Dissenting Opinion.
Wiley, J.— I fully concur with Henley, J., in the conclusion reached in his dissenting opinion. He has discussed, however, but three questions: (1) *509Does tlie law excuse an employer from the consequences of a wrongful act of an independent contractor? (2) Do the special findings sfiow that the parties employed to do the work were independent contractors? And, (3) was appellee’s injury the result of the act of the employer, or of the independent contractor? In the dissenting opinion of my associate, each of .these inquiries are resolved adversely to appellee, and in my judgment, they are so strongly entrenched by the authorities, and sound legal principles, and are so clearly and forcibly expressed, that there is no escape from the conclusion reached. Upon the questions therefore discussed by him, it is wholly unnecessary for me to add anything, except what may incidentally be said in discussing other questions, for upon that question alone, the judgment, in my opinion, ought to be reversed. .
But it seems to me that there are other questions presented in the record, which also preclude appellee’s recovery. In, the opinion of the majority of the court, these questions have not been given the consideration, it seems to me, that their importance demands, the learned judge who wrote the opinion being content to affirm the judgment, basing his conclusion upon the questions discussed'by him.
While appellate tribunals are not required to take up, discuss, and decide, cereatim, every question presented by the record, yet it is but fair at least, to litigants, to decide all pivitol questions upon which their legal rights depend, and which are fairly and honestly presented by the record.
Appellee prosecuted this action for the recovery of damages, for the alleged negligent act or acts of the appellant. It was therefore necessary for it to aver in its complaint, and prove upon trial, not only acts of actionable negligence on the part of the appellant, *510but also that the injury complained of was without the fault or negligence of the appellee. This is an elementary rule both of pleading and practice.
A special finding of facts as made by the court serves the same purpose in the trial of a cause as a special verdict returned by a jury. In the latter case, the rule is invariable, in this State, that the special verdict must find and state all the facts essential to the recovery of the party having the burden of proof, and if it fails to do so, the verdict is ill, and will not support a judgment.
In support of so familiar a rule, I do not deem it necessary to collect and cite the authorities, but content myself in citing two cases recently decided by this court, in which many of the authorities pertinent to the question now under consideration are collected, viz: Louisville, etc., R. W. Co. v. Carmon (Ind. App.), 48 N. E. 1047; Wabash R. R. Co. v. Miller, 18 Ind. App. 549. It being a prerequisite to appellee’s right of recovery that it must both aver and. prove its freedom from fault, it logically and legally follows that the special findings must state and show facts from which the court can adjudge, as a matter of law, whether or not he was free from fault.
From the ninth specification of the special finding I quote the following: “That the situation and condition of the bricks in the street and gutter and excavation and Marshall’s wall were plainly observable and known both to defendant and plaintiff through its president and secretary; that said defendant, from the time of the commencement to tear down his said old brick building, up to and including the 23rd day of June, 1892, visited said work two or three times each week, for a short time, to see how the work was progressing, and that Matthias Dienhart and Frank X. Dienhart, president and secretary of plaintiff were *511present daily in the prosecution of plaintiff’s business in said Marshall building, and that said president and secretary had the full control and management of said plaintiff.” In finding ten the court stated the manner in which the Marshall building fell, detailed the specific damages plaintiff sustained, and then concluded with the following: “And that said damage so caused occurred without any fault or negligence on the part of said plaintiff.” From finding thirteen, I quote the following: “That both the president and secretary of said company had full management of "the business of the company, and knew from the time that said defendant Bohrer commenced the tearing down of his old brick building that he was going to erect a new building covering all of his part of said lot 68, with a cellar thereunder, and that said' president and secretary were present from day to day, and saw how the work was being done, and how the said gutter was being obstructed, and made no objection thereto.” The only finding of fact, as to appelleé’s freedom from fault, is that above quoted from finding number ten, in which the court finds and states as a fact that the damage sustained by appellee was without its fault or negligence.
