Thursday, December 5, 2019
“Slip Slidin’ Away” – The Right of Lateral and Subjacent Support
I have published articles on this blog on prior occasions concerning easements. In those posts, I have noted that an easement can either be affirmative (entitling the holder to do certain things upon the land subject to the easement) or negative (entitling the holder to require the owner of the land subject to the easement to either do or not do certain things with respect to the burdened land). Negative easements are synonymous with covenantal land restrictions and are similar to certain “natural rights” that are incidents of land ownership.
One of those natural rights that is an incident of land ownership (or may come along with an easement) is the right of lateral and subjacent support. It’s such an important right, that some states have statutes concerning it. See, e.g., Ohio Rev. Code Ann. §§723.49-50; Idaho Code §55-310. For example, California law states that, “each coterminous owner [owners having the same or coincident boundaries] is entitled to the lateral and subjacent support which his land receives from the adjoining land…” Cal. Civ. Code §832.
The right of lateral and subjacent support is not a right that many persons are familiar with, but it is an important right to all landowners.
Lateral and subjacent support rights – it’s the topic of today’s post.
The Basics of Lateral and Subjacent Support
Lateral support. An owner of a tract of land has the right to have the surface of the tract be supported by the land lying beneath it. “Lateral support” exists when the adjoining lands are side-by-side. It is the right of the land to be naturally upheld by its neighboring land(s) and supported against subsidence, i.e. slippage, cave-in or landslide. Lateral support is a common law right – it’s a right incident to the land itself. In addition, as noted above, some states have statutory provisions governing lateral support rights.
The right of lateral support raises questions when a landowner engages in construction and/or excavation activities. In practice, a landowner’s right of lateral support of adjoining property is subject to the right of the adjoining owner to excavate and improve his property. But, the neighbor’s excavation/improvement activity must be conducted in a reasonable manner. This is conceptually similar to nuisance law – a landowner can do whatever they want on their property so long as they don’t unreasonably interfere with a neighbor’s right to do what they want on their property (that’s an oversimplification, buy you get the point). If lateral support rights are alleged to have been violated, it’s a negligence-type tort.
So how are these mutual rights balanced? First, it’s a good idea (and required by statute in some states) to notify potentially affected neighbors (those beyond simply the owners of coterminous lands) of the excavation project in a manner that gives them sufficient time to protect their existing structures if those structures could be impacted. State law might require the excavating party to protect neighboring land and buildings from damage.
Subjacent support. A subjacent support right is the right of surface land to be supported by the land beneath it against subsidence. Subsidence is the sinking or lowering of the earth's strata caused by the removal of a substance (e.g., soil, coal, water, or some other mineral or natural resource). Subsidence usually appears as a sinkhole, trough, or fissure. In essence, a surface landowner has a common law right to have the surface remain in its natural state without subsidence caused by an adjacent owner as well as subsidence that the subsurface owner might create. See, e.g., XI Properties, Inc. v. RaceTrac Petroleum, Inc., 151 S.W.3d 443 (Tenn. 2004). Over the past two centuries, federal and state courts have developed legal principles to deal with subsidence and a surface owner's right of subjacent support, particularly as surface and subsurface estates have been severed (such as with oil and gas development). The basic principle is that a property owner is owed lateral and subjacent support, from an adjoining landowner; has a right to be free from unreasonable nuisances; and other similar rights that the law may require. See, e.g., Cecola v. Ruley, 12 S.W.3d 848 (Tex. Ct. App. 2000).
The right of lateral and subjacent support is subject to an adjacent owner’s reasonable use of their property. For example, in Finley v. Teeter Stone, Inc, 251 Md. 428 (Md. 1968), the conducting of quarrying operations was held to be a legitimate and reasonable use of land, and there was no suggestion that quarrying was unreasonable or inappropriate under the circumstances. Consequently, the adjacent landowners were not entitled to recover damages to their farmland from sinkholes on their land created by the quarrying activity because the landowners failed to claim or prove that there was any negligence in excavating or that the quarry operation was an unreasonable use.
As for severed estates, while both a surface owner and a subsurface owner (they could be the same or different parties depending on whether the surface estate has been severed from the subsurface estate) have the right (in accordance with either state common or statutory law) to access and divert/remove water (or minerals) beneath the surface of the property that is connected with legitimate use of the land, that right cannot be exercised in an unreasonable manner that causes injury to the similar right of an adjacent owner. The rule is that in situations where the ownership of the surface of the land has been severed from the ownership of the minerals under it, the owner of the surface has an absolute right to the necessary support of the land. However, it is possible for that right to be altered by contract or conveyance (if the deed language waiving the right is clear and unequivocal). See, e.g., Jensen v. Sheker, 231 Iowa 240 (1941); Breeding v. Koch Carbon, Inc., 726 F. Supp. 645 (W.D. Va. 1989).
Damages – Rights and Remedies
For claims asserting damages from lateral and subjacent support, the cause of action arises upon the subsidence of the land, not its excavation. In other words, a lawsuit may be brought only once the subsidence occurs, and for each separate occurrence. The suit can be filed by the owner of the damaged property and any disaffected tenant against the party (or parties) responsible for the damage. It also may be possible to head-off potential subsidence filing an action that seeks an injunction if it can be shown that the suspect activity would likely create irreparable damage.
If a landowner is negatively impacted by subsidence of the surface of their property, the landowner is entitled to proven damages from the party that caused the subsidence. See, e.g., Platts v. Sacramento Northern Railway, 205 Cal. App. 3d 1025 (Cal. Ct. App. 1988). It doesn’t matter whether the subsidence was the result of negligent conduct (e.g., failing to conduct mining or excavation activities, for example, in a lawfully reasonable and proper manner). Once damages are established, the responsible party is liable – at least according to the California Court of Appeals. Id.
While the right of lateral and subjacent support is not dependent upon the activities that a landowner conducts on the surface of their property, the owner of the surface has a responsibility to refrain from conduct that would contribute to subsidence. Id. For example, the owner of the surface has a duty to support buildings and other structures which were in existence at the time of the creation of the interest in the subjacent stratum. A person who withdraws the necessary lateral and subjacent support of land in another’s possession or the support that substitutes the naturally necessary support will be liable for a subsidence of the land to the other that was dependent upon the support withdrawn. See, e.g., Western Indiana Coal Company v. Brown, 36 Ind. App. 44 (Ind. Ct. App. 1905). For example, in the early 1900s case of Collins v. Gleason Coal Co., 140 Iowa 114 (Iowa 1908), the plaintiff was the owner of the surface of the land and the defendant was the owner of the coal beneath the same land. The plaintiff farmed the surface, and also had a house, outbuildings and trees on the property. The defendant’s coal mining operations damaged the plaintiff’s property. The court held that each party was entitled to use their respective property interests (the plaintiff’s surface estate and the defendant’s subsurface estate) in a manner that did not interfere or deprive the rights, benefits, profits and enjoyment of the other party’s property interest. The surface owner was entitled, the court determined, to have an enforceable support right that was the basis for recovering damages.
The right of lateral and subjacent support, while not well known by landowners, is a well-recognized property right. It’s just another one of those issues that can arise from time-to-time for a farmer, rancher, rural landowner, and any other owner of real estate. “You know the nearer the destination, the more you’re slip slidin’ away.”