{ "id": 6140900, "name": "David KECK and Joan Keck v. Julian LONGORIA and Catherine W. Longoria", "name_abbreviation": "Keck v. Longoria", "decision_date": "1989-06-28", "docket_number": "CA 88-229", "first_page": "277", "last_page": "282", "citations": [ { "type": "official", "cite": "28 Ark. App. 277" }, { "type": "parallel", "cite": "771 S.W.2d 808" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "148 F. Supp. 673", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4278136 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/f-supp/148/0673-01" ] }, { "cite": "137 S.E.2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "109 Ga. App. 712", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1607702 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/ga-app/109/0712-01" ] }, { "cite": "32 S.W.2d 715", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1930, "opinion_index": 0 }, { "cite": "347 N.E.2d 198", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "parenthetical": "only persons who remove another's lateral support can be held liable" } ], "opinion_index": 0 }, { "cite": "38 Ill. App. 3d 345", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2808657 ], "year": 1976, "pin_cites": [ { "parenthetical": "only persons who remove another's lateral support can be held liable" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/38/0345-01" ] }, { "cite": "195 Neb. 325", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 5305649 ], "weight": 2, "year": 1976, "pin_cites": [ { "parenthetical": "obligation to prevent injury to adjacent lands from removal of lateral support rests only upon the owner causing the excavation, not a subsequent owner" }, { "parenthetical": "obligation to prevent injury to adjacent lands from removal of lateral support rests only upon the owner causing the excavation, not a subsequent owner" } ], "opinion_index": 0, "case_paths": [ "/neb/195/0325-01" ] }, { "cite": "95 A.2d 322", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1953, "opinion_index": 0 }, { "cite": "201 Md. 575", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2233823 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/md/201/0575-01" ] }, { "cite": "396 S.W.2d 98", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 8506553 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/tenn-app/55/0081-01" ] }, { "cite": "101 A. 488", "category": "reporters:state_regional", "reporter": "A.", "year": 1917, "opinion_index": 0 }, { "cite": "92 Conn. 18", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 1633775 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/conn/92/0018-01" ] }, { "cite": "289 N.W. 553", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1940, "opinion_index": 0 }, { "cite": "206 Minn. 572", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 239169 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/minn/206/0572-01" ] }, { "cite": "41 N.E.2d 12", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "311 Mass. 352", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 889339 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/mass/311/0352-01" ] }, { "cite": "575 P.2d 418", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 4552269 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/colo/195/0088-01" ] }, { "cite": "267 Ark. 739", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719791 ], "weight": 6, "year": 1979, "pin_cites": [ { "page": "741" }, { "page": "741-42" } ], "opinion_index": 0, "case_paths": [ "/ark/267/0739-01" ] } ], "analysis": { "cardinality": 598, "char_count": 10437, "ocr_confidence": 0.884, "pagerank": { "raw": 7.031324996443159e-08, "percentile": 0.42427724550736357 }, "sha256": "d8b2db221023471ce50e35a1854a70eecf9c1f0039b3f322d0372f534d90e1b8", "simhash": "1:8960bedf23ec3e84", "word_count": 1746 }, "last_updated": "2023-07-14T20:10:20.618919+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cracraft and Jennings, JJ., agree." ], "parties": [ "David KECK and Joan Keck v. Julian LONGORIA and Catherine W. Longoria" ], "opinions": [ { "text": "Melvin Mayfield, Judge.\nJoan and David Keck appeal a decision of the Garland County Chancery Court granting judgment to the appellees on the pleadings.\nThe pleadings disclose that the appellants are the owners of a home in Hot Springs, Arkansas, and the appellees, Julian and Catherine W. Longoria, are the owners of a piece of property, adjacent to appellants\u2019 property, on which the Vapors Theatre and Restaurant is located. In 1960 the owners of the Vapors, predecessors in title to appellees, excavated a portion of their property near the parties\u2019 common boundary line in order to enlarge their parking area and building. No retaining wall was constructed and no immediate damage resulted to appellants\u2019 land.