GA Code § 44-9-3 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 9 - Easements|Article 1 - In General|§ 44-9-3. Right of Lateral Support From Adjoining Land; Right to Make Excavations Up to Boundary Line; Notice to Adjoining Landowner; Standard of Care

  Owners of adjoining lands owe to each other the lateral support of the soil of each to that of the other in its natural state. If they derive title from a common grantor, the lateral support shall include the weight of walls and other burdens that may be on it. If, at the time of the sale by such common grantor, there are buildings adjoining each other, the right shall extend to the lateral support which each adjacent wall gives to the other.   On giving reasonable notice of his intention to the adjoining landowner, the owner of land has the right to make proper and needful excavations up to the boundary line for purposes of construction, provided that he uses ordinary care and takes reasonable precautions to sustain the land of the other.    (Civil Code 1895, §§ 3047, 3048; Civil Code 1910, §§ 3619, 3620; Code 1933, §§ 85-1202, 85-1203.)   Law reviews.   - For comment on Levison v. Goode, 164 Ga. 361, 138 S.E. 583 (1927), see 1 Ga. L. Rev. No. 2, p. 47 (1927).   JUDICIAL DECISIONS   Owner not prevented from agreeing to removal of lateral support.    - Under O.C.G.A. § 44-9-3, owners of adjoining land owe to each other the lateral support of the soil. But there is nothing in law which prevents an owner from agreeing to a removal of lateral support. And the successor in title of a landowner who grants a right of way to a railroad has no cause of action against a second railroad, a purchaser from the first, because the successor's land, unless supported would be washed into the cut constructed by the railroad to whom was granted the right of way. Seaboard Air-Line Ry. v. McMurrain, 132 Ga. 181, 63 S.E. 1098 (1909).   Each adjoining owner owns part of party wall, with corresponding easement of support.    - In the absence of any contractual or statutory provision to the contrary, the owners of adjoining premises are not tenants in common of a party wall erected partly on the land of each, but each owns in severalty the part thereof which rests upon that person's side of the line, with an easement of support from the other. Wilensky v. Robinson, 203 Ga. 423, 47 S.E.2d 270 (1948).    Extent of easement acquired by prescription to use wall of adjoining owner for supporting building is the enjoyment of the use of the wall for the support of the house as it existed during the period of prescription. Levinson v. Goode, 164 Ga. 361, 138 S.E. 583, for comment, see 1 Ga. L. Rev. No. 2, p. 47 (1927).   Where deprivation of lateral support alleged, cause of action laid.    - Where damage accruing out of the lowering of the grade of adjoining property so as to deprive a plaintiff of lateral support for a lot is alleged, a cause of action is laid. Seal v. Aldredge, 100 Ga. App. 458, 111 S.E.2d 769 (1959).   Liability attaches to act of going through and beyond property line.    - Where, in excavating, the owner of land goes through and beyond owner's line and undermines the soil of an adjoining landowner, liability attaches to the act, not on the ground of a lack of the proper care in doing the work, but on the ground that the act is a trespass. Bass v. West, 110 Ga. 698, 36 S.E. 244 (1900).   Adjoining landowner may maintain ejectment against encroacher.    - The right of the owner of land extends downward indefinitely; therefore, if one party, building upon own land, encroaches upon the adjoining land of neighbor, no question should arise as to the right of the latter to maintain ejectment against the former, and it is immaterial whether the encroachment is upon the surface of the soil or below it. Wachstein v. Christopher, 128 Ga. 229, 57 S.E. 511, 119 Am. St. R. 381, 11 L.R.A. (n.s.) 917 (1907).   Landowner may excavate up to boundary line, but must avoid unnecessary injury to adjoining property.    - Under the provisions of O.C.G.A. § 44-9-3, a landowner is not denied the right to the full use of this property, including the right to make excavations upon property up to the boundary line of the adjoining landowner, but in making such excavations, the landowner must avoid unnecessary injury to the property of the adjoining landowner. Paul v. Bailey, 109 Ga. App. 712, 137 S.E.2d 337 (1964).   Where excavation contemplated, reasonable notice should be given to adjoining landowner.    - Where an excavation is contemplated, the owner of the premises on which the excavating is to be done should, as manifesting that degree of care and precaution required of the owner, give reasonable notice to the adjoining landowner of the owner's intention to excavate, so that an opportunity may be afforded the adjacent owner to take steps necessary to protect buildings and other structures. Montgomery v. Trustees of Masonic Hall, 70 Ga. 38 (1883); Bass v. West, 110 Ga. 698, 36 S.E. 244 (1900).    Where a proprietor desires to make a necessary excavation up to the line of a lot for the purpose of constructing a building, and the adjacent proprietor has an existing building, the wall of which extends along the property line, so that the work of excavating will withdraw the lateral support of the wall and tend to render it unsafe, it is the duty of the party desiring to make the excavation to give the adjoining proprietor reasonable notice of intention to make the excavation, and also to exercise ordinary care and take reasonable precautions to sustain the land of the other, so as to avoid injury to the land, including the building thereon. Massell Realty Imp. Co. v. MacMillan Co., 168 Ga. 164, 147 S.E. 38 (1929).   