Before embarking on any excavation project--including tunneling and blasting--developers and landowners should understand the often-overlooked duty they owe to neighboring properties in order to avoid nuisance or negligence liability.
In Massachusetts, a landowner owes a duty of lateral-subjacent support to adjoining properties. See, e.g., New York Cent. R. Co. v. Marinucci Bros. & Co., 337 Mass. 469, 472 (1958) and Gorton v. Schofield, 311 Mass. 352 (1942). As a result, all property owners are entitled to expect that naturally occurring soil and water conditions, including the lateral support provided by surrounding properties, will remain in their natural state. This is an inherent property right.
But what happens when a parcel of land needs to be excavated for development? Are there consequences for or considerations to be made by the developer or landowner? The answer, of course, is yes. The reason for this is because
[i]t is well settled that for an excavation causing an injury to the soil of an adjoining owner in its natural state an action will lie, but that no recovery will be allowed in the absence of negligence or a direct trespass for an injury to structures by excavating the adjoining land.
New York Cent. R. Co., 337 Mass. at 472. There will be strict liability for landowners (or their contractors) who dig, blast or tunnel on their land if they eliminate or injure the lateral support benefitting adjoining property and cause damage to the land in its natural state.
When it comes to removal of bedrock for development, certain methods of excavation and blasting are more destructive than others, depending on the nature of the project site in relation to its surroundings. For example, shock waves, vibrations, and cracks and fissures in the bedrock-often extending beyond the property line-are just some of the potential consequences of blasting. This can create an unsafe and hazardous situation for adjoining properties, and potentially subject the developer and/or landowner to claims of nuisance and negligence from adjoining property owners.
So, while excavation and related development is certainly not prohibited, it does require some forethought, particularly because interference with lateral support or conduct deemed a trespass or negligent can translate into money damages owed to affected properties. Fortunately, there are some precautions that developers, contractors and adjoining landowners can take:
- Review and understand the proposed excavation plans before permits are issued, if possible, but certainly before excavation begins. This review will require the expertise and input of qualified geotechnical consultants and engineers. They will be looking to see whether the plans will harm surrounding properties.
- For projects requiring blasting, consider alternative methods of excavation and mitigation in light of the proximity of surrounding properties, buildings and uses. There are often less intrusive methods of excavation available to developers that could help avoid the potential for negligence.
- Acknowledge that some surrounding buildings, structures and uses-such as towers and antennas anchored with guy wires deep into the bedrock-may not have typical blasting criteria that will allow for a safe blasting plan. This is where developers need to be particularly sensitive to alternative methods of excavation.
- Developers and contractors must remember that it is no defense to a valid nuisance claim that their conduct was under the guise of a duly issued permit. Their conduct, notwithstanding the town's or city's approval, can still result in a lawsuit if it substantially and unreasonably interferes with another landowner's use and enjoyment of his land.
Overall, it is imperative that any excavation or blasting project avoid disrupting or destroying the lateral support provided to neighboring properties.
Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.