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Scott v. West

Court of Appeals of Texas, Second District, Fort Worth

July 3, 2019

David D. Scott and Mary J. Scott, Appellants
Robert G. West, Thyra West, Judith C. Clark, Sallie Clingman, Gregory P. Miller, Gaye Miller, Jonathan Bayles, and Amy Bayles, Appellees

          On Appeal from County Court at Law No. 2 Tarrant County, Texas Trial Court No. 2014-001905-2

          Before Sudderth, C.J.; Gabriel and Pittman, JJ.



         Appellants David D. Scott and Mary J. Scott sued four pairs of defendants- Robert G. West and Thyra West; Judith C. Clark and Sallie Clingman; Gregory P. Miller and Gaye Miller; and Jonathan Bayles and Amy Bayles (collectively, the Adjoining Neighbors)-all of whom are their adjoining neighbors.[1] The Scotts sought damages and injunctive relief related to a failing retaining wall (the Retaining Wall), presumably installed decades ago by the original developer of the parties' properties, that separates the Scotts' residential property from the Adjoining Neighbors' elevated residential properties.[2] After the trial court granted partial summary judgment for the Adjoining Neighbors and denied the Scott's motion for partial summary judgment on the question of duty, we granted this permissive appeal pursuant to Section 51.104 of the Texas Civil Practice and Remedies Code to determine the following narrow question of law: whether the Scotts or the Adjoining Neighbors have the legal duty to repair or replace the Retaining Wall.[3] This is a case of first impression in Texas but is of significant importance as a thread in the fabric of Texas property law. We specifically address only the narrow question of whether any party has an absolute duty to repair or replace the Retaining Wall.[4] As discussed herein, from our review of the record and the applicable case law, we conclude that no party has such an absolute duty under the law.


         After the Adjoining Neighbors declined to pay for part of the Retaining Wall's replacement, the Scotts filed this suit. In their live petition, the Scotts alleged that the Retaining Wall is failing, that it is both falling on and being pushed onto their property, and that it needs to be replaced. They asserted that the Adjoining Neighbors' acts and omissions contributed to the Retaining Wall's failing, including their allowing water to collect behind the Retaining Wall, constructing driveways or other "hardened structures near or adjacent to the top of the Retaining Wall that put pressure on the Retaining Wall," and "[a]dding at the top of the Retaining Wall steel posts imbedded into the Retaining Wall, including wrought iron fencing, chain link fence posts[, ] and steel posts supporting wood fencing."

         The Scotts sought damages from the Adjoining Neighbors and brought causes of action for negligence, trespass, and common law liability for the repair or replacement of the Retaining Wall. The Scotts further alleged that the Adjoining Neighbors' "acts and omissions including, but not limited to, the failure to repair their respective portions of the Retaining Wall, have also created a private nuisance," for which they sought damages and injunctive relief ordering the Adjoining Neighbors to remove and replace the Retaining Wall at their sole expense. The Scotts asserted that the Adjoining Neighbors "each have a continuing duty to maintain, repair, or replace the Retaining Wall as is necessary [1] to provide lateral support to each [Appellee's] property and [2] to prevent the Retaining Wall and the soils and structures supported by the Retaining Wall from encroaching into and onto the [Scotts'] Property."

         All parties filed summary judgment motions seeking judgment on, among other issues, the question of whether the Adjoining Neighbors have a strict legal duty to repair or replace the Retaining Wall. On June 8, 2018, the trial court signed an "Order on Motions for Summary Judgment and Certification of Question for Interlocutory Appeal under TRCP 168." See Tex. R. Civ. P. 168. That order granted the Adjoining Neighbors' traditional motions for summary judgment solely on the basis that the Adjoining Neighbors had no "established legal duty to repair or replace the [R]etaining [W]all," and the order denied the Scotts' motion for partial summary judgment for the same reason.[5] The trial court found that "the question of whether Plaintiffs or Defendants have the legal duty to repair or replace the subject [R]etaining [W]all is the controlling question of law as to which there is substantial ground for difference of opinion, and on which there is no guiding Texas statutory or appellate case law."[6]

         The trial court gave permission for this interlocutory appeal and abated the rest of the case pending this court's review. This court agreed to a permissive appeal to address whether the law imposes an absolute legal duty for any of the parties to repair or replace the Retaining Wall.[7] For the reasons set forth herein, we conclude that it does not.


         In addressing the controlling question of law, we consider applicable duties under both tort law and property law's doctrine of lateral support.