\nOn October 20, 1986, appellants filed suit against appellees contending that the \u201cexcavation has, over the past several years, and specifically during the past year, caused a crumbling and deterioration of the existing wall of rock and dirt which has resulted in a loss of foundation and stability\u201d to appellants\u2019 home and, as a result of the excavation and subsequent deterioration, appellants\u2019 home now has no subjacent lateral support and is precariously perched on top of a 6 5-foot cliff. The appellants originally sought money damages but subsequently amended their complaint and asked that the chancery court of Garland County \u201cfashion an appropriate remedy based on the facts and circumstances of this particular case.\u201d\nThe appellees filed answers to the pleadings filed by appellants and subsequently filed a motion for judgment on the pleadings. In response to that motion and pursuant to Ark. R. Civ. P. 12(c), appellant Joan Keck submitted an affidavit in which she stated that after the excavation in approximately 1960, the appellants had no problem for several years. \u201cHowever, during the past two (2) years erosion has become so bad that the house now sits on the edge of a drop of approximately seventy-five (75) feet and the house has had to be shored up by B & F Engineering Company.\u201d The affidavit contains some specific details and these conclusions: \u201cI am afraid the house is going to fall and I fear for the safety of my family and myself. It is apparent that the adjacent property offers no support to my property and that is why I have brought this action.\u201d\nIn granting judgment on the pleadings, the chancellor issued a letter opinion stating that he had reviewed the law in Arkansas and other states and concluded as follows:\nMy decision is based upon a review of both Arkansas law and the authorities of other states. The general rule appears to be well established in all jurisdictions that a property owner is entitled to the continued subjacent lateral support of his neighbor\u2019s property, and the neighbor who excavates his property so as to remove the subjacent lateral support becomes liable for the resulting damages. Some Courts have also imposed liability on a subsequent land owner who negligently allows substituted artificial lateral support (retaining wall) to deteriorate through lack of maintenance or repair. Arkansas is included among such Courts. Urosevic v. Hayes, 267 Ark. 739, 590 S.W.2d 77 (1979). The Court found one jurisdiction, Colorado, which has imposed liability on a subsequent land owner whose predecessor caused excavation to be performed, constructed no retaining wall and the adjacent property owner was damaged. Gladin v. Von Engeln, 575 P.2d 418 (1978). Standing alone, this case clearly represents a minority view.\nIn Urosevic v. Hayes, 267 Ark. 739, 590 S.W.2d 77 (Ark. App. 1979), cited by the chancellor in his letter opinion, this court said:\nThe Arkansas Supreme Court apparently has not had occasion to pass upon this type issue; however, it is a well settled common law doctrine that the owner of land has the right to the lateral support of his soil in the natural state, and the law provides recourse for violation of this right,\n267 Ark. at 741. After citing authority to support the above statement, we then stated:\nThe rule does not preclude a landowner from excavating upon his land, but he owes a continuing duty to protect an adjoining landowner\u2019s property when the excavation removes lateral support. It is his duty to provide an artificial support if the conditions so require. 2 C.J.S. Adjoining Landowners, \u00a7 15. This duty extends to successive owners of the land that has been excavated. Gorton v. Schofield, 311 Mass. 352, 41 N.E.2d 12 (1942); Braun v. Hamack, 206 Minn. 572, 289 N.W. 553 (1940); Lyons v. Walsh, 92 Conn. 18, 101 A. 488 (1917). The duty is absolute and is not predicated upon negligence. Williams v. Southern Railway Co., 396 S.W.2d 98 (Tenn. App. 1965); and Levi v. Schwartz, 201 Md. 575, 95 A.2d 322 (1953).\n267 Ark. at 741-42.\nAlthough the appellants rely upon the language in the above quoted paragraph, the cases cited there support the decision reached in Urosevic and that decision, as noted by the trial judge, is the general rule. In Urosevic, the appellant\u2019s predecessors in title had excavated their property and built a brick wall along the boundary line of the adjacent property, then owned by the appellees\u2019 predecessors in title. After the appellant and appellees purchased their respective properties, the brick wall was struck by lightning and a portion of the wall collapsed causing the erosion of some of the appellees\u2019 lands. The trial court held that while the lightning was not the fault of either party, the subsidence of the appellees\u2019 lands would not have occurred but for the excavation that had previously been made upon appellant\u2019s land. However, the court held that additional pressure on the retaining wall was created by some fill having been placed to the wall on the appellees\u2019 lands. So, the chancellor balanced the equities and required the appellant to bear half the cost of restoring the wall and the appellees to bear half the cost. This court affirmed the chancellor saying that equity had the power and duty to devise a remedy appropriate to the circumstances of the case.