Simpson v. Iowa State Highway Commission

UHLENHOPP, Justice

(dissenting from division IV but otherwise concurring).

May a landowner remove gravel or other materials from land adjoining a highway to an extent which causes the highway to subside or in other ways damages the highway? The long-standing and universal rule ,of the common law is that he may not. When the public originally obtains the highway right-of-way, it acquires, under the law, the right to have the highway supported by the adjoining land. This right of support inheres in the original compensation award for the right-of-way. The same principle applies to acquisitions of rights-of-way by common carriers.

I. Following are typical statements of the general principle. The court said this *537 in Levy v. Curlin, 241 S.W.2d 997, 999 (Ky.):

The recognized public prerogative not only includes the user of the public way, but also includes the right to have abutting property owners refrain from any utilization of their property which would interfere with the proper maintenance and improvement of such way. This requires the furnishing of adequate sub-jacent and lateral support.

And in Manning v. New Jersey, S. L. R. R., 80 N.J.L. 349, 352 , 78 A. 200 , 201:

The soil adjacent to the right of way, and to such distance therefrom as may be required for such support, cannot be removed, and the clay therein cannot be mined so as to materially impair such support; or, if it is, the owner must artificially, at her own expense, support not only the right of way in its natural state, but any weight which the railroad use may add to it.

In Adlin v. Excelsior Brick Co. of Haverstraw, 129 App.Div. 713, 715 , 113 N.Y.S. 1017, 1018 , reh. denied, 132 App.Div. 904 , 116 N.Y.S. 1130 :

It is not disputed that the rule of lateral support binds the owner of land along a highway, and that if he wrongfully excavates so close as to cause the highway to cave in he is liable for any damage caused thereby.

In Commonwealth v. Solley, 384 Pa. 404, 408 , 121 A.2d 169 , 172:

An abutting land owner is charged with the duty of furnishing vertical and lateral support to a public highway in its improved condition [citing cases].

In Pollock v. Pittsburgh, B. & L. E. R. R., 275 Pa. 467, 470 , 119 A. 547 , 548:

The adjoining land owner owes the duty of such [lateral] support to a highway as an obligation to the community, and, because of this superior claim, the support extends to the highway in its improved condition; the liability here differs from the duties and rights between adjoining landowners.

In City of Scranton v. People’s Coal Co., 256 Pa. 332, 336 , 100 A. 818 , 819:

But the abutting owner cannot remove minerals from under or adjacent to an established highway in such manner as to cause a subsidence or other injury thereto; and to do so is a nuisance, which in a clear case will be restrained in equity at the suit of the municipality. A street is entitled to such support as will keep it in place, both lateral and vertical. If the removal of coal at the side or underneath will destroy the street it may not be done. But such coal may be removed to any amount that will not injure the highway. And the amount that may be removed is a matter of fact.

See in addition Chicago C. Ry. v. Rothschild & Co., 213 Ill.App. 178, 186 (“Upon sound reason, it appears to us that where an abutting property owner, by reason of excavation, causes the street to be depressed, he should make good the damages.”); Freeholders of Hudson County v. Woodcliff Land Co., 74 N.J.L. 355 , 65 A. 844 ; Village of Haverstraw v. Eckerson, 192 N.Y. 54 , 84 N.E. 578 ; New York Steam Co. v. Foundation Co., 195 N.Y. 43 , 87 N.E. 765 ; Finegan v. Eckerson, 26 Misc. 574, 575 , 57 N.Y.S. 605, 606 (“although, as claimed by the defendants, the right to lateral support between adjoining owners does not include the right to the support of an artificial structure, that doctrine has no application to the case of a highway”); Milburn v. Fowler, 27 Hun 568 (N.Y.); Breisch v. Locust Mountain Coal Co., 267 Pa. 546 , 110 A. 242 . The English decisions are to the same effect. Caledonian Ry. v. Sprot, 1 Pat. 633, 2 Macq.H.L.Cas. 449, 17 Eng.Rul.Cas. 686; North-Eastern Ry. v. Elliot, 1 J. & H. 145, 2 De G.F. & J. 423, 10 H.L.Cas. 333 (bridge). See also Benfieldside Local Bd. v. Consett Iron Co., 3 Ex.D. 54, 47 L.J.Ex. 491, 38 L.T. 530, 26 W.R. 114 (road); *538 Normanton Gas Co. v. Pope, 52 L.J.Q.B. 629 , 32 W.R. 134 (gas pipes); London & N. W. Ry. v. Evans, 1 Ch. 16, 62 L.J.Ch. 1, 67 L.T. 630, 41 W.R. 149 (canal); Note, 17 Eng.Rul.Cas. 554.

