#### ELIZABETH LUDLOW, Respondent, *v.*THE HUDSON RIVER RAILROAD COMPANY, Appellant.

*Lateral support—when owner of adjoining lamds estopped from asserting right to*— *Effect of deed with habendum*“ *to the uses and purposes*” *of a raib'dad.*

The plaintiff conveyed certain land to the defendant, “ for materials,” *“*to have and to hold * * * to the uses and purposes of said railroad, and for no other or different purpose.” It was understood hy the parties that a part of the land was taken as a source from which to obtain material for other portions of the railroad. By reason of the excavation made for that purpose on such part, the other land of plaintiff was deprived of its lateral support, and slid into the excavation. *Reid,*in an action brought to recover damages sustained by plaintiff by reason of such slide, that she was estopped from claiming the right to the lateral support by her deed, which contemplated the use made of the land by the defendant.

This is an appeal from a judgment for plaintiff, entered on the verdict of a jury at the Columbia Circuit, and from an order denying a motion for a new trial.

The action was brought to recover for damages to land of the plaintiff, by the same sliding down and caving in by reason of excavations and removing of earth by the defendant, at the time of the construction of its road.

*F.*Loomis, for the appellant.

*J. C. Newkirk,*for the respondent.

*240James, J.:

This action was brought to recover for damages sustained by the plaintiff by the sliding down of her land into an excavation made by the defendant adjoining thereto in obtaining materials for the construction of its road-bed. The excavation was made in 1851, 1852, and 1853, and the sliding down was in 1864. The plaintiff had a verdict and judgment.

The principal and the important question presented by this case, is as to the plaintiff’s right to the lateral support of the land excavated and removed, under the facts of this case.

Previous to February, 1851, the plaintiff owned all the land in question. In that month of that year, she, for a valuable consideration, sold and conveyed to the defendant a strip of land across her farm, 100 feet wide, for a roadway for defendant’s railroad, and also another piece of land east of the east line of said roadway, *“for*material,” to have and to hold said parcels of land to said defendant as a corporation, “ its successors and assjgns, to the uses and purposes of said railroad, and for no other or different purpose.” In 1851, the defendant entered upon said parcels of land and began the construction of its road-bed, and continued until finished, and, at the same time, to obtain materials wherewith to construct said road-bed, the defendant excavated and removed the soil from said last named piece, until the excavation reached the depth of thirty feet, thus weakening the lateral support to adjoining lands of plaintiff, to such a degree that the soil slid down into said excavation as alleged in the complaint.

The question of negligence does not arise on this appeal, because the court instructed the jury, *“ if*they found the sliding down of plaintiff’s land was occasioned by excavation on, and the removal of the earth from, the parcel sold 'for materials, the defendant was liable under the law; ” and the same in substance was repeated and assented to by the court, in answer to repeated requests to charge by the counsel for plaintiff.

. The purposes for which defendant desired the land were well known to the plaintiff at the time of executing her deed, and were quite clearly expressed therein; and the presumption is that a price therefor was asked and given commensurate with its value and the *241consequences likely to follow from its excavation and use for the purposes contemplated.

It is clearly apparent that these parcels of land were "of no particular value to the defendant, except for railroad purposes, and the one parcel was only desired for the *material*which might he obtained from it for the purposes of constructing its railroad; and if taken and used for that purpose, it could not longer furnish lateral support to adjoining lands. As the plaintiff owned the entire territory, the part excavated as well as the part which slid down, and saw fit to sell a portion thereof for removal, with the right to excavate and remove, it amounted to a legal consent that the lateral support furnished by such piece of land. to her other land adjoining, might be withdrawn, and thereby released the grantee and his assigns from any damages which might arise to such adjoining soil by any excavation or removal of soil therefrom. The plaintiff is therefore estopped by her deed from claiming damages.

An estoppel arises where one has done some act, or executed and delivered some deed, which precludes him from averring the contrary. Here the defendant did an act authorized by the deed — an act contemplated and expressly authorized by the deed; and hence the plaintiff cannot complain of, or recover for, damages naturally resulting from a proper exercise of the rights authorized. This parcel of land in the hands of the defendant, was not subservient to the obligation of lateral support to adjoining land owned by the plaintiff. The defendant has not a fee-simple, but only a qualified fee; the mere right to excavate and remove earth therefrom for material for its road-bed, terminating with the use, and then reverting to the plaintiff; in substance and legal effect, a license to excavate and remove. In principle, this ease is like that of *Ryckman*v. *Gillis,*recently decided in the Commission of Appeals. In that case the defendant sold a-parcel of land, reserving the right to take clay and sand from a portion of it for making brick. Excavations were made, clay and sand removed,,, and a slide into the excavation resulted, as in this case. The court held - that *“*the doctrine of lateral support, incident to and affecting adjoining lands owned by different proprietors, did not apply to such case.” I repeat, in principle the cases are exactly alike, and both should be decided the same way.

