Thurston v. Hancock

Supreme Judicial Court of Massachusetts · Property

Propertylateral supportadjacent landownersexcavationnatural condition of landnew buildingancient lights analogypresumed grant

Facts

The plaintiff bought land on Beacon Hill in 1802 and built a brick house in 1804, placing its western foundation within two feet of the boundary line. In 1811, the defendants bought the adjoining land to the west from the town of Boston and began leveling the hill by excavating gravel, staying five or six feet from the division line. The excavation caused the earth to fall away so that the plaintiff's foundation wall was left bare, making the house unsafe and requiring the plaintiff to remove and take down the house. The plaintiff had warned the defendants beforehand that their digging would probably cause this harm.

Issue

Whether an owner of adjoining land is liable when excavation on his own land causes the neighboring owner's recently built house to become unsafe and fall or require removal. More specifically, the question was whether the plaintiff could recover for injury to the house, or only for injury to the soil itself.

Rule

An adjoining landowner may use and excavate his own land as he chooses, so long as he does not impair another's preexisting legal right. A landowner has a right to the lateral support of his land in its natural condition, and a neighbor who excavates so near the line that the land itself falls away is liable for that direct consequential injury to the soil. But where the plaintiff has recently built near the boundary and has acquired no easement or analogous right by grant or long enjoyment, the excavating neighbor is not liable for damage to the house or other added weight caused by the plaintiff's own building near the line.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Providence, Nora Levin built a small masonry garage three feet from the boundary of her lot in 2018. In 2024, Omar Sayeed excavated on his adjoining parcel, staying entirely on his own land but so near the line that part of Nora's yard slid into the excavation and the garage wall cracked and became unsafe.

Under the majority rule, what is Nora's best claim?

Explanation. The majority distinguishes between the natural right to lateral support for land in its natural condition and the absence of any comparable right for a recently erected building near the line. An adjoining owner who excavates on his own land is liable if the neighboring soil itself falls away, but not for adventitious damage caused by the neighbor's own recent structure placed in a dangerous position. Notice does not create the missing right.