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Proud v. W.s. Bills & Sons

JANUARY 8, 1970.

CHARLOTTE PROUD, PLAINTIFF-APPELLEE,

v.

W.S. BILLS & SONS, INC., AN ILLINOIS CORPORATION, DEFENDANT-APPELLANT, AND UNION CORPORATION, AN ILLINOIS CORPORATION, DEFENDANT.



Appeal from the Circuit Court of LaSalle County, Thirteenth Judicial Circuit; the Hon. LEONARD HOFFMAN, Judge, presiding. Affirmed.

ALLOY, J.

Rehearing denied February 12, 1970.

This is an appeal from a judgment of the Circuit Court of LaSalle County, entered pursuant to motion for summary judgment, against defendants, W.S. Bills & Sons, Inc., a corporation, and Union Corporation, a corporation, in the sum of $27,000 plus costs.

The action was instituted by plaintiff, Charlotte Proud, for damages sustained when a building on her property collapsed as a result of excavations made on adjoining property. The defendants in the action were the owner of the property, Union Corporation, an Illinois Corporation, and W.S. Bills & Sons, Inc., the contractor excavating for the owner. The defendant-contractor, W.S. Bills & Sons, Inc., appeals from such judgment.

The building owned by the plaintiff was located on Main Street in Streator, Illinois. Defendant Union Corporation was the owner of the adjacent property. Union Corporation intended to demolish the building on its property in order to construct a new bank building on the site. The new construction required an excavation extending more than eight feet below the surface.

The provisions of chapter 70 of 1967 Ill Rev Stats, par 10, dealing with Protection of Adjacent Landowners became applicable. This statute provides that if an excavation is to be made which is less than eight feet in depth and is such as might cause damage to a building on adjoining land, the "owner or possessor" of the land on which the excavation is to be made, shall notify the adjoining property owner of such work and allow him 30 days in which to take steps to protect the building from damage. In section 2 of said Act, it is expressly provided that if the "owner or possessor" of the land on which the excavation is to be made fails to comply with the statute, he is liable for damages to the building on the property adjoining the excavation site.

Section 5 contains provisions in the event the excavation is deeper than the eight-foot standard depth foundations. Such section provides expressly:

"If the excavation is intended to be or is deeper than the standard depth of foundations as herein defined, then the owner of the land on which the excavation is being made, if given the necessary license to enter on adjoining land, and not otherwise, shall protect the said adjoining land and any building or other structure thereon, without cost to the owner thereof, by furnishing lateral and subjacent support to said adjoining land and all buildings and structures thereon, in such a manner as to protect the same from any damage by reason of the excavation and shall be liable to the owner of such property for any damages to the land or to any buildings or other structures thereon."

Section 6 of the Act provides:

"The owner or possessor of the land upon which the excavation is being made shall also be liable to occupants and tenants of such adjoining lands or structures thereon for any damage to their property or business, proximately resulting from injury to such land or structures, caused by the failure of such owners or possessor, making such excavation, to fulfill the duty set forth in subparagraph 5."

Union Corporation notified plaintiff of its intention to excavate, and the two parties entered into an agreement with respect to the party wall and the excavation. This agreement was entered into on December 29, 1966, and provided that the party wall was to be the sole property of plaintiff, Charlotte Proud. In such agreement is found the following provision:

"It is, however, further agreed between the parties hereto that said first party [Union Corporation] in order to protect the old party wall may construct such additional supports or underpinning as may be considered advisable by its engineers or agents and will have the right to cap said old party wall and the new wall to be constructed by said first party as in its opinion, or in the opinion of its engineers or agents will be advisable to avoid the accumulation of moisture between the old party wall and any additional wall that may be built by said first party. Said first party shall protect and save harmless the said second party [Charlotte Proud] from any structural damage to said old party wall occasioned by the construction as above provided of additional supports or underpinning in, or under the foundation of said old party wall, or in the capping of said old party wall by said first party herein described."

On January 6, 1967, defendant Union Corporation entered into a contract with W.S. Bills & Sons, Inc. whereby the contractor, W.S. Bills & Sons, Inc. agreed to perform all services and furnish all materials necessary to erect the new bank building for Union Corporation. The contractor also was to excavate and protect the west wall of the Proud building. The agreement also provided that the contractor was to hold Union Corporation ...


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