Freseman v. Purvis

Citations

• 51 Pa. Super. 506
• 1912 Pa. Super. LEXIS 250

Syllabus

<p>Lateral support — Support of building — Equity—Jurisdiction—Mandatary injunction — Negligence—Act of June 7, 1907, P. L. jJfi.</p> <p>1. A court of equity has no jurisdiction to award a mandatory injunction to compel the restoration of lateral support to a lot on which there is a building in a city of the second class, where no negligence in making the excavation on the defendant’s lot is alleged. Such a bill will be certified to the law side of the court as provided by the Act of June 7, 1907, P. L. 440.</p> <p>2. If one excavates his land, and, in consequence of the removal of this natural support the adjoining land of his neighbor falls, the latter has a right of action, although the excavation was not carelessly nor negligently done. In such case the true foundation of the action is not negligence, but the violation of this property right; but this absolute right of property, which is attached to the soil in its natural condition, does not extend to the buildings and improvements thereon.</p> <p>3. In granting or withholding a mandatory injunction, the court in the exercise of a sound discretion will consider not only the plaintiff’s legal right, but also the existence of a remedy at law and its adequacy; the plaintiff’s delay in invoking the aid of equity until after the defendant, with his knowledge, has completed the work which produces the injurious condition complained of; the place where the work was done, whether upon plaintiff’s land or upon defendant’s land; the presence or absence of negligence in doing the work; the easy compensability of the plaintiff’s injury in money, and the comparative convenience and 'inconvenience which the granting or the withholding of the injunction would cause the parties.</p>