
    Panton against Holland.
    Where plaintiff, i the special defendant, coning, to injure up the soil of a ⅛ foundation house injured, evidence on were the part of the defendant, will supportthe dec-the of iaration; ,⅞⅞110”being immaterial; as ouTaaSbsurpiuí a^e, and there good'cause*of action.
    A person on building’ a house contiguous, and adjoining to the house of another, may lawfully sink the foundation of his house below the foundation of his neighbor, and is not liable for any consequential damage, provided he has used due care and diligence to prevent any injury to the house of the other.
    THIS was an action on the case. The declaration stated that the plaintiff was lawfully possessed of -a certain messuage, or dwelling-house, in the city of New-YorJc; yet that the defendant, well knowing the premises, but contriving, and rna-liciously intending, to injure and aggrieve the plaintiff, and to deprive him of the use, benefit, and advantage of his said messuage, dug up the soil and earth of a certain lot of ground contiguous, and adjoining to the plaintiff’s messuage, close to the said messuage, and threw and carried away the soil and earth coming thereout, in so much, that by the digging, throwing, and carrying away, the earth and soil thereout coming, the foundation walls of the plaintiff’s messuage, and a great part of the plaintiff’s messuage, then and there foundered and fell down, and the residue was greatly broken, ^shattered, and spoiled. The defendant pleaded not guilty. The cause was tried before the late chief justice, at the New-York sittings, in November, 1818.
    The plaintiff was the owner of a house and lot in Warren street, in the city of New-York, and the defendant, in erecting a house on a lot contiguous to the plaintiff’s, in order to lay the foundation, dug some distance below the foundation of the plaintiffs house, in consequence of which, one of the corners of the plaintiff’s house settled, the walls were cracked, and the house, in other respects, injured. Evidence was produced, J on the part of the plaintiff, to show a want of proper care ami skill in the persons employed by the defendant to lay his. foundation. When the plaintiff had rested his cause, the defendant’s counsel moved for a nonsuit, on the ground that the declaration being for the malfeasance, and not the misfeasance of the defendant, the question of negligence, or unskil-fulness, could not arise: and that, inasmuch as it appeared from the plaintiff’s own showing, that the defendant had dug on his own land, for the purpose of erecting a house, which was an act lawful in itself, the right to recover was not made out. The motion, however, was refused. A number of witnesses were then produced on the part of the defendant, to prove that a due degree of -care and diligence had been employed in laying his foundation, for the purpose of preventing any damage to the plaintiffs house.
    The chief justice charged the jury, that there was no doubt but that the defendant, in building his house, had occasioned a damage to the plaintiff’s, and the only question for them to decide, was the amount of the damage ; that, in his opinion, they ought to give the difference in value between what the house would have sold for before, and after, the injury, and not merely the expense of repairs, as the injury was permanent, and could not be effectually repaired; that the plaintiff had first built his house, and, as the testimony showed, had built a good house, with a good foundation, and if the defendant, in building his house, thought proper to sink his foundation below that of the plaintiff, he must take care, in so doing, not to injure the plaintiff’s house, otherwise he would be liable for any damage; and that there #was good reason to conclude, from the evidence, that the defendant was guilty of negligence in not taking all the precautions which might have been taken, to prevent the injury. The jury found a verdict for the plaintiff, for 1,200 dollars damages.
    Á motion was made to set aside the verdict, and for a,new trial.
    M'Coun, for the defendant.
    1. The evidence did not support the declaration, which is not founded on negligence or misfeasance, but a malfeasance. The plaintiff avers, that the defendant maliciously dug up the soil, A c. The plaintiff was bound to prove express malice, or that the act was unlawful, from which malice might be inferred. The evidence shows only, that a lawful act has been done, which, in its consequences, has produced damage to the plaintiff. (Hullman v. Bennett, 5 E<p. N. P. Cases] 226. 6 Term Rep. 411. 7 East, 36A 2 H. B!. 267. 299. 3 Wils. 461.)
    2. But we contend, that the defendant is not liable at all, for the injury alleged to be sustained by the plaintiff. The defendant had a right to lay such a foundation for his house, and to erect it, in such manner as he thought proper, on his own ground. The plaintiff, who built his house three years before, exercised the same right. The mere prior occupation of his ground, by the plaintiff, cannot exclude the defendant from the exercise of his right to use his own property. (Platt v. Johnson, 15 Johns. Rep. 213.) The plaintiff ought to have foreseen the natural and proper use which the defendant would make of the adjoining lot, and have laid his foundation accordingly. Since the commencement of this suit, the legislature have passed an act (April 10th, 1818, 41st sess. ch. 106.) relative to the foundations of buildings in the city of Neio-York, which requires the foundation of buildings erected after the first of May, to be six feet, at least, below the level of the street in front. The plaintiffs foundation is only three feet and a half. The maxim sic utere tm, ut alienum non Iced as, does not apply so as to prevent the owner of a lot of ground contiguous to another, from using his ground to the best advantage. Again ; no action lies in a case like the present. It has been long a decided #prineiple of the common law, that if a man builds a house, and makes a cellar upon his soil, whereby a house newly erected in adjoining soil falls down, no action lies. (2 Rolle's Abr. 565.1.5. 1 Sid. 167. 1 Comyn’s Dig. 305. Action on the case for a nuisance, (C.) 1 Lev. 122.) In Thurston v. Hancock, (12 Mass. Rep. 220.) the Supreme Court of Massachusetts decided this very question, on the authority of the cases in Rolle, and Side rjin.
    
