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RIGHTS IN LAND OF ANOTHER.

BY

JOSEPH WALTER BINGHAM,

A. B. (University of Chicago)
J. D. (University of Chicago)

Associate Professor of Law, Leland Stanford, Jr., University.

INTRODUCTION.

§ 1. Scope of article. Property rights in land which accompany or entitle to possessory control over the land, and property rights in land held merely as security for the performance of some obligation or condition, are considered elsewhere in this work. See the articles on Landlord and Tenant elsewhere in this volume, and on Title to Real Estate and Mortgages in Volume VI. In this article are discussed brifly certain large classes or rights in land which do not fall within either of these groups,

and may be called Rights in the Land of Another; and also certain other classes of rights against specific persons as possessors of land or of interests in land.

§ 2. Use of land involves incidental use of neighboring land. It is evident that no piece of land is used without the incidental use of neighboring land. Light and air come to every lot over other lots; each requires support for soil and buildings from others; any smoke, noise, odors, or vibrations originating on one piece affect neighboring pieces; water comes to and drains off from a lot over other land, subterraneously or on the surface, through natural channels, pipes, or ditches; each can be reached from other places only over intervening land or water. These are but a few of the ways in which the use of one piece of land often involves a concomitant use of another.

Also the use of land may affect detrimentally other land or its use. Brown, in excavating for a building foundation, causes the surface of his neighbor's lot to fall; Smith, in digging a well or in damming a stream, stops the flow of percolating water, or of the stream, to the farm of Hood; Scott starts a stock-yards in a city, and makes the land for miles around undesirable as residence property; the children of Thomas plague the neighbors by playing the pianola all day long.

§ 3. Existence and acquisition of those rights of incidental use. Of course it is impracticable and unnecessary for a person to own or possess all the land of which he may wish to make incidental or supplementary uses, or which his use affects. A right to use or to affect in lim

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ited ways usually may be acquired without possession or ownership, through agreement, for a compensation far below the value of the land, because the agreement would leave to the possessor of the burdened land the right to use it as fully as before, except in so far as abstention. would be necessary to give the owner of the special right bargained for the full enjoyment of that right. Furthermore, a possessor of land may legally use other land incidentally with his own for many purposes and affect it in many ways, without agreement and without permission from the other possessor or owner. Between the potential conflicting claims of neighboring land-possessors concerning extralimital uses and effects, the law draws a line which leaves to each possessor certain restricted reasonably necessary rights and liberties to use and to affect neighboring land and the space above it.

The first chapter will be devoted to a consideration of this line. In the second we shall discuss principally certain additional rights and privileges in another's land, which may be obtained by land-possessors or others; and in the third chapter, we shall take note of some classes of special rights which may be created by agreement, and enforced against only successive possessors of a certain parcel of land-not against persons generally who may happen to infringe them.

CHAPTER I.

ORDINARY RIGHTS OF A POSSESSOR OF LAND IN THE LAND OF HIS NEIGHBORS.

§ 4. Right of lateral support. Obviously the law should forbid neighbors or others to injure the surface of a lot or tract by excavations beyond its boundaries. Therefore we find that a land-possessor has a right to insist that persons in general shall not cause the surface of his land to fall or sag, without contribution from artificial structures or operations on it, through withdrawing the support afforded by neighboring earth. The duty which this right involves is not satisfied by the exercise of the utmost care to prevent injurious results. Liabil ity will exist even though unforseen subterranean conditions have contributed to the fall. Therefore, if Jones makes an ordinary excavation for a house and unexpectedly the adjoining portion of Smith's vacant lot falls into the hole because of some unknown peculiarity of its subsoil, Jones is responsible for the damage. This is so even though Jones has employed an independent contractor to do the work (1).

This burden of support lies not only on the adjoining lots, but on all land where excavation might be made, which would cause the prohibited damage. However, the burden owed with respect to a given lot ordinarily dimin

(1) Cabot v. Kingman, 166 Mass. 403.

ishes as the distance from the lot increases. The liability for an injury of this sort falls on those who made the excavation, those who directed it, and the land-possessor on whose tract it was made, if he permitted it.

§ 5. Subjacent support. If one person owns the mineral deposits under a piece of land and another owns the rest of the land, the possessor of the surface ordinarily has a right of subjacent support from the strata of the minerals, similar to the right of lateral support which we have been considering. The miner, to avoid infringing this right, must leave sufficient ribs and pillars to support the surface, or must supply such support artificially.

§ 6. No right of lateral support for buildings. Suppose that Jones, the immediate neighbor of Smith, digs up to his boundary line so that Smith's house falls. Let us first assume that Jones has conducted his operations in a very careful manner and has given Smith notice of his intentions. If we assume in addition that no part of Smith's earth would have fallen had it not been for the structure upon it, Jones escapes liability. The ordinary right of a land-possessor to lateral support is satisfied by from the right of lateral support which we have been considering hitherto. It imposes no duty to leave any absolute measure of support to land or buildings; it merely requires reasonable care in action. Just what conduct will satisfy this legal demand for reasonable care, will sufficient resisting force to maintain his land in its natural state. He himself must look out for additional support for his buildings.

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