#### Wier and Bell’s Appeal.

1. The defendant’s land was on a steep slope of a hill, and was used fori quarrying stone; the plaintiff, who adjoined, made a roadway by embanking and supported it by a wall. Defendant by stripping his land and quarrying brought down the plaintiff’s land, without reference to the wall and embankment. The defendant" was enjoined from quarrying, excavating, or stripping his land so near plaintiff’s -as to take away the natural lateral support, with privilege to defendant to make a nearer approach upon making a substantial support to plaintiff’s land.

2. The rule as to excavation by adjoining landholders examined and stated by the Master in this case.

October 29th, 1874.

Before A&new, C. J., Sharswood, Williams, and Mercur, JJ.

Appeal from the Court of Common Pleas of *Allegheny County.*In Equity. Of October and November Term, 1874, No. 215.

On the 6th of March, 1869, William A. Reed filed a bill against Thomas M. Bell and John Wier; it set out:

1. Plaintiff owned a tract of land in Allegheny City near the summit of “Spring Hill,” containing about ten acres, the roadway along the southwestern line being the only and necessary means of access to a large portion of the land..

2. The defendants had stripped, excavated, and quarried a large quantity of earth and stone on the land immediately below the premises in so negligent, unusual, aud unreasonable a manner as to cause a large portion of the plaintiff's land and roadway to be loosened and slide, with the wall made by him for its protection, into the excavation so made by *204the defendants, thereby depriving him of the use of so milch of the land, roadway, etc.

3-4. The defendants claimed and threatened to exercise the right to strip oft*, excavate, and quarry earth and stone on their own adjacent land, and remove the same up to the plaintiff's line, which would render a great portion of the remainder of his land useless, and cause irreparable damage to it, and his right, use, and enjoyment of his property would be further invaded, and in a great part taken away.

1. The prayer was for a preliminary and afterwards a perpetual injunction to restrain the defendants from further injuring or in any manner interfering with the plaintiff’s right, etc.

. ""2. For the appointment of a Master -to ascertain the amount of damage sustained by the plaintiff; and

3. Further relief.

The defendants answered:

1. They denied that the roadway was the only and necessary means of access to plaintiff's land.

2. They denied that they had stripped and quarried in their adjacent land in so negligent and unreasonable a manner as to cause the plaintiff’s land and. roadway to be loosened, etc., and with the wall to slide into the excavation made by the defendants ; and that they had deprived him of the use of his land, etc., as alleged in the first and second paragraphs of the bill. On the contrary, they averred that they had used their own land and stone quarry in a lawful, usual, proper, careful, and reasonable manner, etc.

They averred that the plaintiff carelessly, negligently, and improperly erected on the line between their lands a loose stonewall, composed of small stones, without mortar and without sufficient foundation, and plaintiff had excavated the soil and earth on his land, and thrown them with stone against the wall, making a heavy embankment and raising it considerably above the natural surface; that the water and drainage from his laud was carried into the embankment, creating additional weight and pressure, and had turned the water across his excavation or roadway, and permitted it to flow upon defendants’ land, causing it to slide; all the sliding of plaintiff’s and defendants’ ’land resulted from his negligence, and the legitimate consequence of the erection of the wall, roadway, and embankment, not from any wrongful act of defendants. The plaintiff had entirely changed the surface and natural condition of his land along the line, and by reason of the construction of the wall, embankment, etc., and turning the water from its- natural course and creating an artificial pressure against defendants’ *205land for a distance of 240 feet, the plaintiff was causing defendants’ land to slide down the hill to their great injury.

8. Defendants owned the land along the line of the plaintiff, having purchased it for quarrying stoue for building purposes in a lawful and proper manner, as they claimed they had the right to do, even up to the line of the plaintiff, who had stripped and excavated a portion of his own land adjacent to the defendants’, and quarried stone therein; they had not, in any instance, approached plaintiff within less than thirteen feet of the line ; the main break in the plaintiff’s wall was one hundred and forty feet from their quarry, aud was not the result of any acts of the defendants or their servants. Defendants denied that they intended to quarry, etc., on their lauds so as to render any of plaintiff’s land useless or unsafe.