The legal writers express the same view. The rule is stated thus in 5 Powell, Real Property, ¶ 700 at 296 (1968) :

When the supported land is an adjacent public highway, the duty to provide lateral support includes the duty to support the highway in its improved condition.

And in 3 Nichols, Eminent Domain, § 9.221-[1] at 291 (3rd ed.):

Thus, at common law the right of lateral support is limited to the land ' in its natural condition; but the establishment and construction of a highway or a railroad imposes upon adjacent land the burden of supporting the completed structure and the vehicles travelling thereon, so that the adjoining owner cannot lawfully remove such support by excavations upon his own land and impair the safety or convenience of travel upon the public easement.

In 10 McQuillin, Municipal Corporations, § 30.38 at 705 (3rd ed.):

But, of course, the abutting owner cannot remove minerals from under or adjacent to an established highway in such manner as to cause a subsidence or other injury thereto; and to do so is a nuisance which in a clear case will be restrained in equity at the suit of the municipality. A street is entitled to such support as will keep it in place, both lateral and vertical. If the removal of coal at the side or underneath will destroy the street, it may not be done. But such coal may be removed to any amount that will not injure the highway. And the amount that may be so removed is a matter of fact and can be determined by evidence.

In 2 Thompson, Real Property, § 415 at 651, 653 (1961):

On the other hand, a landowner whose land adjoins a public highway has no right to do an act on his own land outside of the limits of the highway which will make the way inconvenient or dangerous, nor has he a right to deprive the highway of the lateral support given it by his adjoining land. .

The right of the state to lateral and adjacent support of highways is superior to that of an ordinary landowner. An abutting landowner is charged with the duty of furnishing vertical and lateral support to a public highway in its improved condition.

And the editors say this in 39 Am.Jur.2d Highways, Streets & Bridges § 171 at 546, § 186 at 564;

The preservation of lateral support to a highway, as constructed and prepared for the public use, is an obligation of the abutting landowner to the community, irrespective of whether the fee of the highway is in the public, or whether it has merely an easement for a right of way. The application of the doctrine of lateral support in the case of a public highway is somewhat broader than it is with regard to adjoining landowners, in that in the case of adjoining landowners the right is only to the support of the land in its natural state, while in the case of a highway the improvement of the land to fit its intended use as a public highway may tend to add to the lateral pressure. .

As a rule, the commission of unlawful acts injurious to the proprietary rights of the public authorities in highways and streets may be enjoined. For example, where the acts of persons menace the condition of a highway directly or indirectly, by so digging or excavating upon the adjacent land as to affect the lateral support and to cause or threaten the subsidence of the highway, the exercise of the equitable power of the court may properly be invoked by the public in restraint of the continuance of such acts.

*539 II. The law is equally clear that when a highway right-of-way is originally acquired, whether in fee or by easement, the landowner is entitled to have this duty to provide support to the highway taken into consideration in his damages. As stated in a case in which a landowner was restrained from endangering a bridge by mining (North-Eastern Ry. v. Elliot, 2 De G.F. & J. 423, 432), “He suffers no hardship from the restraint, for when the value of the land on which the bridge was to be erected was estimated the possible deterioration of the adjoining land, by reason of the support required from it, would necessarily be taken into consideration.”

The manner in which the compensation problem may arise when the right-of-way is originally acquired is illustrated by Manning v. New Jersey, S. L. R. R., 80 N.J.L. 349, 350, 352 , 78 A. 200, 201 . In the original condemnation damage case, the trial court instructed the jury:

The plaintiff [landowner] is bound to support laterally the defendant’s [railroad’s] land to the extent only that the latter remains in its natural condition and not for any superimposed weight by the defendant.

The plaintiff appealed from the damage award, asserting that this instruction was erroneous. The appellate court reversed, holding that the instruction was indeefl wrong:

The soil adjacent to the right of way, and to such distance therefrom as may be required for such support, cannot be removed, and the clay therein cannot be mined so as to materially impair such support; or, if it is, the owner must artificially, at her own expense, support not only the right of way in its natural state, but any weight which the railroad use may add to it.

