Opinion
No. 75-072
Decided March 25, 1976. Rehearing denied April 15, 1976. Certiorari granted June 6, 1976.
Action to recover for damages allegedly resulting from removal of lateral support from real property.
Reversed
1. REAL PROPERTY — Lateral Support — Absolute Liability — Negligence — Land in Natural State. Negligence, not absolute liability, is the crux of an action for damages to buildings caused by removal of support to land burdened by man-made structures, and this limitation on a theory of recovery is not affected by the fact that the land would have subsided even if it had remained in its natural state.
2. DAMAGES — Lateral Support — Personal Action. An action for damages for removal of lateral support is not a charge on the land which formerly provided such support, but is merely a personal action against the actor who removed the support.
3. NEGLIGENCE — Successor in Interest — No Legal Duty — Damages — Liability — Lateral Support. Where defendant city, a successor in interest to other defendant, did no act which contributed in any manner to slope failure but rather was found subject to liability solely for its failure to refurnish lateral support to the property in question which support had been removed by the city's predecessor in title, that finding would not stand; since there was no personal duty to supply lateral support and a later possessor has no responsibility under either the absolute liability doctrine or negligence principles to affirmatively provide lateral support to adjacent property, there was no duty imposed by law and no actionable negligence.
Appeal from the District Court of El Paso County, Honorable John F. Gallagher, Judge.
Edward D. Cleveland, for plaintiffs-appellees.
Bennett Wills, Matthew B. Wills, for defendants-appellants and appellees on cross-claims, R. D. Von Engeln Interstate Eighth Street Co.
Gordon D. Hinds, City Attorney, Horn, Anderson Johnson, Gregory L. Johnson, Louis Johnson, for defendant-appellant City of Colorado Springs.
Division III.
The subject of this action is the alleged removal of lateral support from real estate. Defendants, R. D. Von Engeln, Interstate Eighth Street Company (8th Street), and the City of Colorado Springs (the City), appeal from a judgment entered on jury verdicts in favor of plaintiffs James and Faye Gladin. We reverse.
The Gladin property is located immediately to the south of certain undeveloped property which in 1970 was owned by 8th Street, a partnership, of which Von Engeln was the general partner. The Gladin tract sloped gradually downward to its border with the 8th Street property and that grade continued to the channel of Bear Creek, which bisected the 8th Street property. In order to make its tract more usable, 8th Street caused the channel of Bear Creek to be relocated just to the north of the boundary between the two tracts, appreciably increasing the steepness of the downward slope leading from the Gladin property to that of 8th Street, and also increasing that slope on the parcels of property to the east and west of the Gladin property.
At approximately the same time that 8th Street was relocating the creek channel, the Gladins were in the process of constructing two buildings and other structures on their property. This construction was completed in 1971.
In the meantime, the City had been seeking a right-of-way for power lines across the 8th Street property. When approached by the City for this purpose in late March or early April of 1971, 8th Street instead offered to convey in fee a tract of land to the City encompassing the relocated creek channel, purportedly to shift to the City responsibility for the maintenance of the channel in the event that power lines were constructed along it.
Just prior to the completion of the channel relocation project in April 1971, a portion of the newly-cut sloping bank on the property located to the east of the Gladin property collapsed. 8th Street informed City officials of the slope failure and later made repairs. After the slope failure, but prior to its repair, the City accepted a deed to the relocated channel and subsequently constructed the proposed powerline along its course. The remainder of the 8th Street tract was then conveyed to Interstate 25 Investment Company, of which Von Engeln was also a general partner.
In early 1973, the bank of the property to the east of the Gladin property again slipped, with substantial amounts of earth sliding into the relocated channel of Bear Creek. Then in July, an even larger slippage occurred on the Gladin property itself, causing considerable damage to the buildings and other improvements. After discussions with officials of 8th Street and the City, in which both denied liability, the Gladins instituted suit.
The complaint set forth claims for damages and injunctive relief against Von Engeln, 8th Street, the City, and three other defendants. Von Engeln and 8th Street then cross-claimed for indemnity against the City. The jury found that Von Engeln and 8th Street did not negligently remove lateral support from the Gladin land by reason of the relocation of the channel of Bear Creek; however, the jury found them to be liable under the doctrine of absolute liability. The jury also found the City to be liable to the Gladins on a negligence claim, and further found for Von Engeln and 8th Street on their indemnification claim asserted against the City. The verdicts regarding the other three defendants are not relevant to this appeal.
I.
Von Engeln and 8th Street contend that the trial court erred in instructing the jury on absolute liability for removal of lateral support because the Gladin property was no longer in its natural state. They contend that the doctrine of absolute liability is only applicable to actions for damages to land in its natural state, and that where, as here, buildings or other man-made structures have been added, recovery may only be had based on negligence. They argue that since the jury found in their favor on the negligence claim, and because the trial court committed error in instructing the jury on absolute liability, the judgment against them must be reversed. We agree.