    3. Even if the defendant was liable to an action, it could only be on the ground of negligence, or unskilful management ; he is not liable at all events. ( Clark v. Foot, 8 Johns. Rep. 421.) The jury were, therefore, misdirected as to the law.
    4. But if the question of negligence, or not, had been left to the jury, the evidence would not have supported the verdict.
    
      Slosson, contra.
    Before the act of April 10, 1818, there was no statutory regulation on this subject. This case must, therefore, be decided on the principles of the common law.
    1. As to the objection to the declaration; the allegation is not that the act, was done maliciously. The malicious intention is matter of form merely, thrown in to justify the claim for greater damages. “ If a malicious or wrongful intent be unnecessarily stated, it need not be proved.” (1 Chitty’s PL 378.) In Williamson v. Allison, (2 East’s Rep. 452.) Lawrence, says, “ With respect to what averments are necessary to be proved, I take the rule to be, that if the whole averment may be struck out, without destroying the plaintiffs right of action, it is not necessary to prove it.” (King v. Phillips, 6 East’s Rep. 473.) If digging away the ground, so as to injure the plaintiffs house, without a malicious intent, will support the action, then the malicious intent need not be proved, but may be rejected as surplusage. (Bayard v. Malcom, 1 Johns. 469.)
    2. It is a well settled principle, that a man must so make use h*8 own property, as not to injure his neighbor: sic utere tuo, ut alienum non Icenlas. (Tenant v. Goldwin, 6 Mod. 311—314.) A lawful act, or the exercise of a legal right, may be proper and harmless, or improper and injurious, according *to circumstances. The party who complains of injury must not, himself, have been in fault. The case of Thurston v. Hancock, from Massachusetts, went on the principle that the plaintiff, having ample room for placing his house, yet erected it so near his neighbor’s land, that it must necessarily be injured, if his neighbor exercised his right to use his own property. The court say, that the plaintiff well knew the nature of the ground, and that it was impossible to dig there without causing damage; and that he built at his peril. In Clark v. Foot, setting fire to the plaintiffs own fallow ground, was not such an act as must necessarily prove injurious to his neighbor. Where a man shot a gun at a fowl near the door of his own house, by which he set fire to his own house, and that of his neighbor, he was held answerable in an action on the case, at the suit of his neighbor, though it was a mere misadventure. (Cro. Eliz. 10. Anon.) In Smith v. Martin, (2 Saund. 397.) which is the precedent from which the declaration in this case was drawn, there was a judgment for the plaintiff in the county palatine of Chester, which, on error, was affirmed in the court of K. B. In the case of Sir John Slingshy v. Barnard (1 Roll. Rep. 430.) there was no allegation of negligence on the part of the defendant, in digging his cellar so near the foundation of the plaintiffs house that it fell down, yet the action was sustained; for the act itself was necessarily attended with injurious consequences. If the act of the defendant is lawful, the plaintiff should allege that it was done negligently: otherwise, if the act is unlawful. Hi the case cited from 2 Roll. Ahr. 565, Rolle adds, “ But it seems that a man who has land next adjoining my land, cannot dig his land so near my land, as to cause my land to fall into his pit,; and, therefore, if an action should be brought for this, it will lie.” On what principle would such an action lie, unless because