
    Fannie S. Wheeler, Respondent, v. William F. Norton and William Dalton, Appellants.
    
      Negligence and trespass — complaint alleging facts establishing both—injury to a water pipe from blasting for a subway, causing the flooding of plaintiff’s premises — the proximate cause is the one setting the other ca/ase in operation.
    
    Sub-contractors engaged in excavating the rapid transit subway in the city of. New York, who, in the process of blasting rock, break a.water main, the water from which fldws upon and injures adjoining property, are liable in trespass' to the owner of such property.
    Where it appears that the sub-contractors placed the dynamite with which the blasting was done within a foot of the water pipe, which was nearer than the rules of the department of water supply permitted, and that they neglected to turn off the water or to protect.the pipe in any way, although they had been previously warned of the danger of breaking the pipe, and that the rock could have been removed by other methods, which, if employed, would not have injured the pipe, liability on the part of the sub-contractors may be predicated on the ground of negligence.
    The fact that the water pipe was laid, in violation of the rules of the water department, upon, rock, and not upon soft material, does not excuse the subcontractors from liability, as the proximate cause of the breaking of the pipe was the blast and not the manner in which the pipe was laid.
    The proximate cause is the efficient cause, the one which necessarily sets the other cause in operation.
    Where the complaint in an action is so framed as to permit a recovery either upon the ground of trespass or negligence, and the trial is conducted on the theory that a recovery can be had on either ground, and judgment is rendered against the defendants without specifying the ground of liability, the fact that, the trial justice, as indicated in a memorandum made by him, held that the defendants were liable in trespass, does not prevent the Appellate Division from affirming the judgment on the ground that the defendants were guilty of negligence if the evidence is sufficient to sustain a finding to that effect."
    
      Appeal by the defendants, William F. Norton and another, from an order of the Appellate Term of the Supreme Court, first department, entered in the office of the clerk of said court on the 9th day of November, 1903, as resettled by an order entered in said clerk’s office on the 25th day of November, 1903, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff, entered in the office of the clerk of said Municipal Court on .the 9th day of March, 1903, and also (as stated in the notice of appeal) from a judgment entered in the office of the clerk of the said Municipal Court on the 14th day of November, 1903, upon said order of affirmance.
    
      L. Laflin Kellogg, for the appellants..
    
      Jacob Marks, for the respondent.
   McLaughlin, J.:

The defendants, the sub-contractors engaged in excavating for the rapid transit subway in the city of New York, on the 8th of August, 1901, by blasting rock, broke a twelve-inch water pipe from which water escaped, flowed onto premises occupied by the plaintiff, and injured her property, and this action was brought to recover the damages sustained. She had a judgment in the Municipal Court of the city of New York, which was affirmed by the Appellate Term, and defendants, by permission, have appealed' to this court.

The complaint is framed so as to permit a recovery either for trespass or negligence, which fact seems to have been entirely satisfactory to the defendants, inasmuch as so far as appears they made no effort either before or at the trial to compel the plaintiff to elect upon which ground she would claim a recovery, and the trial seems to have proceeded upon the theory that a recovery might be had upon either ground, as evidence was introduced which tended to establish both trespass and negligence.

The trial court, as appears from a memorandum of the trial justice, held the defendants liable as trespassers and this seems to have been the view of the Appellate Term on the reargument, although.on the first argument defendants were held liable as for negligence.

I think the defendants were liable as trespassers for the damage done to plaintiff’s property. It has been held by a long line of authorities in this State'that throwing rocks or debris upon another person’s property, thereby causing him damage, makes one .liable as a trespasser, and this irrespective of whether such person be guilty of negligence or not. I am unable to see any distinction between causing damage to property by water and causing it by rocks and debris. A leading case on the subject is Hay v. Cohoes Co. (2 N. Y. 159). There, defendant, in blasting upon its own land, threw .fragments of rock against-.plain tiff’s house which stood upon land adjoining. Ho proof of negligence in blasting, was established, but defendant was, nevertheless, held liable. , Gardiner, J., delivering the opinion (and his remarks are as applicable to the case before us as they were there), said: The defendants had the fight to dig the canal: The plaintiff, the right to the undisturbed possession of his property. If these rights conflict, the former must yield to the latter as the more important of the two, since, upon grounds of public policy, it is better that one man should surrender a particular use of .Ms land than that another should be deprived of the beneficial use of his property altogether, which might be the consequence if the privilege of the former should be wholly unrestricted. The case before us illustrates this principle.- For; if' the defendants in excavating their canal, in itself a lawful use of their land, could, in the manner mentioned by the witnesses, demolish the stoop of the plaintiff with impunity, they might for the same purpose, on the exercise of reasonable care, demolish his house aud thus deprive him of all Use of his property. * * * He may excavate a canal, but he cannot- cast the dirt or stones upon the land of his neighbor, either by" human agency or the force of gunpowder. If he . cannot construct- ' the work without the adoption of such means, he must abandon that mode of using- his property, or be held responsible for all damages resulting therefrom. He will not be permitted to accomplish a legal- object -in an unlawful manner.” ■

