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Lusardi v. Kensington Building Corp.11/29/2005
court enjoined the defendants "for four months from mining closer than five feet of the line dividing the mines, unless the plaintiff should sooner get to the same level the defendants were then working, which was about twenty feet below that of plaintiff's mine." Id. at 529. In reversing, the Western District characterized the principal question as involving lateral support in working deep mines andstated in relevant part:
The principle is elementary that every land-owner has a right to have his soil preserved intact as against its own weight and the ordinary effects of the elements, and an adjoining owner who excavates so near to the line of his neighbor's land, as to cause the same to crumble or fall away, is liable for all damages ensuing therefrom; but if the character of the adjoining soil is such that it will and does sustain its own weight and the natural pressure thereon, by the power of its own coherence, without the aid of the support of the surrounding soil, the adjoining owner may remove his soil without liability to damage. No damage is recoverable unless there has been an actual disturbance of the integrity of the soil.
Id. (emphasis in original). Due to the subsurface supports in the plaintiff's mining area, the Western District concluded that " he inference is indisputable" that, even if the defendants had mined up to the dividing line between the two mining operations,
either the wall nor the surface of the ground above it would have caved in or given away in consequence of the withdrawal of . . . material by the defendants from their side of the dividing line. The natural conditions on the plaintiff's side up to that point would have remained unchanged. The integrity of the plaintiff's land in all of its entirety would have remained intact in so far as it would have been affected by the defendants' mining operations.
Id. at 531. The court of appeals went on to conclude "the defendants had the right to mine [in an ordinarily prudent manner on their own land in the vicinity of the plaintiff's land] without hind rance from the plaintiff." Id. at 533-34. The Western District observed,
f the defendants, in taking out [the material] along the dividing line, failed to exercise ordinary care, or . . . did so negligently, whereby there was a caving in or sliding down of the ground from the plaintiff's side, or whereby other injurious consequences ensued, the defendants would be liable therefor.
Id. at 534. The appellate court found no evidence the defendants would fail to exercise the ordinary care required for such mining, and found that the defendants were solvent so that the plaintiff could "be fully compensated in damages for injurious consequences recoverable in an action at law." Id. Therefore, the Western District concluded, there were "no grounds for resorting to the extraordinary remedy by injunction, since the law afforded plaintiff an adequate remedy for the injury threatened." Id. at 534-35.
The Western District subsequently recognized that the lateral support doctrine, including the principle that " o damage is recoverable unless there has been an actual disturbance of the integrity of the [plaintiff's] soil," has been followed because "our own courts have held to the same doctrine without a break." Gates v. Fulkerson, 107 S.W. 1032, 1034 (Mo. App. W.D. 1908). Therefore, "the mere fact the defendants excavated the lot up to the line between themselves and the plaintiff, and thereby removed the lateral support of [the plaintiff's] land, afforded [the plaintiff] no cause of action against them for so doing. It should have been shown that in so doing they failed to use ordinary care, which resulted i
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