the act done was such as would, probably, or necessarily, prove injurious to another. The Supreme Court of Massachusetts appear to have misapprehended the principle on which this action is founded. They admit that an action will lie for the loss of soil, but not for damage caused to the plaintiffs house. “ A man,” says Ch. J. Barker, “ in digging upon his own land, is to have regard to the position of his neighbor’s land, and #the probable consequences to his neighbor, if he digs too near his line; and if he disturbs the natural state of the soil, he shall answer in damages ; but he is answerable only for the natural and necessary consequences of his act, and not for the value of a house put upon, or near, the line, by his neighbor; for, in so placing the house, the neighbor was in fault, and ought to have taken better, care of his interest.” They seem, also, to have proceeded on some notion of a prescriptive, or exclusive right, and cite the case of Palmer v. Fleshees, (1 Sid, 167.) which was an action on the case for stopping lights. But an action for loss of soil is not founded on any prescriptive right. There was no direct or immediate injury in the case of Thurston v. Hancock. The plaintiff might have prevented all damage, by erecting a wall to keep up his ground. The local circumstances were very different from the present case. Almost all the building lots in this city are only 25 feet wide ; and every owner who erects a house must necessarily occupy the whole width of his lot. It cannot be said to be an act of folly to build so near his neighbor’s lot; he must bujld, if at all, directly on the line; and digging a cellar in the adjoining lot necessarily endangers the house already erected, unless great care is used. If a man has a fancy for some new plan, or to erect a house with a greater number of stories, and for that purpose digs a foundation so deep as to undermine his neighbor’s house, he ought to be answerable for the damage. The legislature must have so understood the law, when they declare, in the second section of the act which has been cited, that where the foundations of buildings, in the city of Nmv-York, at the 1st of May, 1818, are not laid in conformity to the act, the owner “ shall be barred from the recovery of any damages such building may hereafter sustain, by erecting any building or foundation adjoining thereto, in pursuance of the provisions of the act: Provided, that ordinary care be taken in erecting such buildings, or in laying such foundations.” This is a strong expression of the legislative sense of the doctrine of the common law, which, we contend, supports this action. All the precedents to be found in these cases are conformable to the one in Saunders, and no doubt is suggested but that such an action well lies.
   *Woodwokth, I.,

delivered the opinion of the court. The plaintiff alleges, in his declaration, that the defendant, “maliciously intending to injure the plaintiff, and to deprive him of the use and advantage of his messuage, dug up the soil of a certain lot contiguous, whereby the foundation walls were subverted, and a great part of the messuage foundered and fell, and the residue wars greatly broken and shattered.”

At the trial, the defendant moved for a nonsuit, on the ground that, the declaration being founded on the malfeasance, and not the misfeasance, of the defendant, the question of negligence or unskilfulness could not arise; that the declaration was not supported by the evidence, inasmuch as it appeared that the defendant dug on his own ground, which was lawful in itself and it did not appear that the act was done maliciously. The motion for a nonsuit was properly denied.

