
    Sophia Booth, Resp’t, v. The Rome, Watertown & Ogdensburg Terminal Railroad Co., App’lt.
    
      (Court of Appeals,
    
    
      Filed December 5, 1893.)
    
    Nuisance—Blasting—Charge.
    Defendant, in order to comply with conditions imposed by the city autliorities, was obliged to depress its roadbed at a point adjoining plaintiff’s premises, and iiidoing so it was necessary to blast to remove rock. ¡No rock was thrown upon plaintiff’s premises, but her house was injured by the jarring oí the ground or concussion of the atmosphere, or both. It was conceded that defendant used due care in the work. Held, that the use of the explosives did not, under the circumstances, constitute a private nuisance, and that it was error to charge that defendant in using them did so at its peril and was liable for any injuries done to plaintiff’s house, and “ that it made no difference whether the work was done carefully or negligently.”
    Appeal from a judgment of the general term of the fifth department, affirming a judgment on verdict for the plaintiff. The principal facts upon which the question presented, arises are as follows:
    The defendant is a railroad corporation organized under the general railroad law of this state. In 1887 it owned a lot in the city of Bochester, extending from the west side of St. Paul street to the Genesee river, adjacent to a lot owned by the plaintiff on the south, purchased by her in 1885, on which was a dwelling occupied by her, fronting on St. Paul street, the north side of which was about six feet south of the north line of her lot. The defendant projected an extension of its road from a point east of St. Paul street to the Genesee river and thence across the river by a bridge. It obtained the consent of the tiiunicipal authorities to cross St. Paul street by a tunnel or cutting, and proceeded to extend its road across the street to the river. Its line crossed St. Paul'street from a point on the east side of the street, opposite the lot of the defendant, striking the center of the defendant’s lot on the west side, and thence ran longitudinally through the lot to the bank of the river.
    It became necessary, in order to comply with the conditions imposed by the city authorities, that the defendant’s roadbed atibe crossing should be depressed fifteen feet or more below the surface of the street. The excavation required for this purpose involved also the necessity of continuing the cutting through the lot of the defendant so as to procure a uniform grade. The soil extended about ten feet below the surface, and underlying that was rock, which it became necessary to remove to the depth of about four feet. It was loosened by blasting with gunpowder. It was claimed by the plaintiff, and evidence was given tending to show, that in consequence of the blasting the plaintiff’s house was seriously injured ; that the foundations were cracked, the beams and joists pulled apart, the plaster loosened, and that generally the house was wrenched and rendered insecure. It is not claimed that any rock or materials were thrown by the blasts upon the plaintiff’s lot. In what particular way the injury was produced was not shown. It may be inferred that it was caused by the jarring of the ground or the concussion of the atmosphere created by the explosions, or by both causes combined. It was, however, affirmatively proven, without contradiction, that there was no disturbance of the earth on the sides of the excavation, and that gas and water-pipes in the street, exposed by the excavation, were not displaced or injured.
    
      It was substantially conceded that the defendant exercised due care in conducting the blasting, and that it was necessary in order to remove the rock. There was evidence tending to show that the persons engaged in the work were informed from time to time during its progress that injury was being done to the plaintiff’s house. The trial judge instructed the jury that the defendant in using powerful explosives in blasting the rock used them at its peril,, and that if the plaintiff’s house was injured thereby the defendant-was liable for the damages occasioned, and “ that it made no-difference whether the work was done carefully or negligently.” Exception was taken by the defendant to this-instruction. The jury found that the damage to the house from the blasting was _ $1,750, and this sum was included in the verdict.
    The court overruled the contention of the defendant that in-constructing its road it was acting under legislative authority, and was on that ground, in the absence of negligence, exempted from liability, even although as between individuals an action might be maintained.
    Other facts are stated in the opinion.
    
      P. M. French, for app'lt; David Hays, for resp’t.
   Andrews, Ch. J.

We entertain no doubt of the correctness of the ruling at the circuit that the defendant stands in no better position in defending the action than if the controversy was between individuals.