See also William E. Russell Coal Co. v. Board of County Comm’rs, 129 Colo. 330 , 270 P.2d 772 . The court there held that the public officials, on originally condemning, are without authority to give up the right of support of the highway in their effort to reduce the damages the landowner may claim. And see Pennsylvania Turnpike Comm’n Appeal, 351 Pa. 139 , 40 A.2d 404 (condemnation for highway includes subjacent strata as needed to support highway); Lehigh Valley Coal Co. Appeal, 351 Pa. 108 , 40 A.2d 399 (same).

Iowa law is consistent with the rule followed generally that when land is taken for public use, the servitudes and burdens cast upon adjoining land are presumed to be taken into consideration. As stated in Liddick v. City of Council Bluffs, 232 Iowa 197, 236 , 5 N.W.2d 361 , 381:

It is true that when damages are assessed or compensation awarded in the condemnation of land for a highway, the assessing tribunal may be presumed to have taken into consideration all reasonably foreseeable uses, improvements, disadvantages, and servitudes in connection with the highway which might impair the use of, or depreciate the value of, the remainder of the abutter’s property. And it is a sound policy that an assessment ought, if reasonably possible, be made once for all time.

All of the decisions which have heretofore been cited, except four, involved incidents which occurred considerably after the original acquisition of the right-of-way. In stating that the adjoining land must furnish support to the right-of-way, those decisions necessarily held that such right of support was acquired with the right-of-way and that compensation for the right of support necessarily inhered in the original award. Otherwise, those decisions would have held that a new condemnation or purchase was necessary in order to have the right of support. The four cases which arose in the original condemnation proceedings (the Manning, William E. Russell Coal Co., Pennsylvania Turnpike, and Le-high Valley cases) demonstrate that the obligation to support the highway is involved in the original damage award.

*540 In support of the contrary contention- — • that the original acquisition here did not include the right of the public to support of the highway — several Iowa cases have been cited, but they do not involve the right of support of the highway. Rather, they involve additional rights claimed by the public which manifestly did not inhere in the original condemnation award. Liddick v. City of Council Bluffs, 232 Iowa 197 , 5 N.W.2d 361 ; Anderlik v. Iowa State Highway Comm’n, 240 Iowa 919 , 38 N.W.2d 605 ; Mapes v. Madison County, 252 Iowa 395 , 107 N.W.2d 62 ; Harrison-Pottawattamie Drain. Dist. v. State, 261 Iowa 1044 , 156 N.W.2d 835 .

In Liddick, the street grade was established in 1880 and the abutting owners improved their properties accordingly. Years later, the public authorities proposed to erect a viaduct over the street, with earthen approaches 246 and 266 feet long and with an overhead section 1,760 feet long supported by 23 sets of concrete piers. No viaduct was contemplated in 1880, and the proposed viaduct would cause the abutting property owners substantial damages from reduced access, light, air, and view. This court held that such damages were new and did not inhere in the original award. Condemnation for a street or highway necessarily contemplates that the way will have to be supported but does not contemplate that a large viaduct will be built later which causes substantial damage. Ander-lik involved the same type of situation, and this court adhered to the Liddick decision. These cases are in accord with the general rule on interference with access, light, air, and view. 29 Am.Jur.2d Highways, Streets & Bridges § 163 at 538-539; 39 C.J.S. Highways § 141, at 1079.

Mapes involved a road which was negligently built so that earth from the road slid off onto the adjoining land. This creates liability. 26 Am.Jur.2d Eminent Domain § 165 at 837-839; 29A C.J.S. Eminent Domain § 110 at 447. The Harrison County case involved flooding of adjoining land and interference with drainage there. That may not be done without incurring liability. 26 Am.Jur.2d Eminent Domain § 165 at 838; 29A C.J.S. Eminent Domain § 117 at 471. All of these cases deal with situations different from the present one. They all involve situations in which additional compensation is recoverable under recognized principles of law.

Also cited is Talcott Bros. v. City of Des Moines, 134 Iowa 113 , 109 N.W. 311 . But that case is not analogous — it involved the right of the adjoining land to lateral support. The conclusion reached in that case is contrary to the rule of numerous cases that adjoining land is entitled to such support from a highway. See 26 Am.Jur.2d Eminent Domain § 176 at 853, § 204 at 887; 39 C.J.S. Highways § 141 at 1080, § 143 at 1088. Talcott was overruled in Liddick v. City of Council Bluffs, supra.

