Daily Development for Monday, February 21, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri


NUISANCE; LATERAL AND SUBJACENT SUPPORT: Where landowner fills, raises, or otherwise improves the land from its natural condition, an adjoining landowner has no duty to provide lateral support to landowner’s land with respect to the altered portion of the land, whether or not the adjoining landowner has acquired the property from the landowner after the fill has occurred.

XI Properties, Inc. v. Racetrac Petroleum, Inc., 2004 WL 2903990 (Tenn. 2004).

Defendant built a parking lot for its business on adjacent vacant property that it owned, adding some fill dirt and a sloped bank as part of the project.  Later, Defendant sold what it thought was the unused balance of that vacant land to Plaintiff - approximately three acres.  In fact, however, the deed included the bank and a little of the parking lot.

Later, when Plaintiff decided to develop its property, it made plans  to excavate the sloped embankment and notified Defendant of its plans.  (Apparently there was no way to “undo” the original deal.)    A dispute arose with the Defendant over whether Plaintiff had the right to excavate without providing protection against any subsidence of the parking lot.

The Tennessee Supreme Court, held that Plaintiff could cut into the slope because Defendant’s property was not in its natural state and had been improved with the parking lot, Plaintiff did not owe a duty to Defendant to provide lateral support along the improved portion of Defendant’s property.  The only duty owed by Plaintiff was to conduct its excavation with “reasonable care” - presumably  in such a way that it did not unreasonably increase the danger of subsidence that an ordinary excavation project might involve.  Thus, Plaintiff had a duty to notify Defendant and to make such choices in the design of its project as to take into account reasonably the impact on the Defendant’s parking lot.  But, in the final analysis, it could excavate even if damage to the parking lot would result.

Noting that this was a case of first impression, the court took the opportunity to adopt the complete set of common law rules regarding lateral support.  It noted that parties do have an absolute duty of support to neighboring property in its natural state, but that when that property is no longer in its natural state, there is no duty to preserve it.  Further, when there are artificial improvements on adjacent property, even if the ground is in its natural state, there is no absolute duty.  As noted, there is still a duty of care - usually fulfilled by giving the neighboring landowner an opportunity to protect itself against the consequences of the excavation and taking such other reasonable steps, consistent with the right to excavate, that would not unreasonably increase the risk to the neighbor.

In this case, Defendant argued that the “natural state” was the condition in which Plaintiff received the property.  The court demurred, however.  “Natural” apparently means “untouched by human hands.”  “[T]he most widely accepted authorities uniformly regard the "natural" condition of land to mean a condition ‘which is not in any way the result of human activity.’”

In fact, the court noted that in a case where one has altered the level of its own land, it owes a duty to its neighbor to protect from any subsidence onto the neighboring land.  Thus, the Court held that at such time as the Plaintiff removed the sloped embankment, the defendant, at its sole cost, would have to ensure that the fill dirt on its property did not collapse onto Plaintiff’s property, perhaps even constructing and maintaining a retaining wall for such purpose

Comment 1: The court cited to both the First Restatement of Torts and the Second Restatement of Torts.  Therefore, it is likely that other aspects of lateral support in Tennessee not discussed in this case will also be resolved according to the Restatement.

Comment 2: In response to an earlier DIRT inquiry, I looked up some other issues about support liability that are not involved here, but that may well occur to readers.

The first question has to do with successor liability when one undertakes to do an excavation and thereafter transfers the property.   I found the following example 10 to Section 817 of the Restatement 2nd of Torts:

10.  A and B are severally in possession of adjoining lands.  A's land is in its natural condition.  B makes an excavation in his land.  B transfers his land to C.  The excavation causes A's land to subside.  B is, and C is not, subject to liability to A under the rule stated in this Subsection.

This states the absolute liability of B.  Note that C, the successor, gets out.

Comment 3:   The responsibility for maintenance of retaining walls is worth noting.  Other sections indicate that if B, an excavator, puts up a retaining wall or other support structure that prevents subsidence of neighboring property in its natural state, and C, a successor to B later removes it after obtaining possession of the land, then C in fact will have absolute liability.

Note that in this case there was a “retaining structure” on Plaintiff’s land, but it had not been built to preserve subsidence caused by an excavation, but rather to support an enhancement to Defendant’s property.

Comment 4: Did the court (and possibly the litigants), miss an important aspect of the case that might have led to a different result?  Was the retention slope an open and obvious “quasi easement” giving rise to an argument for  implied easement by reservation favoring Defendant?  Perhaps the slope wasn’t obvious enough to justify such a claim.  What if it had been an actual retaining wall?  Wouldn’t it be “apparent, continuous, and necessary?”  Maybe Tennessee is more conservative about the degree of necessity to justify an implied easement by reservation, but the editor finds it interesting that the court did not discuss this approach to the problem at all..

Readers are encouraged to respond to or criticize this posting.

Items reported on DIRT and in the ABA publications related to it  are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters.  The same is true of all commentary provided by contributors to the DIRT list.  Accuracy of data provided and opinions expressed  by the DIRT editor the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.


Parties posting messages to DIRT are posting to a
source that is readily accessible by members of
the general public, and should take that fact
into account in evaluating confidentiality


DIRT is an internet discussion group for serious
real estate professionals. Message volume varies,
but commonly runs 5 - 15 messages per work day.

Daily Developments are posted every work day.  To
subscribe, send the message

subscribe Dirt [your name]



To cancel your subscription, send the message
signoff DIRT to the address:


for information on other commands, send the message
Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only
commercial and general real estate matters but also focuses upon residential real estate matters.  Because real estate brokers generally find this service more valuable, it is named “BrokerDIRT.”  But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list.  If you subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as BrokerDIRT carries all DIRT traffic in addition to the residential discussions.

To subscribe to BrokerDIRT, send the message

subscribe BrokerDIRT [your name]



To cancel your subscription to BrokerDIRT, send the message
signoff BrokerDIRT to the address:


DIRT is a service of the American Bar Association
Section on Real Property, Probate & Trust Law and
the University of Missouri, Kansas City, School
of Law.  Daily Developments are copyrighted by
Patrick A. Randolph, Jr., Professor of Law, UMKC
School of Law, but Professor Randolph grants
permission for copying or distribution of Daily
Developments for educational purposes, including
professional continuing education, provided that
no charge is imposed for such distribution and
that appropriate credit is given to Professor
Randolph, DIRT, and its sponsors.

DIRT has a WebPage at:

Members of the ABA Section on Real Property, Probate
and Trust Law or of the National Association of Realtors can subscribe to a quarterly hardcopy report that includes all DIRT Daily Developments, many other cases, and periodic reviews of real estate oriented literature and state legislation by contacting Antonette Smith at (312) 988 5260 or asmith4@staff.abanet.org


Your e-mail address will only be used within the ABA and its entities. We do not sell or rent e-mail addresses to anyone outside the ABA.

To change your e-mail address or remove your name from any future general distribution e-mails you can call us at 1-800-285-2221, or write to: American Bar Association, Service Center, 321 N Clark Street, Floor 16, Chicago, IL 60610

If you are an ABA member, log in to the ABA Web site at http://www.abanet.org/abanet/common/MyABA/home.cfm to edit your member profile. Otherwise, complete the form located at https://www.abanet.org/members/join/coa2.html

To review our privacy statement, go to http://www.abanet.org/privacy_statement.html.

If you have any problems, please contact the list owner at