*242Judgment reversed, and new trial granted, costs to abide the event.

Boardman, J.

(dissenting):

When this action was in this court on appeal from a judgment dismissing the complaint, a new trial was granted, and it was held and decided that the action was not barred by the statute of limitations ; that the doctrine of lateral support incident to adjoining lands was applicable, and that the defendant was liable in damages to the plaintiff for the consequences of the excavation made by defendant upon its own lands; and that even if defendant was not absolutely liable for such damages, it would be, if negligently and unskillfully done; and that such negligence and want of skill should have been submitted to the jury, to be passed upon by it as a question of fact.* Such decision covers all the propositions relied upon by the appellant upon his appeal except one. Upon the former trial,- the defendant rested entirely upon the production of plaintiff’s deed of the premises (whereon the excavation was made) “ for materials ” *“*for the uses and purposes of said railroad, and for no other or different purposes.” Now, the defendant has introduced, in addition, certain proceedings whereby it obtained title to said premises by the right of eminent domain, under the statutes for taking lands for railroad purposes. By such proceedings it appears that this piece of land outside the line of the road, was' *“*needed for material for the construction of said road and the maintenance thereof,” and was appraised and condemned to the use of said railroad. This court has lately held that a railroad company cannot acquire title to real estate without the owner’s consent, simply for the purpose of removing materials therefrom for the construction of the road.† If that decision be sound, the defendant acquired no title to the lands outside of the roadw;ay by such proceedings. But in any event the title so acquired did not essentially change the relations of the parties, or diminish defendant’s duties and obligations.

These considerations would lead to the affirmance of the judgment without further remark, were we not referred to a manuscript opinion of Lott, Ch. C., in the case of *Ryckman*v. Oillis, lately *243delivered in the Commission of Appeals. The opinion of the learned judge raises grave doubts of the correctness of this court’s decision upon the former appeal. There is, however, this marked distinction between the two cases: In *Ryckman*v. *Gillis,*by the deed, the land was conveyed, and the right reserved to the grantor to enter upon a certain part of the land granted, and *“*to dig and take therefrom the clay and sand that may be found thereon fit for brick-making.” In the case at bar, the plaintiff conveys to defendant, its successors and assigns, the right of way for track, describing it, and adds, “ together with a piece for materials,” describing the land on which this excavation was made; after which follows the usual clause, with all and singular, etc., and adds, “ to have and to hold the same with the appurtenances unto the said party of the second part,' its successors and assigns, for the uses and purposes of said railroad, and for no other or different purpose.” In the former case the grantor retained no title to the land. If the reservation did not amount to a severance of the clay and sand, so as to constitute it personal property, as in the case of growing trees, it was yet only an irrevocable license to enter, dig and carry away. The grantee alone held the title. Hence the grantor and' grantee were not adjoining owners. But in the present case, the defendant has title in the land conveyed to it by plaintiff. While that title remains the plaintiff has no right of entry thereon. Any interference by her with defendant’s possession, would be a tort, for which trespass would lie.

Concede that defendant’s right of use is limited, and not absolute, it is a title to land which the law tolerates, and the defendant is the possessor of such title and lands.

The doctrine of lateral support can only apply to adjoining owners of land. If such adjoining ownership does not exist, the doctrine cannot be applied. It did not exist in *Ryckman*v. *Gillis,*but it does here. The use of the land is restricted to railroad purposes. But does that give to defendant any greater rights of use of the soil for railroad purposes, than it would possess if no restriction were contained in the deed ? If it does, then a restriction inserted' in a deed to limit the use, will operate as a grant of a right which a full covenant deed would not give.

The precise question having been decided in this court, it should *244be held *res adjudicaba,*and it should he left to a higher court to correct our error, if it be an error.

. For these reasons, I think the judgment and order should be affirmed.

Present—Learned, P. J., Boardman and James, JJ.

Judgment reversed and new trial ordered, costs to abide event.

*

16 Lans., 128.

†

Matter of N. Y. and C. R. R. v. Gunnison, 1 Hun, 496.