Person causing injury to adjoining property liable for damages.    - It is the person who makes the excavation which later causes injury to the adjoining property, and not the person in possession at the time of the injury, who is liable for the damages caused. Paul v. Bailey, 109 Ga. App. 712, 137 S.E.2d 337 (1964).   Owner liable for injury resulting from negligent contractor's excavation.    - The owner of land on which an excavation is negligently and carelessly made by a contractor, who acts under the direction and control of the owner, is liable for any injury resulting therefrom to buildings and other structures on the adjoining property, although the contractor undertook to protect the adjoining buildings under a contract requiring such an undertaking. Bass v. West, 110 Ga. 698, 36 S.E. 244 (1900).   Injury not sustained until land suffers actual physical disturbance.    - An injury for which damages may be recoverable is not sustained by the adjoining landowner unless and until the excavation and resulting withdrawal of lateral support causes the owner's land to crack, slide, fall in, or otherwise suffer actual physical disturbance, for the actionable wrong is not the excavation, but the act of allowing injury to the other land through the failure to exercise ordinary care to sustain the land. Paul v. Bailey, 109 Ga. App. 712, 137 S.E.2d 337 (1964).   If irreparable injury probable result, equity affords relief by injunction.    - If irreparable injury to the property of the adjacent proprietor will probably result from the failure by the excavator to exercise ordinary care and reasonable precaution to sustain the land with the buildings thereon, equity will afford relief by an injunction. Massell Realty Imp. Co. v. MacMillan Co., 168 Ga. 164, 147 S.E. 38 (1929).   Summary judgment on duty of lateral support not authorized.    - Because the appellees held prescriptive title by adverse possession to that part of the alleyway located between the parties' properties and were not required to remove the terraces and construction debris from the alleyway, the appellants were not entitled to summary judgment on the appellants claim seeking a declaration that the appellants would have no duty of lateral support once the terraces and debris were removed. Kelley v. Randolph, 295 Ga. 721, 763 S.E.2d 858 (2014).   Applicability.    - Appellate court failed to discern how O.C.G.A. § 44-9-3(a) had anything to do with the maintenance of a dam to preserve a lake, and declined the landowners' invitation to extend the statutory interpretation. Bishop Eddie Long Ministries, Inc. v. Dillard, 272 Ga. App. 894, 613 S.E.2d 673 (2005).    Cited in Wilkins v. Grant, 118 Ga. 522, 45 S.E. 415 (1903); Kolodkin v. Griffin, 87 Ga. App. 725, 75 S.E.2d 197 (1953); Associated Lerner Shops of Am., Inc. v. Thibadeau, Shaw & Co., 396 F.2d 768 (5th Cir. 1968); Jillson v. Barton, 139 Ga. App. 767, 229 S.E.2d 476 (1975); Garner v. Blair, 214 Ga. App. 357, 448 S.E.2d 24 (1994).   RESEARCH REFERENCES   Am. Jur. 2d.   - 1 Am. Jur. 2d, Adjoining Landowners, §§ 26, 40 et seq.   19A Am. Jur. Pleading and Practice Forms, Party Walls, § 3.   C.J.S.   - 2 C.J.S., Adjoining Landowners, §§ 2-5, 7, 9-14, 15-38, 58, 59, 62-64, 66. 28A C.J.S., Easements, §§ 63, 66 et seq., 75 et seq., 81. 66 C.J.S., Nuisances, §§ 42 et seq., 62.   ALR.    - Right of co-owner of a party or division wall to remove or demolish his own building, 9 A.L.R. 1329.    Liability of adjoining landowner for using neighbor's wall to support fill, 10 A.L.R. 1321.    Implied easement upon severance of tract where building is near or encroaches upon the dividing line, 41 A.L.R. 1210; 53 A.L.R. 910.    Physical conditions which will charge purchaser of servient estate with notice of easement, 41 A.L.R. 1442; 74 A.L.R. 1250.    Liability of municipality for injury to lateral support in grading street, 44 A.L.R. 1494.    Liability of one excavating on his own premises for resulting injury to adjoining building, 50 A.L.R. 486; 59 A.L.R. 1252.    Validity of statute or ordinance relating to protection of adjoining property in making excavations, 55 A.L.R. 464.    Damages recoverable by owner or occupier of surface on account of subsidence due to mining operations, 56 A.L.R. 310.    Change in conditions as terminating party-wall agreement or easement, 85 A.L.R. 288.    Right of excavating landowner to recover from adjoining owner amount expended by former to prevent subsidence of soil or collapse of building upon latter's land, or to recover damages caused by such subsidence or collapse, 129 A.L.R. 623.    Duty and liability of owner in respect of lateral or surface support as affected by excavation, or other conditions, created by his predecessor in title, 139 A.L.R. 1267.    Adjoining owner's use of wall standing on or near dividing line as imposing obligation to contribute to cost, where he was not party to oral agreement or unrecorded written agreement under which it was erected, 140 A.L.R. 1424.   Use of party wall for nonstructural purposes, 2 A.L.R.2d 1135.   Right to increase height of party wall, 24 A.L.R.2d 1053.   Measure of damages for loss of or interference with lateral support, 36 A.L.R.2d 1253.   Revocability of parol license with respect to use of wall, 41 A.L.R.2d 558.   Party walls and party-wall agreements as affecting marketability of title, 81 A.L.R.2d 1020.   Liability of excavators for damages to noncoterminous tract from removal of lateral support, 87 A.L.R.2d 710.   Liability for damages to adjacent land or building caused by dredging, 62 A.L.R.3d 526.   Liability of landowner withdrawing ground water from own land for subsidence of adjoining owner's land, 5 A.L.R.4th 614.