Cornet Stores v. Security Trust & Savings Bank

GRIFFIN, J.

This is an action for damages claimed to be due plaintiff under the provisions of section 832 of the Civil Code, arising out of the excavation of a basement on plaintiff’s property which adjoined defendant’s property.

[853]

On January 5, 1951, plaintiff gave notice under section 832,

supra,

to the effect that it intended to make an excavation of 12 feet below the adjacent curb level on its property, for basement purposes; that the notice was given to afford the defendant a reasonable opportunity to protect its property from any damage caused by the excavation; that certain work would be necessary to prevent the defendant’s building from falling onto the property of plaintiff and injuring persons and property; and that it was about to begin the construction of a building on plaintiff’s property.

On defendant’s property, and near the adjoining line, was located a building having a 30-inch foundation. Defendant took no action following this notice. Plaintiff made the excavation and constructed a concrete wall on the property line costing it $4,153, and made demand on defendant for its cost, which defendant refused to pay. After trial by the court judgment was entered in favor of defendant and plaintiff appealed.

It now argues that where an adjoining landowner is given notice, under Civil Code, section 832, of a proposed excavation, and thereafter fails to take any precautions to protect his property, the excavator may take such steps as are necessary to prevent the landowner’s building from falling into the excavation and injuring persons and property, and recover the cost of such work from the adjoining landowner, citing

Eads

v.

Gains,

58 Mo.App. 586;

Christensen

v.

Mann,

187 Wis. 567 [204 N.W. 499, 501, 41 A.L.R. 1192]; and cases discussed in 129 A.L.R. 629.