4. They denied that plaintiff’s right of property, etc., had been or were likely to be invaded, etc., or i rreparable damage done to him by negligent and unreasonable quarrying, etc., by defendants. They denied that the plaintiff e'ver had any easement on the land of defendants, or any right of support for his wall, roadway, or embankment; or, that he had any right whatever to the use of defendants’ land for any purpose, or was in possession or enjoyment of any right, corporeal or incorporeal, belonging at any time to the defendants, or to the owners of the land whereon the acts complained of were alleged to have been done, as forming part of it or in any way appurtenant to it; defendants were absolute owners of the land adjoining the plaintiff’s, and had the right to use and enjoy it in a proper and lawful manner; they had not done otherwise.

A replication was filed, and Thomas C. Lazear, Esq., was appointed Examiner and Master.

He reported:

. . . “ The plaintiff and defendants are the owners respectively of two adjoining pieces of land, situated in the seventh ward of the City of Allegheny ; both derived their titles through William Coleman ; the plaintiff’s title was prior in date to that of the defendants’. The defendants’ land lies immediately below the 'plaintiff’s, on a steep hillside, having a slope o^inclination of from 45 to 55 degrees, and was purchased and has been used by them for the purpose of quarrying stone, of which it contained a large quantity, constituting its principal value. The plaintiff’s laud, consisting of about ten acres, near the summit of Spring Hill, is occupied by him as a place of residence.

“ Some time in the month of February, 1869, while the defendants were engaged in quarrying their land, and when-*206they had excavated the ground for this purpose up to a point about thirteen feet from the line of plaintiff’s land (that being the distance from the edge of the stripping of the quarry), a slip or sliding of the soil occurred within this place of about forty feet in extent, in consequence of which a large portion of a roadway, along the plaintiff’s line, and within his own premises, together with a stone wall which had been built to support it, also fell away from its place, and slipped over on the land of the defendants, a part of it falling into the excavation made for their quarry.

“ The plaintiff alleges that this accident and injury to his property was caused by the said excavation, and his bill was accordingly filed in this case to restrain the defendants from further disturbing or interfering with him in the enjoyment of his property, and also for the purpose of ascertaining and fixing the damages alleged to have been sustained by him iu the premises.

“ The defendants deny, however, all the allegations of the bill charging them with any default on their part as the cause of the accident, and say that it was the result of other causes, and especially of negligence, want of skill, and improper conduct on the part of the plaintiff in the construction of the wall and roadway aforesaid. And they further claim the right to quarry and remove the stone on their premises in a lawful and proper manner, even up to the line of plaintiff’s land.

“ The inquiry as to the cause of this accident was, therefore the principal question of fact before the Master, and to this the testimony taken before him was mainly directed.

“ Was there any negligence, want of skill, or improper conduct on the part of the plaintiff in the construction of this wall and roadway, which in any way caused or contributed to produce the mischief complained of? If not, was it attributable to the excavation made by defendants in working their quarry ? These are obviously the principal points of inquiry that arise in determining, under the evidence, whether the plaintiff is entitled to the relief prayed for in the bill.

“ Now, as respects the wall and roadway in question, I find that the latter was a private road, and really -itécessary as a means of access for the plaintiff to a large portion of his land, and that owing to the steepness of the hillside where it was located a stone wall was equally necessary to support it.

“ This wall, and the road built- upon it, were made some time in the year 1862, within and along the southwestern line of plaintiff’s land, soon after he had purchased it.”

*207The Master then described the manner of constructing the .wall and roadway.

“ I find that this wall and roadway were made and con - structed in the'usual manner, of proper materials, and with due care and skill in reference to the purpose for which they were designed, and if they were in any degree the cause of the accident it could only be because, as alleged by the defendants, they were the occasion of some action of water, or increased pressure of the earth naturally tending to produce such a result.”

The Master then stated the facts bearing on this point.

“I think the preponderance of the evidence is against this theory, for it shows that the water, which in times of rain flowed along the roadway, went past and beyond the place of the accident, and that none was concentrated or collected there sufficient to produce the result ascribed to it. Nor am I able to iiud from the evidence that the weight of the wall and roadway had any direct agency in bringiug it about.

“The point then next to be considered is whether the slide or accident was caused by the excavation made by defendants in working their quarry?”

The Master stated the facts on this point.