[1] As we can see no rational difference in this respect between the law applicable to subjacent and lateral support of real estate, we find Colorado Fuel Iron Corp. v. Salardino, 125 Colo. 516, 245 P.2d 461, controlling on this issue. In that case, our Supreme Court stated that negligence, not absolute liability, is the crux of an action for damages to buildings caused by removal of support to land burdened by such man-made structures. There are a number of different rationales strongly supporting this rule. See Ceffarelli v. Landino, 82 Conn. 126, 72 A. 564; Gildersleeve v. Hammond, 109 Mich. 431, 67 N.W. 519; Home Brewing Co. v. Thomas Colliery Co., 274 Pa. 56, 117 A. 542.
The Gladins would have us create an exception to the Salardino rule to the effect that absolute liability could be imposed if the land would have subsided even if it had remained in its natural state. Salardino does not leave room for the imposition of such an exception, however, since the Court there, in distinguishing certain early Colorado cases, foreclosed the possibility that Colorado might extend the rule imposing absolute liability to cases involving damages to improved property.
It is our conclusion, therefore, that the rule set forth in Colorado Fuel Iron v. Salardino is properly applicable to this case, and thus, the trial court erred in instructing the jury on the doctrine of absolute liability since the Gladins' action was premised on damage to improved property. It was therefore incumbent on them to show negligence on the part of Von Engeln and 8th Street. Since the jury found for these defendants on the negligence issue, the judgment in favor of the Gladins is reversed and the trial court is directed to enter judgment in favor of Von Engeln and 8th Street on all of the Gladins' claims against them.
This disposition of the absolute liability claim makes moot the City's challenge to the trial court's treatment of the indemnification action. See Heller-Mark Co. v. Kassler Co., 37 Colo. App. 267, 544 P.2d 995.
II.
As to the City's appeal of the negligence verdict, the City's principal contention is that the trial court erred in failing to direct a verdict in its favor on the negligence claim, basing its argument on the absence of a legal duty to provide lateral support to the adjoining Gladin tract. We agree that no such legal duty was present.
There must be a duty imposed by law and breached by the defendant with resultant damages before an action in negligence can be maintained; where no duty is imposed by law there can be no actionable negligence. Roessler v. O'Brien, 119 Colo. 222, 201 P.2d 901. Under the circumstances of this case, the City breached no duty owed the Gladins.
The record reveals that the City took no part in the relocation of Bear Creek which was solely for the benefit of 8th Street. Nor did any other act of the City contribute in any manner to the slope failure. Rather, liability was imposed on the City solely for its failure to refurnish lateral support to the Gladin property, which support had been removed by the City's predecessor in title. This was error.
[2] We are dealing with a specific tort which requires misfeasance, rather than merely nonfeasance. A landowner's only duty is not to withdraw lateral support from adjoining property, or to do any act which would cause subsidence of adjacent tracts. Carrig v. Andrews, 127 Conn. 403, 17 A.2d 520; Beal v. Reading Co., 370 Pa. 45, 87 A.2d 214; Restatement of Torts § 817(1). Thus, only the persons who removed or caused to be removed lateral support from the adjoining property are liable, not the person or persons in possession at the time of injury. Frederick v. Burg, 148 F. Supp. 673 (W.D. Pa.); Green v. Berge, 105 Cal. 52, 38 P. 539; Paul v. Bailey, 109 Ga. App. 712, 137 S.E.2d 337. An action for damages for removal of lateral support is not a charge on the land which formerly provided such support, but is merely a personal action against the actor who removed the support. See Lyons v. Walsh, 92 Conn. 18, 101 A. 488; Restatement of Torts § 817, comment j at 194. This is so because there is no personal duty to supply lateral support, and the later possessor has no responsibility, under either the absolute liability doctrine or negligence principles, to affirmatively provide lateral support to adjacent property. Frederick v. Burg, supra; Carrig v. Andrews, supra; Paul v. Bailey, supra; Beal v. Reading Co., supra.
[3] This case must be distinguished from those where a later landowner negligently allows substituted artificial lateral support to deteriorate through lack of maintenance or repair; a situation in which some courts have imposed liability. See Spoo v. Garvin, 236 Ky. 113, 32 S.W.2d 715; Gorton v. Schofield, 311 Mass. 352, 41 N.E.2d 12. Nor are we involved with an occupier of land who allows his property to remain in a dangerous condition which would foreseeably injure persons or adjoining property, such as in Moore v. Standard Paint Glass Co., 145 Colo. 151, 358 P.2d 33, which is cited by plaintiffs as controlling on this issue. This situation differs in that here, it is not the condition of the land owned by the City which is challenged; rather, plaintiffs seek recovery based on alleged negligence in the failure to reconstruct support for the benefit of adjoining property. These situations are not analogous. See Restatement (Second) of Torts Scope Note §§ 317-387 at 256. Thus, liability cannot be imposed solely on the basis of the City's failure to resupply lateral support removed by its predecessor in title, and the trial court therefore erred in refusing to direct a verdict in favor of the City on the negligence claim.
Judgment reversed.
JUDGE SMITH and JUDGE BERMAN concur.