The rule that the legislature may, in the public interest and for public purposes, authorize and legalize acts causing consequential injury to private property, not amounting to a taking, without •providing compensation, and that the legislative authority may be pleaded in bar of any claim for indemnity, although if .the act had been done without such authority an action would lie, has no apt plication.to acts of a railroad or other private corporation in the execution of chartered or statutory powers.. The rule adverted to, although operating in some cases with great severity, which compels an individual to bear a special loss for the benefit of the community at large, in place of distributing the burden, is an application of the maxim salus populi est suprema lex, and rests upon the transcendent power. of the legislature, without constitutional limitations, to enact whatever it may deem essential to the public welfare. But while there are decisions which give countenance to the view, that an authority conferred upon a railroad corporation to construct a railroad carries with it immunity from liability in executing the work for consequential damage to private property to the same extent as pertains to the sovereign in executing public works, Bellinger v. N. Y. C. R. R. Co., 23 N. Y., 42, it is now the settled doctrine in this state that the powers granted to such corporations are to be construed as privileges conferred, but upon the understanding that they shall be exercised in strict conformity to private rights and under the same responsibility as though the acts done in execution of such powers were done by an individual. Cogswell v. N.Y., N. H. & H. R. R. Co., 103 N.Y., 10; 3 St. Rep., 56. This doctrine accords with reason and with the presumed intention of the legislature. The franchises of a railroad corporation are conferred in consideration of supposed public benefits which will result from the construction of its road. The projectors of such an enterprise are moved by considerations of personal advantage. To acquire corporate character and privilege they are willing to subject themselves to certain public duties. But it is quite unreasonable that in executing its corporate powers the corporation should be exempted from liability for injuries to private property, as though it was acting as a strictly public agent. There may'be limited exceptions, as in cases of highway crossings, where an adjustment of the grade becomes necessary, working a consequential injury to adjacent landowners which is remediless, and the legislative authority will also bar any remedy for certain discomforts consequent upon the necessary operation of the road, such as noise and smoke of passing trains.

We, therefore, agree with the courts below that the right of the plaintiff to recover in this case, and the liability of the defendant, depends upon the same rule as would govern the parties if both were natural persons, and the injury to the plaintiff’s dwelling had resulted from blasting by an adjacent owner on his land in the course of adapting it to individual uses.

The plaintiff, upon the findings of the jury, sustained a serious injury. It is true that witnesses on the part of the defendant-gave evidence tending to show that the house was imperfectly-constructed, and that the foundation walls were giving way before the excavation was commenced. But the verdict having been affirmed by the general term, there can be no controversy here that the blasting caused damage to the house tó the amount o| the verdict. But mere proof that the house was damaged by the blasting would not alone sustain the action. It must further appear that the defendant in using explosives violated a duty owing by him to the plaintiff in respect of her property, or failed to exercise due care.

Wrong and damage must concur to create a cause of action. If the injury was occasioned by the omission to use due care, this alone would sustain the action, even if the right of the defendant to use explosives in removing the rock was conceded.

If one by carelessness in making an excavation on his own land causes injury to an adjoining building, even where the owner of the house has no easement of support, he will be liable. Leader v. Moxon, 3 Wils., 460; Lawrence v. Great Northern R. Co., 16 Ad. & El., N. S., 643-653 ; Leake’s Law of Real Prop., 248. The law exacts from a person who undertakes to do even a lawful act on his own-premises, which may produce injury to his neighbor, the exercise of a degree of care measured by the danger to prevent or mitigate the injury. The defendant could not conduct the operation of blasting on its own premises, from which injury might be apprehended to the property of his neighbor, without the most cautious regard for his neighbor’s rights. This would be reasonable care only under the circumstances. If it was practicable in a business sense for the defend■ant to have removed the rock without blasting, although at a somewhat increased cost, the defendant would, we think, in view of the situation, and especially after having been informed of the injury that was being done, have been bound to resort to some other method. There is evidence that rock from some parts oí the excavation was loosened by the use of iron bars, and if this was practicable as to all of it the jury might well have found that this means should have been adopted. So, also, if less powerful blasts might have been used, which, if used, would not have occasioned injury, or would have lessened it, the omission to use them might well be considered as negligence. The mode of exercising a legal right, where there is a choice of means, may of itself give a cause of action. The plaintiff, however, on this record is precluded from claiming that the judgment may be sustained because of negligence in the mode of blasting. It must be assumed from concessions made on the trial and from the rule of law laid down by the court, that blasting was the only mode of removing the rock practically available ; that it was conducted with due care, and that it was necessary to enable the defendant •to conform the roadbed to the established grade. This is a case, therefore, of unavoidable injury to the plaintiff’s house, occasioned by the act of the defendant in blasting on his own premises, in order to adapt them to a lawful use, the mode adopted being the only practicable one and the work having been prosecuted with due care and without negligence. The question is, whether the act of the defendant, connected with the resulting injury, was a legal wrong for which the plaintiff has a right of action.