“In view of all these facts, and supported by the opinion of the witnesses who had examined the premises both before and after the occurrence of the accident, I find that it was caused, not by plaintiff’s wall and roadway, but by the act of the defendants in digging and excavating the soil for their quarry too near the line of plaintiff’s land. I further find that for want of the natural support thus taken from plaintiff’s land, a portion of his soil would have subsided and fallen into and upon the defendants’ premises, even if the wall and roadway aforesaid had not been made. I also find, that if defendants’ quarry should be worked with a perpendicular face, as it has been worked, up to the plaintiff’s lino, this subsidence and sliding of the soil would then extend back on plaintiff’s land nearly to the cone of the hill, or a distance of about one hundred feet, and would thus materially injure, if it would not wholly destroy, that portion of his property for its natural uses. The wall of the quarry would then he about one hundred feet in height, the depth of soil and shale together over forty feet above the solid rock, so that the result above indicated -would inevitably take place, from the tendency of the ground to assume the line of natural slope.

“ Such being the facts of the case, as I think the evidence warrants me in finding, the next inquiry is, whether, notwithstanding all this, the defendants have in law the right *208claimed by them to quarry and remove the stone on. their land up to the line of the plaintiff’s land, even though it should result in a subsidence and loss to the plaintiff "of a portion of his soil., . . .

“ The rule to be observed where the rights of parties relate to the soil in its natural state, is generally stated to be that neither shall excavate his own soil so as to.cause that of his neighbor to be loosened and fall into such excavation: Washburn on Easements, 514.

“ The right to lateral support must be regarded as an incident to the land. It is a right of property necessarily and naturally attached to the soil: Farrand *v.*Marshall, 19 Barbour, 380; S. C., 21 Barbour, 409 ; Humphrey *v.*Brogden, 12 Q. B , 739; (64 English Com. L. R.); Jones *v.*Wagner, 16 P. F. Smith, 429. 'And even if the pressure on the soil has been increased by buildings erected on it, a person is answerable for removing the natural support from it, if the soil would have sunk without the buildings: Strogan *v.*Knowles, 4 H. & N., 186 ; Hantner *v.*Knowles, 6 Id., 454.

“ A man’s dominion of his land is not unrestricted, but the law has admitted a qualification to it, requiring the. proprietor so to use his own as not to injure the property or impair any actual existing rights of another. Hence the maxim, *sic utere tuo ut alienum non laedas.*

“Every man has a right to the undisturbed possession of his own land; but no man has a right to the unrestricted enjoyment of that possession. He may not so use it as to make that use destructive of his neighbor’s rights. The neighbor has the same right to the undisturbed possession of his ovtn land that he himself claims. He must, therefore, use his land in subordination to such right: Farrand *v.*Marshall, *supra.*

“ And again, it is said in Hay *v*Cohoes *Co.,*2 Comst., 159, ‘ it is better that one man should surrender a particular use-of his land, than that another should be deprived of the beneficial use of his property altogether.’

“ I am therefore of opinion that, notwithstanding the defendants have carried- on their operations iñ a careful and customary manner, so far as the- mode of quarrying is concerned, they should be restrained from approaching the line of plaintiff’s land so near as to cause his soil to subside, and fall away from its natural’ state and condition. The injury complained of occurred when the stripping of the quarry had reached a point thirteen feet from the plaintiff’s line, and this indicates that the work should certainly not progress any further in that direction. But I think it should not eveu be allowed to go that far, for as it appears by the evidence *209on both sides that the angle of natural slope is one to one, and the depth of the earth above the solid rock, at plaintiff’s line (consisting of soil and 'shale), liable to fall away if deprived of the support of the adjoining soil, is about forty feet, the inference would be that, in course of time, danger would ensue to plaintiff's land if the defendants should work their quarry up to a point nearer than forty feet from plaintiff’s line. I would therefore recommend that they be restrained from digging and excavating the soil for the purpose of quarrying stone on their own premises, within a space of forty feet from the line of plaintiff’s land: If the Court, however, should be of opinion that they should not be restrained within any fixed limits, then I would recommend that the injunction heretofore granted be made perpetual, and that the defendants be farther restrained from digging, excavating, or removing any soil from any land adjoining the plaintiff’s premises, which, by reason of the withdrawal of its lateral support, shall cause the plaintiff’s land to subside and fall away.

“ The prayer of the bill for assessment of damages alleged to have been sustained by the plaimiif, is another matter which remains to be considered. On this point, it seems to me to be very questionable whether equity has jurisdiction to, give redress in this way, since the plaintiff for such damages clearly has an adequate remedy at law; but however this may be; I must report that no evidence was furnished by the parties to enable me to corue at any proper estimate of these damages. ... I therefore respectfully decline to assess these damages, without prejudice, however, to the right of the plaintiff- to recover whatever he may be entitled to on that score by an action at law, or otherwise, as may be deemed advisable.”