Quotation has also been made from Pacific Indemnity Co. v. Rathje, 188 N.W.2d 338 (Iowa). That case involved two private landowners, not a highway. The rule is unquestioned that private landowners are not entitled to lateral support for structures except when a grantor conveys part of his land with a view to the construction of a structure on the part conveyed — a matter which will be taken up later.

III. Implicit in the authorities is at least one basis of the doctrine requiring adjacent support of highways as improved — simple necessity, the necessary protection of the thousands of miles of public ways. Courts which have dealt expressly with the question, however, have based the doctrine on implied easement. The law in England is that when a landowner conveys land for a public way, he impliedly warrants he will not use his remaining land in derogation of his grant by removing support of the way. Caledonian Ry. v. Sprot, 1 Pat. 633, 2 Marq. H.L.Cas. 449, 17 Eng.Rul.Cas. 686. The same basis has been held in this country to underlie the doctrine. Freeholders of Hudson County v. Woodcliff Land Co., 74 N.J.L. 355 , 65 A. 844 . And this is so whether the public way is acquired by conveyance or by condemnation. Manning v. New Jersey, S. L. R. R., 80 N.J.L. 349 , 78 A. 200 . See 3 Tiffany, Real Property, § 792 at *541 283 (3rd ed.) (“So, if one conveys land for railroad purposes, the conveyance involves in effect a grant of the right to construct and operate the railroad in a proper manner, even in derogation of the grantor’s natural rights as regards land retained by him, and such an easement is likewise vested in the railroad when the land is taken under condemnation proceedings.”).

In so holding, the courts analogize the conveyance or condemnation for highway purposes to the situation in which a landowner conveys part of his land to another private person with a view to the construction of improvements on it. In that situation the landowner impliedly grants lateral support to the land conveyed as thus improved. Stevenson v. Wallace, 27 Grat. 77 (Va.); Rigby v. Bennett, 21 Ch.Div. 559; Siddons v. Short, 2 C.P.Div. 572, 577 (“where a man parts with land knowing that substantial buildings are intended to be erected upon it, he impliedly engages so to use his adjoining land as not to injure or interfere with those buildings”) ; 5 Powell, Real Property, |f 700 at 293-294 (1968) (“A similar implication can properly be made when the portion of land sold would not be useful for the known purposes for which it was bought without lateral support for its proposed structures.”). This court recognized the rule in that situation in Starrett v. Baudler, 181 Iowa 965, 972-973 , 165 N.W. 216 , 218 (quoting from Dalton v. Angus, 6 L.R.App.Cas. 740: “ ‘If at the time of the severance of the land from that of the adjoining proprietor it was not in its original state, but had buildings standing on it up to the dividing line, or if it were conveyed expressly with a view to the erection of such buildings, or to any other use of it which might render increased slip port necessary, there would then be an implied grant of such support as the actual state or the contemplated use of the land would require’” — italics added).

IV. ^Thus in the present case, when the right-of-way was originally obtained the public acquired as one of its rights the right of support of the highway by the adjoining land. The public is not now required to go back and show how such right was obtained in those original proceedings any more than it is required to show how it then acquired the right to lateral support of the right-of-way in a natural condition or the right of subjacent support. All of those various rights are part of the bundle of rights which, under the law, the public acquired when it originally obtained the right-of-way. Those rights inhere in the original award.

But the public is not now seeking to prohibit the adjoining landowner from using his land in a manner which will damage the bridge. Rather, the stream is threatening future damage to the bridge. The adjoining landowner cannot be required to harness the stream so as to protect the bridge. See Beal v. Reading Co., 370 Pa. 45 , 87 A.2d 214 . In obtaining an easement on 2.8 acres for jetties, the public is acquiring more than it now has, and it must pay compensation for the easement. 3 Nichols, Eminent Domain, § 9.221 [1] (3rd ed.), 1971 Supp. at 61 (“However, if the condemnor extends its activities beyond the acquired right of way to the damage of the abutting owner, there is a taking in the constitutional sense.”).

Despite the future damage which the stream might cause, however, plaintiffs as adjoining landowners have no right so to use their land as to damage the right-of-way as improved or to hasten or increase damage which the stream might cause. If removal of gravel from the 2.8-acres would do so, then, under the universal rule of the decisions, plaintiffs cannot remove such gravel, at least, not to an extent which would cause such damage. On retrial, the highway commission should be permitted to try to show what the facts are in that connection, as bearing on the damage that plaintiffs will actually sustain from the easement for the jetties.

RAWLINGS and LeGRAND, JJ., join in this dissent.