(dissenting) : I concur in the law declared in the syllabus and the corresponding portion of the opinion, but dissent from the judgment of reversal. The law as declared limits plaintiff’s recovery to the damage he sustained in being deprived of access to, and egress from, his lots, and precludes a recovery for impairment to lateral support until the disturbance of the soil causes it to slip or slide. Until then he has sustained no actionable damage. In this I concur. And I maintaia that it is not for the adjoining lot-owner to question whether the excavation was rightful or wrongful, so long as there has been no trespassing upon his premises. Whether rightful or wrongful, he suffers no actionable damage until there has been a slipping or sliding of his soil into the excavation.
The case is in this court for review on the findings of the jury. To my mind, the finding of the jury, that *155plaintiff’s damage by reason of being cut off from access to, and egress from, his premises on account of defendant’s excavation in the alley was $200, should control. The judgment of the district court should be modified, and judgment for plaintiff ordered in the sum of $200. The judgment is reversed and a new trial ordered principally because, as stated in the opinion, the jury also found the difference in the value of the premises immediately before, and immediately after, the excavation to be $950. These two findings, in the opinion of the court, are inconsistent. In the opinion it is recognized that the question of damage to lateral support was not properly before the jury as an element of plaintiff’s recovery. It is also recognized and stated that "decrease in market value, occasioned by an injury apart from the loss of use of the alley, cannot be shown by bringing into the case an element of damage for which no action would lie.’’
The jury found there had been no slipping or falling of the earth from plaintiff’s lots into the excavation, and then found $750 as plaintiff’s damages for loss of lateral support of the lots. Since, under the law, this item of damage was not an element to be taken into consideration, as there had been no actionable damage to the lateral support, and since the question was not properly before the jury, this finding of damages should receive no consideration. The elimination of this element of damage from consideration will deduct $750 from $950, the amount found by the jury to be the difference in the market value of the premises immediately before and immediately after the excavation of the alley, and will leave $200, the amount the jury found plaintiff had been damaged in being cut off from the use of the alley. So, also, this finding of $750 deducted from the verdict of $950 will *156leave $200, the amount the jury found as plaintiff’s-damage for being cut off from the use of the alley. There is thus shown to be consistency in the findings, of the jury.
As has been observed, to eliminate any apparent inconsistency in the findings of the jury it is only necessary to eliminate from consideration the finding of damages for injury to lateral support, an element recognized as not having been properly submitted to the jury. This finding of $200 for injury to plaintiff' from being cut off from the use of the alley is the jury’s, measure of damages on the only element of damage properly submitted. This finding of the jury should stand, and should constitute the basis of plaintiff’s, judgment.