The defendants filed exceptions to the report. The Court overruled them, confirmed the report, and made the following decree:

It is further ordered and decreed .that the defendants, Thomas M. Bell and John Wier, and their agents and servants, be and are hereby perpetually enjoined and restrained from quarrying or excavating on or in their lands, within forty feet of the line of the plaintiff, William A. Eeed, and that the defendants pay the costs. This decree is made without prejudice to plaintiff’s right to sue for and recover damages for loss and injury sustained by him, by reason of the alleged wrongful acts of defendants heretofore done, and for which compensation is asked by the plaintiff', in the second paragraph of his prayer for relief.

The defendants appealed to the Supreme Court; they as*210signed for error the overruling their exceptions, confirming the report, and making the final decree.

*A. M. Brown,*for appellant.

The land here was city lots intended for building, and there is a distinction between such land and that in its natural state as respects the rule which recognizes the right of soil to support soil: Welde *v.*Minsterley, 2 Rolle’s Abr., 564, title “Trespass;” 1 Washburne on Easements, 431; Gale on Easements, 311. One ,may dig on his own laud for all useful purposes, even if he injures a dwelling-house on adjoining lands, if he acts carefully: Panton *v.*Holland, 17 Johns., 92; Thurston *v.*Hancock, 12 Mass., 220; Radcliff *v.*Brooklyn, 4 Comstock, 195. This case practically overrules Farrand *v.*Marshall, 19 Barbour, 380, cited by the Master; Clark *v.*Foot, 8 Johns., 421; Partridge *v.*Scott, 3 M. & W., 220; Acton *v.*Blundell, 12 Id., 324; Parker *v.*Foot, 19 Wendell, 309. One may take down his own house without staying the adjoining house: Peyton *v.*Mayor of London, 9 B. & C., 725; Chadwick *v.*Traider, 6 Benjamin, 1 Comyn’s Big., title “Action,” 6; Richart *v.*Scott, 7 Watts, 460.

*A. M. Watson*and *W. G. Hawkins,*for appellee.

The rule in Humphries *v.*Brogden, 1 Eng. L. & Eq., 243, cited by the Master, is not impaired, although the pressure be created by buildings, if the soil would have sunk had there been no buildings: Stroyan *v.*Knowles, 4 H. *&*N., 186; Hamer *v.*Knowles, 6 Id., 454. No one has a right of the unrestricted use of his own land; he is limited by that of the adjoiner: Hutchinson *v.*Schimmelfelder, 4 Wright, 396 ; Jones *v.*Wagner, 16 P. F. Smith, 429. Every owner is in the use of his land to respect his adjoiner: Farrand v. Marshall, 21 Barbour, 409. The temporary and special use must yield to the permanent use: Hay *v.*Cohoes Co., 2 Comstock, 150 ; Masson’s Appeal, 20 P. F. Smith, 26:

Judgment was entered in the Supreme Court, November 9th, 1874.

Per Curiam:

The rule that the report of a Master confirmed by the court, upon facts, will not be revoked except for clear error, applies to this case. The Master has found on all the evidence that the quarrying and stripping of the defendants brought down the plaintiff’s land, by removing its natural support, without reference to the wall built by the plaintiff' and his roadway. Even some of the iyitnesses of the defendants state facts as -to the sliding of the ground with the wall still standing, •which, with the age of the wall, *211the near approach of the stripping, and manifest effect of the removal of the stones and earth, as shown upon the measured cross section represented in the draft, contribute to strengthen the Master’s conclusions. But it is believed the distance of forty feet is too great a restraint in all instances, and may prevent a lawful use of the defendants’ quarry. The decree of the Court will therefore be so modified as to enjoin the defendants from quarrying, excavating, and stripping their land so near to the plaintiff’s laud as to take away its natural lateral support, and cause his land to slide or fall, provided that the defendants may make a nearer approach, upon protecting the plaintiff’s land from sliding or falling, by means of a substantial stone wall built by the defendants at their own expense, along the boundary line of the plaintiff’s land. With this modification the decree is affirmed at the costs of the appellants, and the appeal dismissed.