McClelland v. Schwerd

Citations

• 32 Pa. Super. 313
• 1907 Pa. Super. LEXIS 4

Syllabus

<p>Lateral support — Land—Damages.</p> <p>In the case of land which is fixed in its place each owner has the absolute right to have his land remain in its natural condition unaffected by any act of his neighbor; and if his neighbor digs upon, or improves his own land so as to injure this right, he may maintain an action against him, without proof of negligence; but this right of property is only in the land in its natural condition, and the damages in such action aro limited to the land itself, and do not include any injury to buildings or improvements thereon.</p> <p>The cost of restoring the land to its original condition, or of repairing by grading and erecting a retaining wall, is not to be taken as the measure of damages, unless it be shown that such cost would be less than the amount of diminution in value if nothing be done.</p> <p>Where damage to the land by withdrawal of lateral support is both permanent and complete, the owner is entitled, apart from buildings, to have his damages assessed as in the ease of any other permanent injury to the land in its natural state.</p> <p>In an action to recover damages for injuries to land by the withdrawal of lateral support, it is reversible error to admit and submit to the jury for their consideration for any purpose, evidence of the depreciation in the market value of lot as a whole, including the buildings.</p> <p>In such a case evidence as to the cost of putting the lot as far as possible, in as good a condition as it was before, is relevant only for the single purpose of showing that the injury was permanent, in the sense that it was irremediable except at a greater cost, than the depreciation in the value of the lot if left in its unrestored and unrepaired condition.</p> <p>The defendant in such a case is not entitled to instruction that the damages could not exceed the difference in the value of plaintiff’s lot before and after the excavation. He is entitled to instructions that in the event of the jury finding