delivered the opinion of the Court:
This was trespass qiiare clausum, brought in the Cook county circuit court, by appellee against appellant. Plea, not guilty. There was a trial before the court and a jury at the May term, 1872, and verdict and judgment against appellant. The evidence and rulings of the court were preserved by bill of exceptions, and the case brought to this court, where the following errors are assigned and relied upon: (1.) The verdict is against the weight of the evidence. (2.) The court admitted the declarations of defendant’s sons in evidence. (3.) The ■instructions asked on behalf of defendant were improperly modified, and others wholly refused.
The first ground for reversal involves two elements of the case, viz: (1.) Want of sufficient evidence that a trespass was committed upon plaintiff’s land by anybody. (2.) If there was, then a want of exddence to connect defendant therewith.
The close upon which the alleged trespass was committed xvas a lot in the city of Chicago, 25 feet in xvidth, on which was a building in plaintiff's possession. The defendant xvas lessee of the lot adjoining that of plaintiff on the east, on which defendant was erecting a house, requiring an excaxmtion probably for a cellar. This house was erected by defendant’s son, a young man living in his family, under a very indefinite contract, xvith defendant, xvho furnished all the means. It xvas a sharply contested question, upon the trial, xvhether said excavation was made to extend beyond the line between the two lots, and upon that of plaintiff. There was much evidence upon both sides of the question.
We are unable to say that there was any such manifest weight and preponderance in favor of the defendant as would warrant this court in interfering with the finding of the jury, which we must intend was, that the excavation did extend beyond the line, or that other trespasses to plaintiff’s close were committed.
There was evidence strongly tending to show that this work was done subject to defendant’s control, and that he approved and ratified what was done. If the trespass was committed by the direct execution of plans devised and employed by him by his previous command or subsequent ratification, he would be liable. The finding of the jury upon this branch of the case is likewise conclusive. It is unnecessary for this court to repeat a score of times each year the rules which govern in such cases.
The only question made upon the admissibility of evidence is that based upon the admission of the declarations of defendant’s sons. The record shoAVS that the defendant Avas present when these declarations Avere made. All conversations relating to any of the points in issue, held or had in the presence and hearing of the opposite party, are admissible as' evidence against such party. Not that everything asserted in the presence of the party and not denied by him is to be regarded as true, but the circumstances are to be weighed by the jAiry as having a tendency, greater or less, according to their nature, to establish particular facts, by tacit admission.
Lastly, as to instructions. The proposition of Iuav invohmd in the 8th instruction, Avhieh was refused, is fully embodied in the 6th that Avas giAmn.
The 9th instruction, the refusal of which is urged as a ground of reversal, is as folloAvs:
“If the jury believe, from the eAÚdence, that the alleged excavations were made on the land of the defendant, and did not extend on to the land of the plaintiff, then no trespass was in fact committed, and the jury should find for the defendant.”
This instruction is too broad, and should not have been given. Although the excavations were made- on the land of defendant, yet, if they were so made as to cause plaintiff’s land to fall into them of its own weight, and without reference to the superincumbent weight of a building erected upon plaintiff’s land, an action would lie for the injury, and might properly be trespass. In the language of Rolle: “It seems that a man who has land next adjoining to my land can not dig his land so near to my land that thereby my land shall fa-11 into the pit, and for this, if an action were brought, it would lie.” Wilde v. Minsterly, 2 Rolle Abr. 565; Humphries v. Bragden, 12 Q. B. 743; Thurston v. Hancock, 12 Mass. 229; Farrand v. Marshall, 21 Barb. 409; Lasala v. Holbrook, 4 Paige Ch. 169; 2 Washb. on Real Prop. 75, and cases cited in notes.
The modification of defendant’s first instruction was very properly made, because the hypothesis of the instruction, as asked, was not that the excavations complained of were made exclusively on the defendant’s own soil.
The evidence of plaintiff tended to show that, while the excavations were principally made on defendant’s lot, yet, that they extended several inches over upon that of plaintiff. The legal proposition of the instruction, as asked, could only be proper in case the .Jury found that the excavations did not extend beyond the line of defendant’s lot; but,' by it, as asked, the jury were not required to so find, and the court properly made the addition.
The second instruction, as asked by defendant, was as follows :
“The jury are instructed that the plaintiff, by building his house near to the extremity of his own land, did not thereby acquire any right of support over the defendant’s adjoining land, so as to deprive defendant of his right to use or excavate his land, and the defendant, by exercising ordinary care and skill, had the right to make reasonable improvements or excavations on his own land or soil, although such improvements or excavations should injure or endanger the building of plaintiff located on the adjoining land, and for injury thus caused he can not recover.”
The court refused this instruction, as asked, and added: “If the jury also believe, from the evidence, upon making such excavations he gave reasonable notice to the plaintiff of his intention to excavate the soil and build upon his, defendant’s, land.”
The modification by the court was clearly erroneous. The action was trespass to plaintiff’s close. Plaintiff could not recover in this action by reason of any negligence on the part of defendant to give notice of his intention to excavate. It is implied by the modification, and the jury must have so understood it, that defendant would be liable in this action for consequential injuries to plaintiff’s building arising from excavations made even on defendant’s own lot, provided defendant omitted to give plaintiff reasonable notice. If the action had been case for making the excavation in a negligent or unskillful manner, this modification would not have been proper, because it excludes the idea that plaintiff might ha.ve had full knowledge of the intended excavation from other sources, as he undoubtedly did.
„ But the action being trespass, it could be sustained by no mere negligence or unskilfulness in making the excavation on defendant’s own lot.
If the evidence satisfactorily established the fact of an actual entry upon plaintiff’s close, and making an excavation therein, then the defendant, if guilty, would be liable for all the natural, probable consequences of the act. This is the theory upon which the plaintiff tried the case, but it was controverted by the defendant with nearly an equal if not greater strength of evidence. Then, even upon a denial of plaintiff’s theory successfully maintained, other considerations might arise.
There is no denial of the fact that an excavation was made upon defendant’s lot, and nearly if not quite up to the line. What were defendant’s liabilities to plaintiff under this view? There is no question of prescriptive right. Plaintiff’s building was of recent erection. The defendant had the lawful 'right to excavate his own land for such purposes as he saw fit; and if, in so doing, the adjacent earth gave way so as to cause either the falling or settling of plaintiff’s house, by reason of such additional weight being thereby placed upon the natural. soil, the plaintiff was withput remedy in this action for the damage thus sustained to his house.
“ The right of a land owner,” says Washburn, “to support his land against that of the adjacent owner, does not extend to the support of any additional weight or structure he may place thereon.” Washb. on Real Prop. (marg. p.) 75. Upon this point the defendant had the right to have the law correctly given to the jury.
For the error in modifying the second instruction for defendant, as stated, the judgment of the court below must be reversed and the cause remanded;
Judgment reversed