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Lusardi v. Kensington Building Corp.11/29/2005
n an injury to plaintiff's lot." Id (emphasis added). The Western District found the evidence tended to show the defendants' excavation did not cause the caving in and falling off of plaintiff's lot, and so the Western District reversed and remanded for the trial court to set aside the order granting a new trial and enter judgment on the jury verdict in favor of the defendants. Id.
We discern from these cases that some damage or injury to the plaintiff's property must occur before the plaintiff may establish a neighboring property owner's liability for damages for the withdrawal of lateral support, and, at least some physical change or disturbance in the property is necessary to establish such damage or injury. Such a physical change in property is a "subsidence." In the discussion of the cause of action for the loss of lateral support in the Restatement of the Law of Torts, " subsidence [is defined a]s any movement of the soil from its natural position. This movement may be in any direction. It may be of surface or subsurface soil. A shifting, falling, slipping, seeping or oozing of the soil is a subsidence" for purposes of a lateral support claim. Section 817 of the Restatement of the Law 2d, Torts 2d, Comment h on Subsection (1) (1979).
We conclude, therefore, that a subsidence of the plaintiff's land is necessary to state a cause of action for damages for the withdrawal of lateral support. This concurs with the view of a cause of action for the withdrawal of lateral support in the Restatement. Sections 817 and 818 of the Restatement state that a landowner who withdraws the naturally necessary lateral support of another's land "is subject to liability for a subsidence . . . for harm to artificial additions resulting from the subsidence" of the other's land or, when liability is based on the defendant's negligence, the defendant is liable "for harm resulting to the other's land and to the artificial additions on it." Sections 817 and 818 of the Restatement of the Law 2d, Torts 2d (1979). Our conclusion is also supported by our decision in McGurn v. Reichel, in which we found a petition for injunctive relief sufficiently stated a cause of action for loss of lateral support of the plaintiffs' land after the defendants excavated on the defendants' adjoining land. McGurn v. Reichel, 268 S.W. 399 (Mo. App. E.D. 1924). The allegations we found sufficient included allegations that the plaintiffs' land "cave in and f ll away" as a result of the defendants' excavation on the plaintiffs' adjoining land. Id. at 402. In particular, the petition alleged that defendants destroyed the lateral support to which plaintiffs' property is entitled, by digging down defendants' land; that the land is thereby caused to cave in and fall away into a hole made into defendants' property, and that the defendants will continue to remove the earth by their digging away such property, unless restrained by an injunction[,] . . . that plaintiffs' property is made worthless by this conduct of defendants, and that irreparable damage will ensue by the washing away of the lot unless defendants are restrained.
Id.
While we conclude a subsidence is necessary for a loss of lateral support claim for damages, we need not determine the extent of subsidence required because here the allegations of the Lusardis' one countpetition do not mention any subsidence has occurredor is imminentas a result of Kensington's excavation and building of the wall. After setting forth allegations regarding the status and property ownership of the parties, and the excavation by Kensington, the petition contains the following allegations:
5. That thereafter [Kensington] negligently erected a defecti
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