
    DAMAGES — EXCAVATIONS
    [Hamilton (1st) Court of Appeals,
    June 4, 1914.]
    Swing, Jones and Jones, Concur.
    
      Geo. P. Carrel, Exr. v. Roche-Brunner Bldg. Co. et al.
    1. Excavations to Nine Feet exempt from Damages Regardless of Depth of Adjoining Walls.
    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. Damages for Greater than Nine Foot Excavation Limited to Excess.
    When 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 the whole excavation.
    
      Dempsey & Nieberding, for plaintiff.
    
      Healy, Ferris & McAvoy, Denis F. Cash and Clyde Johnson, for defendants.
    
    
      
      Affirmed no opinion, Carrel v. Roche-Brunner Co. 92 Ohio St. 526.
    
   BY THE COURT

The circuit court of this circuit having put a construction upon Secs. 3782 and 3783 G. C., then found in Secs. 2676 and 2677 R. S., in Hosea v. McGuire, 43 O. C. C. 422 (21 N. S. 599), which judgment was affirmed, no opinion, Klinek v. McGuire, 81 Ohio St. 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.

Swing, Jones (E. H.) and Jones (0. B.) concur.  