The general rule that no one has absolute freedom in the use of his property, but is restrained by the co-existence of equal rights in his neighbor to the use of his property, so that each in exercising his right must do no act which causes injury to his neighbor, is so well understood, is so universally recognized, and stands so impregnably in the necessities of the social state, that its vindication by argument would be superfluous. The maxim which embodies it is sometimes loosely interpreted as forbidding all use by one of his own property which annoys or disturbs his neighbor in the enjoyment of his property. The real meaning of the rule is that one may not use his own property to the injury of any legal right of another. The cases are numerous where the lawful use of one’s property causes injury to adjacent property for which there is no remedy, because no right of the adjacent owner is invaded, although he suffers injury. The cases of excavation furnish a striking illustration.

The easement of natural support of the land of one by the land of the adjacent owner applies only to lands in their natural condition, and does not extend so as to give the owner of a building erected on the confines of his land the right to have it supported laterally by the land of his neighbor; and so it has become the settled doctrine of the law that if one by excavating on his own land adjacent to the land of his neighbor, using due care, causes a building on his neighbor’s land to topple over, there is no remedy, provided the weight of the building caused the land on which it stood to give way. There is in the case supposed injury, but no wrong, because what was done by the adjacent owner was in the lawful and permitted use of his own property. Wyatt v. Harrison, 3 B. & Ad., 871; Partridge v. Scott, 3 M. & W., 220 ; Lasala v. Holbrook, 4 Paige, 170; Thurston v. Hancock, 12 Mass., 220.

The fundamental proposition upon which the plaintiff’s counsel rests his argument in support of the recovery is, that the use of the explosives in blasting constituted, under the circumstances, a private nuisance, and that according to the general rule of law one who creates or maintains a nuisance is liable for any special injury to person or property resulting therefrom. The right of the defendant to excavate on its land for its roadbed is not challenged, but the right to use the destructive agency of gunpowder in the work of excavation, liable to produce injury, and which did occasion it, is denied. The exception is not to the thing done, but to the mode of doing it. It is to be observed, however, that under the concessions in the case, and the rulings on the trial, it must be assumed that the excavation could not have been done except by the use of explosives. This mode of doing the work was, therefore, of the substance of the right, if the right existed at all. It has been frequently said that the right of an owner of land to use his property as he likes does not justify the maintaining of a nuisance, or the commission of a trespass, and Blackstone, after stating that where one, by smelting works on his own land, causes noxious vapors, which injure the corn or grain on his neighbor’s land or damages his cattle, this would be a nuisance, proceeds to say, “that if you do any other act in itself lawful, which yet, being done in that place, necessarily tends to the damage of another’s property, it is a nuisance, for it is incumbent on him to find some other place to do that act where it will be less offensive.” 2 Black. Com., ch. 13, p. 218.

