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Assuming now that the land of Smith would have fallen in its natural state because of the excavation, and that it would not have fallen because of the weight of the building if Jones had not dug excessively, Jones is liable for any damage to Smith's land caused by the excessive excavation and not enhanced by the weight of the buildings; but under the law of most American jurisdictions, probably his legal liability would not extend to the damage to the buildings (2). A few of our states, however, hold a contrary view.

§ 7. Duty of excavator to use care: Notice. Though the possessor of improved land has no right to demand sufficient support for his buildings from the land of his neighbors, he has a right to insist that operations on neighboring land shall be carried on with reasonable care and regard for the stability of both his land and his buildings. This is a right which must be kept quite distinct 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 depend upon the circumstances of the case. Ordinarily it will be prudent for the excavator to give notice to the neighbors of the nature and extent of his proposed operations. Neglect to give this notice may result in liability if damage occurs, provided the neighbor does not happen to have already the knowledge which the notice should

(2) Gilmore v. Driscoll, 122 Mass. 199. Compare Gildersleeve v. Hammond, 109 Mich. 431.

give (3). It is best to serve a dated notice in writing to all persons who may be affected, and to keep a copy.

§ 8. Same: Shoring up adjoining land. It is not a legal duty of the excavator to go to great expense to shore up a neighbor's land or buildings, except in so far as is necessary to furnish sufficient support for the land in its natural state. Generally speaking, the neighbor must look out for the stability of his own structures and the sufficiency of their foundations. Reasonable care on the part of the excavator would exclude, however, any superfluous endangering of the neighboring building by the method of excavation, though it would not prevent him from digging up to the division line.

§ 9. Legislation. In some of our states there are statutes modifying in some respects the common law on some of the preceding points in this chapter. Some of these statutes require notice of an excavation to be given adjoining owners. Some extend the duty of lateral support in favor of adjoining buildings in certain localities, if the excavation proposed is to be more than a certain depth, provided the owner of the adjoining land will give permission to the excavator to enter on his land for the purpose of providing the necessary security. The local statutes and ordinances should be carefully examined on these points.

§ 10. Light and air. A right to have light and air come to his land over that of his neighbor is not included among the ordinary rights of a land-possessor. Jones, owning land entirely surrounding that of Smith, in the

(3) Shultz v. Byers, 53 N. J. L. 442.

absence of some special right obtained by agreement or prescription by Smith or his predecessors in title, may so enclose Smith's lot with buildings as to shut off all light and fresh air from Smith's house, without committing any legal wrong against Smith. If Smith's house completely covers his lot, Jones, by building close along his side of the boundary lines, legally may wall up Smith's windows.

The land-possessor has, however, some rights concerning light and air against his neighbors and others as well. To pollute the air passing to his land, rendering it unwholesome or making it unreasonably unpleasant is a violation of his rights. In the case of mere unpleasantness, there is no legal wrong, if such a condition of the air is a reasonably necessary effect of the uses to which the neighborhood is devoted. Also, it is a legal wrong so to affect the light passing to a lot as to make it harmful or unusually annoying to occupants-as, for instance, by dazzling reflections from a mirror-like surface.

§ 11. Protection of comfort: Ordinary annoyances. Esthetic tastes. Every possessor of land must put up with some inconvenience and unpleasantness from the use of the lots of his neighbors; especially is this true in a large city. An ordinary amount of smoke blowing from properly constructed chimneys; the ordinary noises of domestic and business occupations; the cries and play of children; the shutting of gates and doors; singing and instrumental music, now and then-such incidents of life in a thickly settled neighborhood must be endured without legal redress, if, indeed, they are found annoying and

cannot be avoided by the sufferer. Furthermore, the law does not protect the possessor of land from shocks to his esthetic sensibilities by imposing duties on his neighbors to respect them in the use of their land. Brown may build a house of execrable architecture and color next to Gray's handsome residence, and thus perhaps cause a considerable decrease in the market value of Gray's property without transgressing the dictates of the law. Brown's son may at intervals, to the despair of Gray, who is a musician, play wretchedly the most untuneful ragtime and keep well within the bounds of legal duty.

§ 12. Same: Unreasonable disturbances. However, such loud and discordant noises, not reasonably necessary, as cause physical discomfort to an ordinary person, cannot be persistently made without violation of the rights of neighbors. Nor can noises, not very unpleasant in themselves, legally be made so continuously or at such unreasonable times as to interfere with ordinary comfort. For instance, the deafening blast of a steam whistle given frequently without purpose, would be a good basis for legal complaint; so also would the constant barking of a neighbor's dog at night; or any other unnecessary frequent noise caused by the neighbor and preventive of peaceful slumber.

§ 13. Same: Criterion of reasonableness. In determining whether something complained of is an illegal nuisance to the physical comfort of a land-possessor, the courts consider its natural effect upon a person of ordinary sensibilities and health. If it would not affect such a person, it is not a legal nuisance, although the plaintiff

may have been very seriously troubled by it. For instance, in a case decided by the supreme court of Massachusetts (4), the facts were that plaintiff was suffering from sunstroke and was thrown into convulsions by the ringing of a church bell by defendant near plaintiff's house. Defendant had been told of the probable consequences of ringing the bell, but continued nevertheless. The court held that there was no legal wrong shown, as defendant's act would not have affected a normal healthy man at all. Plaintiff should have been taken to a more secluded spot if he wished to avoid the ordinary noises of city life. An instructive case to compare with this is Davis v. Sawyer (5), also a Massachusetts decision, in which factory proprietors were enjoined from ringing a bell calling their employees to work early in the morning, because it consistently interfered with plaintiff's sleep. The instruments of industry cannot be stopped as violating legal rights merely because they happen to interfere with the comfort of the sick or infirm of the neighborhood; but they must not be used without reasonable regard to the ordinary comfort of normal healthy persons.

§ 14. Same: Justification of neighborhood. Though a condition produced by the use which a neighbor is making of his land is very annoying and uncomfortable to Lormal healthy persons, the production of it nevertheless may constitute no legal wrong. One of two common justifications may exist to bring the situation within the bounds of right.

(4) Rogers v. Elliott, 146 Mass. 349.

(5) 133 Mass. 289.

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