Abrey v. City of Detroit

Grant, J.

(after stating the facts). 1. Error is assigned upon the ruling of the court in admitting testimony on the part of the plaintiff as to the cost of repairing the *377 building by putting a stone or brick foundation under it. Two witnesses had already testified to this without objection. On the following day one of the witnesses was recalled, and revised his figures, showing the cost to be much less than that testified to by him the day before. After detailing how he intended to do this work, he was asked to give a detail of his estimate. To this the objection was made, “I object to this class of testimony,—about the cost of putting up walls and brick piers.” No reason for the objection was assigned. This court has repeatedly held that such objections cannot be considered: Benedict v. Provision Co., 115 Mich. 527 ( 73 N. W. 802 ); Hutchinson v. Whitmore, 95 Mich. 592 ( 55 N. W. 438 ), and authorities there cited.

No motion was made to strike out the prior evidence on the same point. It is not at all clear that the testimony was not competent as an element of damage. If the original foundation, consisting of piles and the brick, was sufficient to maintain the structure, and such a foundation was rendered insecure by the dirt thrown against it, the cost of building a secure foundation would result solely from the fault of the defendant. The cost of restoration might, therefore, be a proper measure of damage. Hartshorn v. Chaddock, 135 N. Y. 116 ( 31 N. E. 997 , 17 L. R. A. 426 ). But the verdict of the jury, of $1,000, shows very clearly that this was not considered by them, under the charge of the court, as an element of damage.

2. The court refused to instruct the jury, as requested, that they could not allow the plaintiff what it would cost to place a brick or stone foundation under the building. As already stated, it is evident that the jury did not include this in their verdict. The jury were instructed that there were two elements of damage for them to consider, viz.: Injury to the building, and loss of rents. This instruction eliminated from the consideration of the jury the cost of building a wall as a measure of damages. We therefore think that the refusal to give this charge did not result in any prejudice to the defendant.

*378 3. Error is assigned upon the refusal of the court to instruct the jury:

“ 1. The building having been constructed with its water - table at the grade line of the approach, the city had the right to assume that the building was constructed so as to permit the filling complained of.

“2. It appears that this building was constructed with reference to this approach, and its water-table was located with' reference to the grade of that approach; and it is for the jury to say whether or not the plaintiff did not by such construction invite the filling in complained of, and if he did, and the work was done in a careful manner, the plaintiff is not entitled to recover.”

There was no evidence upon which to base this charge. Plaintiff not only did not invite the defendant to fill it in, but protested against it. The bank broke the brick wall in, and rendered the basement almost useless. This land was not a public highway, but was purchased by the city as a part of the grounds of the parks and boulevards. Plaintiff had no right to its use for a passageway from the roadbed into his building. Abrey v. Commissioners of Parks & Boulevards, 95 Mich. 181 ( 54 N. W. 714 ). In filling this space the defendant was bound to exercise the same care as though the land were owned by a private individual. Plaintiff was not under obligation to build a wall to protect against the dirt thrown in. When one places a bank on his own land above his neighbor’s, he is bound to erect a retaining wall or structure sufficient to keep the dirt from encroaching upon his neighbor’s land. The case comes within the maxim, “Sic utere tuo ut alienum non Icedas.”

4. We think all the other exceptions to the refusal to charge as requested are covered by the general instructions of the court. The court, in very clear language, submitted to the jury the theory of the defendant, as well as that of the plaintiff. He distinctly instructed them that “if the building was not erected in a sufficiently stable manner to resist the ordinary action of the wind storms, and if any injury was done by the wind or the *379 elements, or by anything over which the defendant had no control, it would not be liable for any such injury.”

The judgment is affirmed.

The other Justices concurred.