Lateral Land Support is Ongoing Duty

Deborah Elkins//June 7, 2012

Lateral Land Support is Ongoing Duty

Deborah Elkins//June 7, 2012

Although a landowner’s initial claim about an adjacent landowner’s failure to provide lateral support may have originated more than five years ago, with a prior owner, the duty to provide lateral support is ongoing and a Salem Circuit Court judge declines to dismiss plaintiff’s suit on the ground of laches.

Reminiscent of an earlier plea to the statute of limitations, defendants have now filed a plea of laches, using the same basic argument they previously made. Defendants also have filed a demurrer, claiming that because they are the successor in title to the previous owner who actually removed the lateral support from plaintiff’s adjoining land, there does not exist, and plaintiff has not alleged, a theory of law that would make them liable to plaintiff.
Plaintiff is statutorily barred under Va. Code § 8.01-243(B) from seeking compensation for damages that occurred more than five years prior to suit. In this case, however, plaintiff is also seeking equity by requesting injunctive relief to require defendant to provide lateral support.

The damage here is claimed to be the result of a continuous or newly occurring harm. It is not the harm that occurred at the time of the first excavation. It is instead a harm that continues daily because of the failure of defendants’ adjoining land to provide the required lateral support necessary to keep plaintiff’s land from eroding or subsiding. This duty and obligation runs with defendants’ servient land, just as the benefit continues to run with, and for the advantage of plaintiff’s dominant land. The circumstances of this particular case render the doctrine of laches inapplicable, as the allegations are the new injuries and new failures to provide lateral support continue to occur.

Further, the obligation of defendants’ land to provide lateral support for plaintiff’s land does not go away merely because of the passage of time. It is always an obligation of defendants’ land to provide the lateral support for plaintiff’s land so as to prevent it from eroding or subsiding from its natural state.

When defendants bought their land, they also obtained and undertook the appurtenant servitude to provide lateral support to plaintiff’s land, whether they wanted it or not.

Plaintiff’s right to have her land supported laterally by defendants’ land simply does not go away.

Lee v. Lemon (Doherty) No. CL 11-155, May 29, 2012; Salem Cir.Ct.; William C. Maxwell, Wade T. Anderson for the parties. VLW 012-8-073, 3 pp.

VLW 012-8-073

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