It has been repeatedly held that a finding in a special verdict, that a damage sustained by the plaintiff, was without his fault or negligence, was not the statement of a fact, but a conclusion of law. Wabash R. R. Co. v. Miller, supra; Louisville, R. W. Co. v. Carmon, supra, and authorities there cited. It is the duty of the jury, in returning a special verdict, to state all the facts disclosed by the evidence, as to the negligence or non-negligence of the plaintiff, and, updn such facts, it is the duty of the court to apply the law, and declare, as a matter of law, whether the plaintiif was or was not free from fault or negligence on his part.
*512As the special findings made by the court subserve the same office as the special verdict of the jury, it logically follows that, to entitle the party having the burden óf proof, to a judgment upon the special findings, such findings must state every fact essential to his recovery. In case of a failure so to find and state every such essential fact, the finding will not support a judgment. There is not a fact found in the special finding before us which I have been able to discover, after the most diligent search, from which the court can say, as a matter of law, that appellee was free from fault; while, on the contrary, facts are found which clearly show it was not without fault, and from which the court could and should declare, as a question of law, that it was guilty of negligence. The finding that appellee was without fault or negligence, besides being objectionable as a conclusion of law, cannot prevail against the findings which expressly show such negligence.
Appellee was a tenant of one Marshall, occupying the building which fell and caused the injury. Marshall was a nonresident. Appellee, by its president and secretary who had charge of and managed its business, was present at said building daily, from the time the contractors began to tear down appellant’s old building to the time the building it occupied fell. They had equal if not greater opportunities to observe everything that was done in and about tearing down the old brick building, piling the bricks in the street, and excavating the cellar for the new building, than appellant. They stood by, saw all that was done, made no objections, but tacitly acquiesced therein. Thej did not make any efforts to ascertain the condition of the foundation wall, which gave support to the building they were occupying, as the earth and soil were being removed from appellant’s lot. They knew, as *513appellant knew, that it was suck earth and soil that gave lateral support to such wall. They knew, or were bound to know, that if such foundation wall was insecurely constructed, or had become weakened by age, or that the material with which it was constructed had become rotten or impaired by the natural results of the elements, the removal of such lateral support would necessarily impair and weaken it, and might cause it to fall. Yet notwithstanding this knowledge, so far as is shown by the findings, they did not even take the precaution to examine or have it examined, and made no efforts whatever to protect themselves from the impending danger. Neither did they notify their landlord. Here Marshall owned the south half and appellant the north half of lot 68. On the south half a building had been erected some twenty years before the date of the injury complained of. The' south foundation wall of such building, as I gather from the findings, was all on that part of the lot owned by Marshall, but flush up to the dividing line between the south and north halves, so that in the excavation of appellee’s cellar, he did not trench upon any portion of the lot owned by Marshall. It seems to me that no one can deny appellant’s right to remove the soil from his part of the lot, and thus take from such foundation wall its lateral support. The right of lateral and subjacent support exists ex jure naturae, as an incident to the soil alone. There is no natural right for such support when any structure or extra burden is placed upon the soil, and, if any such right exists, it must be acquired by grant, express or implied, by prescription, or in some manner known to the law. When thus acquired it is an easement. 12 Am. and Eng. Ency., p. 935; Stevenson v. Wallace, 27 Gratt (Va.) 77.
*514While this right to lateral support of land in its natural state is absolute, and the liability of any one who deprives the land of material support is unqualified, yet, in the case of structures which have not acquired the right of support in some manner known to the law, a person who is about to endanger the support of adjoining property is under a duty or obligation to give the owner thereof due notice of his inten: tion, and in the prosecution of his woi*k he must use due care and skill. 12 Am. and Eng. Ency., 937. The English rule, as declared in many cases, is that a party who is about to endanger the building of his neighbor by a reasonable improvement on his own land is bound to give the owner of the adjacent lot due notice of the intended improvement, and to use ordinaxw skill in conducting the same and that it is ‘the duty of the latter to shore or prop up his own building, so as to render it secure in the meantime. Peyton v. Mayor of London, 9 Barn. & Cress 725, 4 Man. & R. 625; Walters v. Pfeil, 1 Moody & Malk. 362; Massey v. Goyder, 4 Carr & Payne 161, 25 Am. Dec. 524.