If the plaintiff’ had stated, in his declaration, that the act was done maliciously, further proof would have been necessary. It would then be a case of malfeasance, an inquiry distinct in its nature from a case where damages are claimed, either on the ground of negligence or unskilfulness, or that the act complained of does, of itself subject the party to damages, although done with the greatest care.

In the exercise of a lawful right, a party may become liable to an action, where it appears that the act was done maliciously.

Suppose Holland had declared, that he would exercise his right of digging on his own ground contiguous to the plaintiff’s wall, not to benefit himself, but for the sole purpose of injuring the plaintiff; and digs, accordingly, below the plaintiffs foundation, but takes care that there be no ground for the charge of negligence or unskilfulness in the exercise of his right: considering himself safely intrenched within the protection of the law, he desists from further operations; his object is accomplished, the adjoining foundation is loosened, and the building materially injured : is there a question, that, in such a case, the party injured would be entitled to recover damages ? The gravamen would, in the case put, arise from the fact, that the act was done maliciously, and testimony falling short of proving that it was so done, *would be insufficient to maintain the action, although it might show a just claim to damages, had the count been differently drawn. In my opinion, the plaintiffs case is not of this character. The allegation, “ maliciously intending,” I do not consider of the essence of the action, or descriptive of the manner of doing the act which occasioned the injury, and it may well be rejected as surplusage, still leaving a good declaration, to support which the proof was competent. In the case of Williamson v. Allanson, (2 East, 452.) Lawrence, J., says, “ with respect to what averments are necessary to be proved, I take the rule to be, that if the whole of an averment may be struck out without destroying the plaintiffs right of action, it is not necefsary to prove it; but otherwise, if the whole cannot be struck out, without getting rid of a part essential to the cause of action; for then, though the averment be more particular than it need have been, the whole must be proved, or the plaintiff cannot recover.” Now, apply this doctrine : if this averment be stricken out, still the declaration is good, and may be supported by proof of negligence or unskilfulness in the manner of doing the act. The plaintiff may declare, as in this case, or according to the precedents ⅛ 6 Term Rep. 411, 7 East, 368, and Hen. Bl. 267, that the injury was done by reason of negligence.

The next and important question is, whether the defendant is liable, on the ease made out at the trial, to damages for the injury to the plaintiffs house: “sic utere tuo, ut alientan non Icedas,” is a maxim admitted to be correct; the extent of its application is to be considered. The plaintiff insists, that, without reference to the question of negligence, the defendant is answerable for the damages. On reviewing the cases, I am of opinion that no man is answerable in damages for the reasonable exercise of a right, when it is accompanied by a cautious regard for the rights of others, when there is no just ground for the charge of negligence or unskilfulness, and when the act is not done maliciously.

Platt v. Johnson and Root, (15 Johns. Rep. 213.) is a case analogous in principle to the present action. It is there decided, that a person erecting a mill and dam upon a stream of water running through his own land, does not, by *the mere prior occupation, gain an exclusive right, and cannot maintain an action against a person erecting a mill and dam above his, by which the water is in part diverted, and he is in some degree injured.

The court say, that the maxim, before stated, “ must be taken and construed with an eye to the natural rights of all. Although some conflict may be produced in the use and enjoyment of such rights, it cannot be considered, in judgment of law, an infringement of the right. If it becomes less useful to the one, in consequence of the enjoyment by another, it is by accident, and because it is dependent on the exercise of the equal rights of others.”

Baron Corny ns lays down the rule generally, that an action on the case does not lie for a reasonable use of one’s right, though it be to the annoyance of another, and he puts the case : “ If a man build a house, and make cellars upon his soil, whereby a house newly built in an adjoining soil falls down.” He refers to 2 Roll. Ab. 565. and 1 Sid. 167. which fully support the doctrine.

In 8 Johns. Rep. 421. (Clarice v. