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Lusardi v. Kensington Building Corp.11/29/2005
Opinion Vote: REVERSED.
Ahrens, J. and Cohen, J., concur.
Opinion:
Kensington Building Corporation (Kensington) appeals the monetaryjudgment the trial court entered, after a non-jury trial, on the claim of Dean A. Lusardi, M.D., and Donna Lusardi (the Lusardis) for injunctive relief or damages based on the loss of lateral support for the Lusardis' property due to Kensington's excavation and building ofa retaining wall on property abutting the Lusardis' property.
Kensington pursues two points on appeal. In its first point, Kensington argues the trial court erred in entering judgment in favor of the Lusardis because there was not substantial evidence of the natural condition of the Lusardis' lot and of the failure of the retaining wall to support the Lusardis' lot in its natural condition, due to the evidence of fill dirt on the Lusardis' property in the area of the excavation and retaining wall. In further support of this point, Kensington urges the trial court erred because the Lusardis failed to show the danger to their lot was imminent, any future damage to their lot would be irreparable, or that they would not have an adequate remedy at law for any subsidence that may occur. In its second point, Kensington contends the trial court's judgment in favor of the Lusardis is contrary to law in that there is no cause of action until there is a substantial subsidence of the Lusardis' lot and no such subsidence has occurred. We find the second point dispositive and, therefore, will not further address point one.
We sustain the judgment in a non-jury case unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Lewis v. Gibbons, 80 S.W.3d 461, 466 (Mo. banc 2002); Bruns v. Green, 157 S.W.3d 368, 371 (Mo. App. E.D. 2005).
For its second point, Kensington contends the trial court's judgment in favor of the Lusardis is contrary to law in that there is no cause of action until there is a substantial subsidence of the Lusardis' lot and no such subsidence has occurred. In support of the argument that substantial subsidence is a necessary element of this cause of action, Kensington cites to Easter v. Dundalk Holding Co.. 86 A.2d 477, 480 (Md. 1952). The Lusardis counter that they find no Missouri authority adopting the "substantial subsidence" requirement urged by Kensington, and that a case cited in Kensington's brief, Colombo v. Peters, 108 A.2d 657 (N.J. Super. Ch. Div. 1954), supports the ordering of a defendant to supply artificial lateral support at the defendant's expense under certain circumstances despite the absence of actual subsidence.
Since at least 1856, Missouri has recognized a cause of action for the withdrawal or loss of the lateral support for one's land. Charless v. Rankin, 22 Mo. 566 (1856). "The right to support from the adjoining soil may be claimed either for the land in its natural state, or for it subjected to an artificial pressure by means of building or otherwise." Id. at 570. The parties have not directed us to any Missouri authority expressly addressing whether or not "substantial" subsidence is an element of such a cause of action. There is, however, an early case from the Western District thataddressed the type of property damage needed to support a lateral support claim, Victor Mining Co. v. Morning Star Mining Co., 50 Mo. App. 525 (Mo. App. W.D. 1892).
In that case the plaintiff mining company sought an injunction prohibiting the defendant mining companies from mining on their side at or near the dividing line between the parties' two mining operations, which were on adjoining properties. Id. The trial
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