As to appellee’s dxxty to shore or prop up the building, or notify its landlord to do so, so as to protect it froxn danger, resulting from the excavation made by appellant, there can be no doubt, in the light of the adjudicated cases, both in England and the United States. I have cited some English cases, so holding, and subjoin the following: Block v. Haseltine, 3 Ind. App. 491, 496; Charless v. Rankin, 22 Mo. 566, 66 Am. Dec. 642, and note, pp. 648-651; Panton v. Holland, 17 Johns. 92, 8 Am. Dec. 369; Lasala v. Holbrook, 4 Paige Ch. 169, 25 Am. Dec. 524; Aston v. Nolan, 63 Cal. 269; Ketcham v. Newman. 141 N. Y. 205, 36 N. E. 197; Schultz v. Byers, 53 N. J. Law 442, 26 Am. St. 435:
*515For the purpose of so protecting the building by shoring, or propping, appellee would have had the right to go upon appellant’s premises if necessary to accomplish such purpose. Though the weight of the authorities hold that notice should be given, yet in this case, as the owner of the building was a nonresident, notice to him was not necessary; but it was sufficient for his tenant, the appellee, to have such notice. Schultz v. Byers, 53 N. J. Law, 442, 22 Atl. 514.
I find a very instructive case in Pennsylvania on the relative rights of adjoining lot owners, and quote the following from it: “The owner of the lot, who improves it by putting up a dwelling or other house thereon, extending to the boundary of the same, which is a mere line of length without breadth separating his lot from the adjacent one belonging to another and remaining unimproved, must be considered as bound to use suitable materials and the requisite skill in doing so, in order that the walls of his building next to the adjacent lot may, if the owner thereof should think proper, in preparing the foundation for the house which he may afterwards resolve on erecting, to excavate the adjacent earth or to go below the foundation of the walls of the first building, admit of .this being done by ordinary care and caution, with the use of the common and ordinary means of accomplishing it. If the first builder, in the construction of his wall, use materials unfit for the purpose; or the materials, though suitable, are so unskilfully built in the wall, that, it cannot be preserved and supported by ordinary care and diligence, with the use of the usual and ordinary means resorted to in practice for that purpose, when the second builder comes to dig out the foundation for his house, but notwithstanding the use of such care, diligence, and means by the latter *516to prevent it, the wall gives way, and with it a part or the whole of the first building falls, occasioning small or great loss to the owner thereof, it must be regarded as damnum sine injuria, f-or which the second builder is in nowise responsible.” Richart v. Scott, 7 Watts (Pa.) 460. And with equal force and philosophical reasoning, it may be said, that though the original wall was properly constructed, yet if, by reason of age, decay, or the natural results of the-elements thereon, it is rendered unsafe and dangerous by the removal of the lateral support, it is no less the duty of the owner or occupant to use all reasonable and necessary measures to protect it from falling.
From finding eight I quote the following: “Marshall’s foundation wall was 21 or 22 inches thick, and 6 feet 6 inches deep, composed of rock laid in mortar. Many of the stones were small, and of irregular and improper shape to make a strong and durable wall, and especially so as to make those stones in the north side of said wall abutting appellant’s soil. There were no bond stones, or if any, very few, reaching through the entire thickness of said wall. Some of the stones in the north side of said wall were put in edgeways so as to be of little help in giving strength to said wall. Said wall was put in about 25 years ago. The mortar used, if ever good, had, by reason of age and dampness, lost most of its cohesive strength, so that it served but little purpose in supporting and giving strength to said wall.”
In finding number twelve it is found “that had said wall been well constructed and of the strength of foundation walls usually placed to support the kind of buildings erected thereon, then the water flowing in, upon and around the same as hereinbefore found, would not have affected or injured it so as to cause if to give way and fall.”
*517In finding eleven it is stated that said wall, with the lateral support of appellant’s soil, was reasonably safe, but that without such lateral support, and with appellant’s soil removed, the wall was insufficient, and liable and likely to fall'from any slight cause that might be reasonably expected to occur at any time; that the wall did remain intact for two or three hours after the removal of the lateral support; that neither appellee, appellant, nor Marshall, before the removal of the soil, had any knowledge of the formation and character of the wall, and that neither of them had any notice or fear or expectation that said wall or building would fall on account of the removal of the lateral support, except that Matthias X. Dienhart, appellee’s president, had been warned by a bystander that said wall would give way and fall.