         I. Tort Law Does Not Impose an Absolute Duty to Repair the Retaining Wall.

         As expressed in the age-old principle of sic utere tuo ut alienum non laedas, all property owners have a general duty to not use their own property in a manner that injures the rights of others. Orient Ins. Co. v. Daggs, 172 U.S. 557, 566, 19 S.Ct. 281, 284 (1899) ("'Sic utere tuo ut alienum non laedas,' is of universal and pervading obligation. It is a condition upon which all property is held."); Friendswood Dev. Co. v. Smith-Sw. Indus., Inc., 576 S.W.2d 21, 24 (Tex. 1978); see also Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 590-91 (Tex. 2016) (noting that the law of nuisance balances property owners' rights to use their property as they choose "in any lawful way" against their duty not to use it in a way that injures another); Gulf, C. & S.F. Ry. Co. v. Oakes, 58 S.W. 999, 1000-01 (Tex. 1900) (noting that under this general duty, one may not intentionally or negligently "cast earth or other substance from his own ground on a neighbor's" but also noting that restricting a lawful use of property requires a balancing of interests). When the violation of this duty causes an injury, the law may provide a cause of action and, consequently, a remedy; this general duty provides the foundation for some areas of tort law, such as nuisance. See Vill. of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 387, 47 S.Ct. 114, 118 (1926) (noting the maxim "lies at the foundation of so much of the common law of nuisances"); City of Houston v. Johnny Frank's Auto Parts Co., 480 S.W.2d 774, 777 (Tex. App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.) (same); Furst-Edwards & Co. v. St. Louis S.W. Ry. Co., 146 S.W. 1024, 1028 (Tex. App.-Austin 1912, writ ref'd) (stating that the maxim "indicates to what extent the Golden Rule is also the rule of law in cases of damage by negligence") (reh'g granted on other grounds, May 1, 1912); cf. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1031, 112 S.Ct. 2886, 2901-02 (1992) (holding in a takings case that South Carolina could not enjoin the use of property on public nuisance grounds by relying on a conclusory assertion that the property owner's intended use violated the maxim of sic utere tuo ut alienum non laedas and instead had to "identify background principles of nuisance and property law that prohibit the uses [the property owner] now intends in the circumstances in which the property is presently found").

         In some circumstances, courts have impliedly used this general duty, as expressed in the laws of that state, to impose an obligation on landowners to provide lateral support[8] to their own property after raising the grade of their land. The reasoning is essentially this: when a landowner has no duty to provide lateral support to a higher-elevated adjoining property, then the duty that the owner of the higher property has- to avoid causing harm to the lower neighboring property-imposes on that owner an obligation to keep the owner's soil from sloughing off onto the lower property.[9] See, e.g., Kennedy v. Rosecrans Gardens, Inc., 249 P.2d 593, 594-95 (Cal. Dist. Ct. App. 1952) (holding that when defendant landowner raised the grade of its land, causing earth and water to be deposited on its adjoining neighbor's now lower-elevated land, the defendant committed trespass, and the plaintiff was entitled to damages or injunctive relief because the harmful results were not trivial). In such a case, the owner of the higher-elevated property must support his or her own property to prevent soil from the higher land from falling, and to that end, courts have sometimes required the owner of the higher-elevated property to build a retaining wall. See, e.g., Sime v. Jensen, 7 N.W.2d 325, 327-28 (Minn. 1942) (holding that because an owner who raises his land above the level of adjoining land has no right of lateral support from the adjoining land for the now-elevated soil and is also under the duty to keep the fill soil off adjoining land, a landowner who raises the grade of his lot must build a retaining wall or other structure if necessary to keep the soil within the owner's property, and the plaintiff in the case was guilty of nuisance and trespass for failing to keep his soil off the defendant's land);[10]see also Abrey v. City of Detroit, 86 N.W. 785, 786 (Mich. 1901) (holding that under the maxim sic utere tuo ut alienum non laedas, "[w]hen 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"); Tortolano v. DiFilippo, 349 A.2d 48, 51 (R.I. 1975) (citing Sime to hold that a court may require"[a]n owner who alters the grade of his land to a level above his neighbor's" to build a retaining wall on his property because the owner who raises his land "is under a duty to keep the fill used from falling or sliding onto the adjoining parcel," and explaining that "[t]he underlying rationale of this rule is that a landowner who fills his lot above the level of the lot of an adjoining landowner has no right to lateral support from the latter and the latter cannot be compelled to contribute to the cost of a retaining wall").