\nThe controlling factor that distinguishes Urosevic from the present case is that the appellant\u2019s predecessors in title in Urosevic had built a retaining wall which the chancellor found the appellant had some duty to maintain. Here, no type of retaining wall had been erected by appellees\u2019 predecessors in title. In that situation, it seems to be the general rule that the subsequent owner of the land is not liable for damages caused by the excavation made by his predecessor in title. The Urosevic case is discussed in 4 UALR L.J. 103 (1981), where the general rule is stated as follows:\nA present owner of land is not liable for damages caused by an excavation made by his predecessor in title where the excavator did not provide artificial support to replace the natural support he removed.\nNote, Property \u2014 Lateral Support \u2014 Effect of An Act of God on Absolute Liability, 4UALRL.J. 108 (1981). (In footnote (3) it is stated: \u201cLateral support refers to the support land receives from adjacent land. It is to be distinguished from subjacent support, the support the surface of the land receives from underlying strata. The right to subjacent support arises when one party owns the surface of the land and another owns the strata beneath it.\u201d Thus, the case at bar really involves \u201clateral\u201d rather than \u201csubjacent\u201d support.)\nThe Restatement (Second) of Torts \u00a7 817 (1977) states:\n(1) One who withdraws the naturally necessary lateral support of land in another\u2019s possession or support that has been substituted for the naturally necessary support, is subject to liability for a subsidence of the land of the other that was naturally dependent upon the support withdrawn.\nBut Comment j to Restatement (Second) of Torts \u00a7 817(1) (1977) makes it clear that the person liable \u201c[I]s the actor who withdraws the naturally necessary support. . . . The owner or possessor of this land is not liable under the rule stated. . . unless he was an actor in the withdrawal of support.\u201d The same rule is stated in 5 Powell, The Law ofReal Property \u00a7 699 at 289(1987), as follows:\nThe cause of action exists against the person who made the withdrawal of support causing subsidence. Thus, the action cannot be brought against the possessor of the supporting land at the time of the subsidence for a withdrawal of support made by a predecessor of such possessor or by someone formerly in possession of the supporting land.... The complaint is insufficient unless it alleges that the defendant made the withdrawal of support.\nThe appellees in the present case cite several cases in support of this general rule. See McKamy v. Bonanza Sirloin Pit, Inc., 195 Neb. 325, 237 N.W.2d 865 (1976) (obligation to prevent injury to adjacent lands from removal of lateral support rests only upon the owner causing the excavation, not a subsequent owner); First National Bank and Trust Co. v. Universal Mortgage & Realty Trust, 38 Ill. App. 3d 345, 347 N.E.2d 198 (1976) (only persons who remove another\u2019s lateral support can be held liable); see also Spoo v. Garvin, 32 S.W.2d 715 (Ky. Ct. App. 1930); Paul v. Bailey, 109 Ga. App. 712, 137 S.E.2d 337 (1964); Frederick v. Burg, 148 F. Supp. 673 (W.D. Penn. 1957).\nThus, we think it is clear that the general rule does not hold the owner or possessor of property liable for the withdrawal of lateral support unless he is the one who withdraws the support. Our Urosevic case does not hold contrary to this general rule. The liability imposed upon the appellant in that case resulted from the existence of the retaining wall built by appellant\u2019s predecessors in title and the duty imposed by equity to keep that wall repaired. In the present case, there is no wall or artificial support for the appellees to maintain or keep in repair.\nAppellants also cite Gladin v. Von Engeln, 575 P.2d 418 (Colo. 1978), in support of their cause of action, but in that case the liability of the subsequent purchaser of the property was based upon the negligence of the purchaser. Here, the appellants\u2019 complaint does not allege that the appellees have been negligent in regard to the lateral support of the appellees\u2019 property.\nAffirmed.\nCracraft and Jennings, JJ., agree.", "type": "majority", "author": "Melvin Mayfield, Judge." } ], "attorneys": [ "David Goldman, for appellant.", "Richard L. Slagle, for appellee." ], "corrections": "", "head_matter": "David KECK and Joan Keck v. Julian LONGORIA and Catherine W. Longoria\nCA 88-229\n771 S.W.2d 808\nCourt of Appeals of Arkansas Division I\nOpinion delivered June 28, 1989\nDavid Goldman, for appellant.\nRichard L. Slagle, for appellee." }, "file_name": "0277-01", "first_page_order": 303, "last_page_order": 308 }