Sullivan

Defendant demurred to plaintiff’s complaint, the demurrer was sustained without leave to amend, judgment was thereupon entered for defendant, and plaintiff appeals therefrom.

The complaint alleges that plaintiff and defendant own adjoining lots in the city of San Francisco; that on plaintiff ’s lot there is a building, erected twenty years ago, along the line between the two lots; that defendant commenced an excavation on his lot for the purpose of building thereon, and excavated up to the line of and deeper than the foundation of plaintiff’s building, whereby it is left without the lateral and subjacent support to which it is entitled, etc., and prays judgment for damages and an injunction. The complaint also alleged that no “written notice” of defendant’s intention to excavate was given; but no question is made here as to the sufficiency of the notice.

There is no allegation in the complaint that defendant’s excavation was so made that plaintiff’s lot was left without sufficient lateral support if there had been no building thereon, but appellant relies solely upon the proposition that he has gained by prescription a right to the support of his building, whereby the duty is…