There are many illustrations in the books of the doctrine stated by the learned commentator, that the use or one’s own land for the purpose of a lawful trade may become a nuisance to his neighbor. But whether a particular act done upon, or a particular use of one’s own premises constitutes a violation of the obligations of vicinage would seem to depend upon the question whether such act or use was & reasonable exercise of the right of property, having regard to time, place and circumstances. It is not everything in the nature of a nuisance which is prohibited. There are many acts which the owner of land may lawfully do, although it brings annoyance, discomfort or injury to his neighbor, which are damnum, absque injuria. The case of the building caused to fall by an excavation in an adjoining lot, already referred to, is an illustration. The right of an owner of a mine to excavate the mineral in his mine, although by so doing it causes the water to collect therein and to be discharged into an adjacent mine on a lower level, thereby causing damage to the mine of such adjacent owner, is another illustration of a lawful use of property followed by damage to the property of another for which no action lies. Smith v. Kenrick, 7 C. B., 515; Baird v. Williamson, 15 C. B., N. S., 375; Wilson v. Waddell, 2 App. Cas., 95. In referring to these cases, in Hurdman v. North Eastern Railway Co., L. R., 3 C. P. Div., 168, the court said: “The owner of' lands holds his right to the enjoyment thereof subject to such annoyance as is the consequence of what is called the natural use by his neighbor of his land, and that, where an interference with his enjoyment by something in the nature of a nuisance is the cause of complaint, no action can be sustained if this is the result of a natural use by a neighbor of his land.”

Whether a particular act or thing constitutes a nuisance may depend on the circumstances and surroundings. The use of premises for mechanical or other purposes causing great noise, disturbing the peace and quiet of those living in the vicinity, and rendering life uncomfortable, or filling the air with noxious vapors, or causing vibration of the neighboring dwellings, constitute nuisances, and such use is not justified by the right of property. Fish v. Dodge, 4 Den., 311; McKeon v. See, 51 N. Y., 300. Cogswell v. R. R. Co., supra. These and like cases are those where the property of the owner is appropriated to a permanent use which is a constant and serious interference with the enjoyment by other property owners of their property. But there is a manifest distinction between acts and uses which are permanent and continuous and temporary acts which are resorted to in the course of adapting premises to some lawful use. For example, the erection of an iron building adjacent to a dwelling might, for the time being, cause as much noise and discomfort as would arise from conducting the business of finishing steam boilers on adjacent premises, but this would not constitute a nuisance, and the owner of the dwelling would have no remedy. The streets may be obstructed temporarily, subject to municipal regulations, for the deposit of building materials, and the party would not be chargeable with maintaining a nuisance. The test of the permissible use of one’s own land is not whether the use or the act causes injury to his neighbor’s property, or that the injury was the natural consequence, or that the act is in the nature of a nuisance, but the inquiry is, was the act or use a reasonable exercise of the dominion which the owner of property has by virtue of his ownership over his property, having regard to all interests affected, his own and those of his neighbors, and having in view also public policy.

The rule announced by the trial judge, that the use by an owner of property of explosives in excavating . his land is at his peril, and imposes liability for any injury caused thereby to adjacent property irrespective of negligence, is far reaching. It would constitute, if sustained, a serious restriction upon the use of property, and in many cases greatly impair its value. The situation in the city of New York furnishes an apt illustration. The rocky surface of the upper part of Manhattan Island makes blasting necessary in the work of excavation, and, unless permitted, the value of lots, especially for business uses, would be seriously affected. May the man who has first built a store or warehouse or dwelling ■on his lot and has blasted the rock for a basement or cellar, prevent his neighbor from doing the same thing when he comes to ■build on his lot adjoining, on the ground that by so doing his own structure will be injured? Such a rule would enable the first ■occupant to control the uses of the adjoining property, to the serious inj ury of the owner, and prevent, or tend to prevent, the improvement of property. The first occupant in building on his lot exercised an undoubted legal right. But his prior occupation ■deprived his neighbor of no legal right in his property. The first ■occupant acquires no right to exclude an adjoining proprietor from the free use of his land, nor to use his own land to the injury of his neighbor subsequently coming there. Platt v. Johnson, 15 Johns., 213; Thurston v. Hancock, supra; Tipping v. St. Helen's Smelting Co., L. R., 1 Ch., 66; Campbell v. Seaman, 63 N. Y., 568.

The fact of proximity imposes an obligation of care, so that one engaged in improving his own lot shall do no unnecessary damage to his neighbor’s dwelling, but .it cannot, we think, exclude the former from using the necessary and usual means to adapt his lot to any lawful use, although the means used may endanger the house of his neighbor.

We have found no case directly in point upon the interesting .and important practical question involved in this appeal.

