like the present, independent of statutory regulations, it would bo superfluous to inquire. The statute we have quoted was iu full force when the plaintiffs’ supposed cause of action arose. As a matter of police regulation, its validity can not well be questioned.

Under the provisions of this statute wc think it clear that when the owner of a village of city lot erects a building thereon, it is at his own peril if he so constructs it that the owner of the adjoining lot can not dig a cellar thereon to the depth allowed by the statute, without endangering its safety. The defendant in this case, for a proper purpose, and with no improper motive, used his lot in a manner expressly authorized by law. The plaintiff's could not legally abridge his right to do so, by their unsafe manner of constructing their foundation-walls, which should have been self-sustaining, without the support of the defendant’s contiguous earth, which he had a right to remove. And if to the depth of twelve feet from the surface the plaintiffs had no right to claim that their walls should be-supported by the contiguous soil of defendant, then the latter wms under no obligation immediately or within ten days to furnish other support in lieu of the earth removed. The. nonfeasance complained of was therefore damnum absque injuria.

We think the District Court properly affirmed the judgment of the Common Pleas.

Judgment affirmed.

Day, Wright, Johnson, and Ashburn, JJ.,'concurred.  