Benjamin v. Metropolitan Street Railway Co.

<p>Appeal from Jackson Circuit Court. — Hon. Turnee A. Gtill, Judge.</p> <p>Action for damages alleged to have occurred by the negligent removal of lateral support to plaintiff’s-building, in consequence of which the latter fell. The trial court instructed the jury that plaintiff could not recover, upon which he took a nonsuit with leave, etc. The plaintiff appealed in due form.</p> <p>The other facts appear in the opinion.</p> <p>(1) A proprietor who makes excavations in his own land, near the premises of his neighbor, in a careless and negligent manner, is liable in damages for injuries to the building of the adjoining owner, which were the consequence of his carelessness and negligence in the work of excavation. Charless v. Rcmkin, 22 Mo. 566; Stevenson v. Wallace, 27 Gratt. 89; Moody v. McClelland, 39 Ala. 52; Myer v. Hobls, 57 Ala. 177; Shafer v. Wilson, 44 Md. 269; Austin v. Railroad, 25 N. Y. 334; Quincy v. Jones, 76 111. 231; McMillan v. Staples, 36 Iowa, 532; Dodd v. Holme, 1 Ad. & Ell. 493; Foley v. Wyeth, 2 Allen, 131; Washburn on Easements [4 Ed.] top p. 582, et seq., side p. 430 et seq., Thompson on Negligence, 276; Cooley on Torts [2 Ed.] top p. 707, side p. 595; Wood on Nuisances [2 Ed.] secs. 189, 190. (2) That the work of excavation was carelessly and negligently done, and that the injury to the building was the result, was clearly established by the evidence. (3) Although work has 'been let to a contractor, this fact will not exonerate a party for whom the work is performed from liability for the negligent acts of the •contractor, or his servants, if the right to control or direct the mode or manner of the work in any respect is retained, or if such control be in fact exercised, or such direction assumed. Speed v. Railroad, 71 Mo. 303; Railroad v. Hanning, 15 Wall. 657; Heffernan v. Benkard, 1 Robertson (N. Y.) 432; Sclnvarts v. Gilmore, 45 111. 457; Faren v. Sellers, 39 La. Ann. 1011; Brophy v. Bartlett, 15 N. E. Rep. (N. Y.) 368; Jones v. Chantry

Buy and Sell Contract—Mineral Rights—Warranty Deed—Negligence—Breach of Contract—Statute of Limitations—Third Party—Cause of Action—Accrual Date. The Bells hired Orr Land Company LLC (Orr) and its employee Ellerman to represent them in selling their real property. Orr found a buyer and the Bells entered into a buy and sell contract with the buyer, which provided, as pertinent here, that the sale excluded all oil, gas, and mineral rights in the property. Orr then retained Land Title Guarantee Company (Land Title) to draft closing documents, including the warranty deed. In 2005 the Bells signed the warranty deed and sold the property to the buyer. The Bells didn't know that the warranty deed prepared by Land Title didn't contain any language reserving the Bells' mineral rights as provided in the buy and sell contract. For over nine years, the Bells continued to receive the mineral owner's royalty payments due under an oil and gas lease on the property. In 2014 the lessee oil and gas company learned that the Bells didn't own the mineral rights, so it began sending the payments to the buyer. After that, the Bells discovered that the warranty deed didn't reserve their mineral rights as provided in the buy and sell contract. In 2016 the Bells filed this negligence and breach of contract action against defendants Land Title, Orr, and Ellerman. Defendants moved to dismiss, arguing that the Bells' claims were untimely because the statute of limitations had run. The district court granted defendants' motion to dismiss. On appeal, the Bells contended that the district court erred in granting defendants' motions to dismiss because they sufficiently alleged facts that, if true, establish that the statute of limitations didn't begin to accrue on their claims until the oil and gas company ceased payment in September 2014, which is when they contended they discovered that the warranty deed didn't reserve their mineral rights. A plaintiff must commence tort actions within two years