■ This casé was followed in Tremain v. Cohoes Co. (2 N. Y. 163),. cited with -approval in St. Peter v. Denison (58 id. 416), and in Mairs v. Manhattan Real Estate Association (89 id. 498). In the Mairs case defendant was held liable without proof of negligence for making an excavation upon its own land, through which, during a heavy rain, water found its way into the cellar of the adjoining owner — and this notwithstanding the fact the excavation was made, under a license from the municipal authorities. Judge Rapallo, delivering the opinion of the court, said: “ The rights of the parties in such a case do not depend upon the same principles as in cases where the wrong complained of consists of an interference with a public highway to the injury of the traveling public; • but upon the principle of Hay v. Cohoes Co. (2 N. Y. 159); St. Peter v. Denison (58 id. 416; 17 Am. Rep. 258); Jutte v. Hughes (67 N. Y. 267), in which it is held that where one is making improvements on his own premises, or without lawful right, trespasses upon or injures his neighbor’s property by casting material thereon, he is liable absolutely for the damage, irrespective of any question of care or negligence. A license from the municipal authorities cannot affect the question of responsibility in such cases.”

The Hay case was also cited with approval, and the doctrine there announced reaffirmed in the recent case of Sullivan v. Dunham, (161 N. Y. 290), Judge Vamn saying: “We think that the JThy case has always been recognized by this court as a sound and valuable authority. After standing for fifty years as the law of the State upon the subject, it should not be disturbed, and we have no inclination to disturb it. It rests upon the principle founded in' public policy that the safety of property generally is superior in right to a particular use of a single piece of property by its owner. It renders the en joyment of all property more secure by preventing such a use of one piece by one man as may injure all his neighbors.”

Here the act of the defendants broke the pipe which caused the water to flow upon plaintiff’s land and do her damage. Their act was the» direct and proximate cause of her injury, and they should make** good the same, whether their act was a negligent one or not. One: person cannot use his property to' the detriment of his neighbor without making good the loss sustained. Had the plaintiff’s property been injured by a piece of the pipe being thrown on her premises I do not believe, under the authorities cited, it could be seriously questioned but what the defendants would be liable as trespassers, and I am unable to see any distinction between iron thrown and water flowing thereon.

- If I am correct in this conclusion, then it necessarily follows that the judgment is right and must be affirmed, and this irrespective of whether the defendants were negligent in putting off the blast.

I am also of the opinion that the evidence was sufficient to justify a recovery upon, the ground of negligence. The complaint, as already indicated, was framed and the trial evidently' proceeded upon the theory that a recovery might be had upon this ground as well as trespass, and the fact that the trial justice, as indicated in his memorandum, held defendants liable for at trespass does not prevent an affirmance of the judgment on the ground of negligence, if the evidence is sufficient to sustain a finding to this-effect. The memorandum of the trial justice is no part of the judgment itself, nor does it exclude the idea that the judgment was not the result of, or based upon, a finding of negligence. The evidence is amply sufficient to sustain a finding of negligence. Bearing upon this question, it appeared that prior to the time the pipe was broken defendants drilled holes for the purpose of blasting within a foot or so of the place where the break subsequently occurred, which were nearer to the pipe than the rules of the department of water supply permitted; that a quantity of- dynamite was exploded in some or all of these holes without taking the precaution to turn off the water, which might have been done, or to protect the pipe in any way. Not only this, but it also appeared that the rock which was blasted could have been removed by wedging ” or by breaking it with a hammer, and if either method had been employed the pipe Would not have been broken, and that, the defendants’ foreman, prior to the accident, was told that he would “burst that pipe * * * if you are not careful,” to which he responded : I will take care of the pipe.” The Use of high explosives, under the circumstances here detailed, in such close proximity to a twelve-inch water main, through which the water was flowing, was a careless - act, and one which a careful and prudent person would not have done, -especially when the same result could have been accomplished without the use of such means. (Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267.)

But it is urged that if defendants were negligent they cannot be held liable1 for the damages sustained, inasmuch as their negligence was not the proximate cause of the damage. What is claimed in this respect is that the pipe was laid, in violation of the rules of the water department, upon rock and not upon soft material. As already said, the defendants put off the blast. This broke the pipe, and was the proximate cause of plaintiff’s- damage. (Laidlaw v. Sage, 158 N. Y. 73.) The proximate cause is the efficient cause, the one which necessarily sets the other cause in operation.

Upon both grounds, therefore, I think the determination is right and should be affirmed, with costs. The appeal from the judgment should be dismissed.

Yah Brunt, P. J., O’Brien and Hatch, JJ., concurred; Ingraham, J., concurred on last ground.

Judgment affirmed, with costs.  