It will be observed by these findings that the wall was not strong and durable, both by its inherent construction, and by reason of its age and the rotten condition of the mortar, which had lost the most of its cohesive strength; that, with the lateral support of appellant’s soil removed, it was “liable and likely” to fall from any slight cause that might' reasonably be expected to occur at any time; and that appellee, through its president, was duly warned of the impending danger.
Suppose that, after the lateral support of appellant’s soil had been removed, a wind had blown against the building sufficient to jar or shake it, and by reason thereof, the wall had given way; or that from some other “slight cause,” other than the cause ch.arged in the complaint, it had fallen; would it be contended for a moment that appellant would have been liable? I think not. I am unable to see how we can reconcile the unsafe condition of this foundation wall with appellee’s right of recovery, as held by *518■ the majority of the court, in the light of the authorities. So to hold would be to run counter to the doctrine declared in Richart v. Scott, supra, which, in my judgment, correctly holds that the owner of real estate who first constructs a foundation wall on the extreme limit of his premises, must so construct it, that the adjacent lot owner, may, at his pleasure, remove the lateral support of his soil without being liable to respond in damages for so doing. In other words, the wall first constructed must be so securely built, as to support itself and the building erected thereon, regardless, of the lateral support of the adjacent soil, and if not so built, its owner, or occupant, must make it secure when such lateral support is removed, or suffer the consequences of his neglect. In this case appellee stood in the place of Marshall. It had notice ■that the excavation was being made; it was present, by its officers, as the work progressed; it was, at least, charged with knowledge of the condition of the wall; it was'in fact warned of the danger; it knew the manner in which the bricks were piled in the street; it had knowledge of the character of the soil, gravel, and sand, at the sides upon-which the wall rested; it knew that at one point on the line of the wall the soil or gravel had been removed two or three inches below the bottom of it; they were bound to know that the wall was “likely and liable to fall from any slight cause that might reasonably be expected to occur at any time;” and yet, with all this knowledge, it took no precautionary or necessary measures to protect itself from the impending danger, nor did it notify its landlord thereof.'
The court found every fact in favor of appellant, except the fact of piling the bricks in the street, which the majority of the court has held actionable negligence on his part. To this doctrine I cannot sub*519scribe. The court found that the work of excavation was carefully and properly made; that Martin, the contractor, was an experienced workman, and that he and his employes were careful in doing the work; and that they did not remove or strike or disturb any of the stones in the wall, and did not dig under said foundation in any place. In other words, it is found that all that Martin did was to remove appellant’s soil to the boundary of his lot, which he had a right to have done, and which was done in a prudent and careful manner. The Marshall wall was not in any way weakened and injured, except by the removal of the lateral support of appellant’s soil, which he had both a natural and legal right to have done.
Under all these facts, I hold, with the great weight of the authorities, as I believe, that it was appellee’s duty to protect itself from the natural results of such removal, by shoring, propping, bracing, or by some means that would give to the wall an equal support to that of appellant’s soil before it was removed. Block v. Haseltine, supra; Charless v. Rankin, supra; Panton v. Holland, supra; Lasala v. Holbrook, supra; Aston v. Nolan, supra. Its failure to do this was, in my judgment, such contributory negligence as should preclude its recovery. To hold otherwise is to antagonize the great weight of the authorities, both in England and in the United States. The burden of proof was on the appellee to establish, not only the negligence of appellant, but its freedom from fault as well. Under the facts found, it was undoubtedly, in my opinion, guilty of contributory negligence, in that it failed to act in the face of danger to protect it from the fall of the building which in the language of the finding “was liable and likely * * * from any slight -cause that might reasonably be expected to occur at any time.” , -
*520With great respect for the opinion of the majority of my associates, in holding that the judgment should be affirmed, I am constrained to hold to the contrary, for three reasons: (1) Because the injury complained of resulted from the acts of an independent contractor; (2) because the unauthorized depth of the excavation .of the cellar was the proximate and immediate cause of the injury from water, and not the obstruction of the gutter by piling bricks therein, as held and so ably and fully discussed by Henley, J., in his dissenting opinion; and (3) because of contributory negligence on the part of appellee.