§ 3.2 - Lateral Support

• Jurisdiction: Washington

§3.2 LATERAL SUPPORT

Lateral support is a landowner's right to have the soil in its natural condition supported by the soil of adjoining land in its natural condition. 8 THOMPSON ON REAL PROPERTY Ch. 69 (David A. Thomas ed., 2d Thomas ed. 2005).

The right to lateral support ordinarily only applies to the ground and not to any artificial structures in or on the ground. Although courts are not unanimous, the weight of judicial authority is that liability for loss or withdrawal of lateral support is absolute and does not require a showing of negligence. Id. Under the doctrine of lateral support, an adjacent property owner cannot, by altering the natural condition of his or her land, deprive the adjoining landowner of the privilege of using that adjoining land as he or she might have prior to the alteration or excavation. 8 THOMPSON ON REAL PROPERTY §69.02(a) (David A. Thomas ed., 2d Thomas ed. 2005).

Although there are numerous cases dealing with lateral support from adjoining land, the law on nonadjacent support is not well developed. In the usual definition of lateral support, nonadjacent land is not relevant. There are no cases directly on point in Washington, although there are several cases involving damage to nonabutting properties caused by street grading. See §3.2(2)(b)(ii).

The duty of lateral support is a continuing obligation that runs with the land; thus, a subsequent owner of adjoining real property has a duty to maintain an existing retaining wall on the property. Klebs v. Yim, 54 Wn. App. 41, 44-46, 772 P.2d 523 (1989).

(1) Background of the principle of lateral support

In Washington, the right to lateral support is derived from both the common law and the Washington Constitution. Farandis v. Great N. Rwy. Co., 41 Wash. 486, 495, 84 P. 18 (1906); WASH. CONST. art. I, §16 (Amend. 9) ("No private property shall be taken or damaged for public or private use without just compensation having been first made ...."). Both private and public landowners owe adjacent landowners a duty to provide lateral support. Knapp v. Siegley, 120 Wash. 478, 208 P. 13 (1922) (action against private party); Muskatell v. City of Seattle, 10 Wn.2d 221, 116 P.2d 363 (1941) (action against municipality).

(2) Standard of care imposed on adjacent property owner

Depending on the circumstances, an adjacent landowner may have absolute liability for providing lateral support or may be held to a negligence standard only.

(a) Absolute liability

This section discusses a landowner's absolute rights (rights without having to show fault) to lateral support from an adjoining landowner.

(i) Land in its natural state

An adjacent property owner has an absolute right to support of his or her land in its natural state. Therefore, an adjacent property owner is strictly liable for damages caused to land in its natural state by removal of lateral support, regardless of whether the damage was caused by negligence. Simons v. Tri-State Constr. Co., 33 Wn. App. 315, 319, 655 P.2d 703 (1982), review denied, 99 Wn.2d 1001 (1983); Muskatell v. City of Seattle, 10 Wn.2d 221, 230, 116 P.2d 363 (1941).

(ii) Subsidence not caused by weight of improvements

There also is strict liability for damage caused to buildings located on the land if the injured landowner can show the subsidence (sliding, slipping, and sinking of the earth) occurred because of the land's own weight and not as a result of the superimposed weight of the buildings on the property. Simons v. Tri-State Constr. Co., 33 Wn. App. 315, 319, 655 P.2d 703 (1982), review denied, 99 Wn.2d 1001 (1983).

In Farnandis v. Great Northern Railway Co., 41 Wash. 486, 84 P. 18 (1906), damage resulted to buildings on adjacent property from blasting and tunneling for a railroad. The evidence showed that cracks appeared in the earth between the tunnel and plaintiff's buildings 120 feet away from the defendant's tunneling activity, which demonstrated that the soil was settling under its own weight as a result of defendant's activities rather than from the weight of the buildings. See also 8 THOMPSON ON REAL PROPERTY §69.02(C) (David A. Thomas ed., 2d Thomas ed. 2005) (Lateral Support of Land With Buildings).

