Sargent v. Jaegling

KOFORD, P. J.

Plaintiffs appeal from a judgment following an order sustaining defendants’ demurrer to their amended complaint without leave to amend. The complaint purports to state a cause of action to quiet title and deals with the rights of adjoining land owners.

The allegations in the complaint are as follows: Plaintiffs are the owners of a twenty-live foot sand lot on Lake Street designated as lot A. Defendants own the twenty-five foot sand lot called lot B, immediately east and adjoining lot A. No buildings have ever been erected on either lot. Plaintiffs, as owners of lot A, have “an interest’’ in lot B to the extent of a right defined by specifications of plaintiffs’ rights as abutting land owners to defendants. In stating defendants’ alleged adverse claim the complaint alleges that defendants “claim that these plaintiffs have no right of any kind in said parcel B and that they, said defendants, own said parcel B free and clear of all interest of the plaintiffs

therein

to said lateral and subjacent support and abutment right.’’

The prayer is that it be decreed that plaintiffs or their successors have a perpetual right in parcel B to the extent of lateral and subjacent support of the soil of A by the soil of B and a right therein as an abutment for parcel A, that in ease defendants remove any portion of B furnishing support to A that said defendants or their successors in interest will be under the duty of simultaneously and permanently supporting the soil of lot A in its present and natural state, etc., and for such other relief as may be just and in accordance with law.

The complaint also alleges: That within two years last past the defendants have permitted excavations to be made, not on B, but on the lot east of B, whereby the surface of B has caved off in such a manner that in one place the easterly line of natural level of A has receded one foot six inches, depth not stated. That by reason of the passage of persons over said parcels A and B and by reason of

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the action of the elements, the easterly line of the natural surface level of A will continue to be broken down, etc. Appellants disclaim any desire to sue for damages for tort and so we need not point out the insufficiency of the complaint in that respect. But it should be noticed in passing that defendants are not charged with having excavated their own lot, but with permitting the land owner on their east side to excavate that lot.