It was held in the leading case of Hay v. Cohoes Co., 2 N. Y., 159, that the right of property did not justify the owner of land in committing a trespass on the land of his neighbor by castingrocks thereon in blasting for a canal on his own land for the use of his mill, although he exercised all due care in executing the work. In that case there was a physical invasion by the defendant of the land of the plaintiff. This the court held could not be justified by any consideration of convenience or necessity connected with the work in which the defendant was engaged. In the conflict of rights the court considered that public policy required that the right of the defendant to dig the canal on his own land must yield to the superior right of the plaintiff to be protected against an invasion of his possession by the act of the defendant. The case of Benner v. Atlantic Dredging Co., 134N. Y., 156 ; 45 St. Rep., 774, was the case of. an injury to the plaintiff’s house, resulting from the jarring caused by the blasting of rocks in Hell Gate, and it was held that the injury was remediless, for the reason that the defendant was acting under the authority of the government of the United States by virtue of a contract authorized by congress.

It has been held that the keeping of gunpowder in large quantities near inhabited dwellings is a nuisance, and in the case of explosion subjects the party keeping it to liability for damages occasioned thereby. Myers v. Malcolm, 6 Hill, 292; Heeg v. Licht, 80 N. Y., 579. So also it has been held that the working of quarries by the use of gunpowder, to the injury of property in the vicinity, gives a right of action. City of Tiffin v. McCormack, 34 Ohio St., 638; Scott v. Bay, 3 Md., 431. Many of the cases cited by the counsel are cases of the permanent appropriation of property ior damages or noxious uses causing damage. The distinction between such cases and those where the injury arises from acts done in the necessary adjustment of property for a lawful use by means necessary and not unusual, but involving damage to adjacent property, has been adverted to. We recognize the difficulty of formulating a general rule regulating the rights of adjacent landowners in the use of their property, and we realize how narrow the margin is which separates this from some decided cases. In Marvin v. Brewster Iron Co., 55 N. Y., 557, the opinion of the-learned judgé who wrote in that case sustains the conclusion we have reached in this case. But the point was not necessarily involved, since it was held that the defendant there had acquired by grant the right to employ blasting in removing the mineral, and-that the plaintiff, a subsequent grantee of the surface, could not complain of injury to his house therefrom in the absence of negligence on the part of the defendant in conducting the work. Judge Folger in that case said: “ Whatever it is necessary for him (defendant) to do for the profitable and beneficial enjoyment of his own possession, and which he may do with no ill effect to the adjacent surface in its natural state, that he may do though it harm erections lately put there.’ If the learned judge intended to lay down the rule that the owner of land may do anything on his own land which would do no injury to the adjacent property if it had remained in its natural state, the proposition is probably too broad. One may do in a barren waste many things which he could not lawfully do in or near an inhabited town.

But the defendant here was engaged in a lawful act. It was done on its own Iand.to fit it for a lawful business. It was not an act which, under all circumstances, would produce injury to his neighbor, as is shown by the fact that other buildings near by were not injured. The immediate act was confined to its own land, but the blasts, by setting the air in motion, or in some other-unexplained way, caused an injury to the plaintiff’s house. The lot of the defendant could not be used for its roadbed until it was excavated and graded. It was to be devoted to a common use; that is, to a business use. The blasting was necessary, was carefully done, and the injury was consequential. There was no technical trespass. . Under these circumstances, we think, the plaintiff has no legal ground of complaint. The protection of property is doubtless one of the great reasons for government. But it is equal protection to all which the law seeks to secure. The rule governing the rights of adjacent landowners in the use of their property seeks an adjustment of conflicting interests through a reconciliation by compromise, each surrendering something of his absolute freedom so that both may live. To exclude the defendant from blasting to adapt its lot to the contemplated uses, at the instance of the plaintiff, would not be a compromise between conflicting rights, but an extinguishment of the right of the one for the benefit of the other. This sacrifice, we think, the law does not exact. Public policy is sustained by the building up of towns and cities and the improvement of property. Any unnecessary restraint on freedom of action of a property owner hinders this. The law is interested also in the preservation o£ property and property rights from injury. Will it in this case protect the plaintiff’s house by depriving the defendant of his right to adapt his property to a lawful use, through means necessary, usual and generally harmless ? We think not.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

All concur. 
      
      Reversing 44 St. Rep., 9.
     