Fill is considered an "improvement" for the purpose of establishing liability. Bay v. Hein, 9 Wn. App. 774, 776, 515 P.2d 536 (1973). The plaintiff in Bay sought damages for a loss of lateral support resulting in subsidence of a portion of land that was "fill." The court rejected plaintiff's argument that "fill" could become "natural" soil over a period of time on a prescriptive right theory and thus would come under the absolute right of support principle. The court characterized "fill" generally as an improvement, for which damages can be recovered in the absence of proof of negligence only if it can be shown that the fill collapsed due to collapse of natural soil underneath the fill and not as a result of the weight of the fill itself. Id. at 776-79; see also 8 THOMPSON ON REAL PROPERTY §69.02(B) (David a. Thomas ed., 2d Thomas ed. 2005) (entitlement to natural support for land that has been filled is limited only to such support as the land would have needed in its natural state before it was altered or filled). because the plaintiff failed to allege and prove negligence, the court disallowed damages for one portion of the fill. Bay v. Hein, 9 Wn. App. at 779.

(iii) Common grantor

In Bay v. Hein, 9 Wn. App. 774, 515 P.2d 536 (1973), the court imposed strict liability to support improvements in a common-grantor situation. The case involved support of a portion of fill on property formerly owned by the defendant, adjacent to defendant's excavation activities, which resulted in subsidence of the fill. The court stated as a rule that "when an owner erects a building [(improvement)] and subsequently conveys that portion of the land upon which the building is situated, retaining the remainder for himself, support for the building is charged upon so much of the surrounding land as is necessary for that purpose." Id. at 778.

The common-grantor duty is absolute and neither negligence nor the fact that the improvement's weight did not cause the subsidence need be proved. This exception to the general rule regarding improvements is based on a theory of covenants running with the land, i.e., that the grantor who conveys an improvement he or she has constructed has created a benefit for the land so improved and a burden on the surrounding servient estate—benefits and burdens that run with the land. See also 8 THOMPSON ON REAL PROPERTY §69.03(b)(2) (David A. Thomas ed., 2d Thomas ed. 2005) (implied grant of right to lateral support presumed when common owner constructs building in a manner that relies on support of another portion of the owner's property).

(b) Reasonable care

A landowner has no absolute right to the support of buildings or improvements on land. Except in the common-grantor case, the plaintiff must show that the soil would have subsided upon removal of support without the weight of the buildings. This principle flows from the concern expressed in Farnandis v. Great Northern Railway Co., 41 Wash. 486, 84 P. 18 (1906), that otherwise a lot owner could, by erecting heavy buildings on the lot, greatly limit the right of his neighbor to use the adjoining lot. Id. at 492 (citing N. Transp. Co. v. City of Chicago, 99 U.S. 635, 25 L. Ed. 336 (1878)).

(i) Generally

Although there is no absolute right to support of buildings, an excavating adjacent property owner has a duty, under a common-law negligence or tort theory, to use ordinary skill, care, and diligence and to use reasonable means to protect the adjoining land and buildings or other improvements on such land from sliding or being otherwise damaged as a result of the reduced support. Knapp v. Siegley, 120 Wash. 478, 480-81, 208 P. 13 (1922); 8 THOMPSON ON REAL PROPERTY §69.02(b), (b)(2)(ii) (David A. Thomas ed., 2d Thomas ed. 2005) (excavator owes a duty of care to buildings on adjoining land; liability for negligence).

Whether an excavating property owner has breached a duty of care usually is a question of fact for a jury. Several factors are relevant to the issue of excavator negligence, including whether the excavator investigated soil conditions; whether the excavation unnecessarily endangered the buildings; whether the excavator used outmoded methods; whether the excavator proceeded as other experienced excavators would have; and whether the excavator considered weather conditions. 8 THOMPSON ON REAL PROPERTY §69.04(b)(2)(iii) (David A. Thomas ed., 2d Thomas ed. 2005).

(ii) Original grade doctrine

Under the "original grade" doctrine, municipalities have the sole discretion to establish the initial grade of a street, without liability to abutting property owners. Dickson v. City of Pullman, 11 Wn....