         Even in these cases, the duty is not specifically to build a retaining wall. The duty, as expressed through various causes of action, is for landowners to avoid using their property so as to injure another's property-in the cases cited above, by preventing soil from falling onto a neighbor's property. Building a retaining wall or other structure may in some circumstances be the proper method to satisfy that duty. We therefore decline to apply Sime, Abrey, Kennedy, or similar out-of-state cases to hold that under Texas law, the general duty applicable to all property owners imposes an absolute duty on either the Scotts or the Adjoining Neighbors to repair the Retaining Wall. Rather, requiring one or more parties to undertake a repair is only a possible remedy for a breach of this general duty, not a strict, absolute obligation. What the proper remedy would be upon proof of a breach of this duty depends on the cause of action asserted, the remedies available for that cause of action, and whether the evidence at trial supports a right to a remedy under that cause of action.[11] See, e.g., Pauli v. Hayes, No. 04-17-00026-CV, 2018 WL 3440767, at *9 (Tex. App.-San Antonio July 18, 2018, no pet.) (mem. op.) (stating that permanent injunctive relief may be granted as a remedy for a nuisance but that "the injunction must be narrowly drawn and precise and 'must not . . . be more comprehensive or restrictive than justified by the pleadings, the evidence, and the usages of equity'" (citation omitted)). Thus, for example, while in theory Retaining Wall repair could be imposed on the Adjoining Neighbors if, in breach of a duty, they failed to keep their soil on their own land, see Oakes, 58 S.W. at 1000-01, such a repair could only be as a remedy for the breach of that duty. In other words, the requirement to repair the Retaining Wall is not the legal duty itself, but the remedy for a breach of a duty. There is certainly no absolute duty-i.e., one where its breach results in strict liability-imposed by tort law to repair the Retaining Wall.

         We granted this permissive appeal merely to determine whether an absolute duty vis-à-vis the Retaining Wall exists, not whether there has been a breach of any duty and, if so, whether the proper remedy is to repair the Retaining Wall. Importantly, we do not determine, and express no opinion as to, whether any party may ultimately be required to provide such a remedy under tort law.

         II. The Doctrine of Lateral Support Does Not Impose an Absolute Duty to Repair the Retaining Wall.

         In some cases, property law imposes an absolute duty on landowners to provide support to adjoining land. This duty arises from the doctrine of lateral support. As discussed herein, as with the general tort law duty that property owners may not use their own property in a manner that injures others, the property law doctrine of lateral support does not impose a strict, absolute duty to repair the Retaining Wall on any party.

         A. A Landowner Has an Absolute Right to Lateral Support Provided by Adjoining Land.

         The right of lateral support is an established property right under the common law. See Foley v. Wyeth, 84 Mass. (2 Allen) 131, 132 (1861) (noting that "[f]ew principles of the law can be traced to an earlier or to a more constant recognition, through a long series of uniform and consistent decisions, than this" doctrine). Through this right, the common law recognizes that while land can be divided for purposes of ownership, the divided tracts remain physically connected to each other, and each tract affects and is affected by adjoining tracts. See Comanche Duke Oil Co. v. Tex. Pac. Coal & Oil Co., 298 S.W. 554, 560 (Tex. Comm'n App. 1927) ("In a sense, one tract of land cannot be used unless there be also consequential use[] of neighboring tracts. This is sequent of that delicate relationship which Nature has imposed upon the tangible and intangible constituents of earth and air."); see also Tiffany Real Property § 752, Westlaw Tiffany-RP (database updated Sept. 2018) (observing that "[r]eal estate . . . comprises a portion of the earth [that] . . . extends upward into the air and downward into the soil to an indefinite extent" and "is not a separate and distinct parcel of land, but is, in its natural state, held together, connected and protected by natural forces which have existed from time immemorial").

         As part of this physical connection, two connected tracts both provide lateral support to and receive lateral support from each other. Under the common law, each tract owner has the right to have that support maintained and has the corresponding duty not to remove that support from an adjoining neighbor in a way that causes the neighbor's soil to subside. Williams v. Thompson, 256 S.W.2d 399, 403 (Tex. 1953) ("[E]ach of two adjoining landowners is entitled to the lateral support of the other's land."); Comanche Duke Oil, 298 S.W. at 559 ("[T]here is an area of a sort of common ownership near the boundary and from surface to center of the earth; that ownership being known as the right to 'lateral support.'"); see Tiffany Real Property § 752 ("As a general rule, every landowner is entitled to have his soil remain in its natural position, without being caused to fall away by reason of excavations or other improvements which may be made on neighboring land."). This is the right of lateral support. See N. Transp. Co. v. City of Chicago, 99 U.S. 635, 645 (1878) (stating that "every land[]owner has a right to have his land preserved unbroken," and therefore a landowner "must not remove the earth so near to the land of his neighbor that his neighbor's soil will crumble away under its own weight"), abrogation on other grounds recognized by Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 325 n.21, 122 S.Ct. 1465, 1480 n.21 (2002); Simon v. Nance, 100 S.W. 1038, 1040 (Tex. App.-Austin 1907, no writ) ("[N]either the adjoining landowner, nor ...

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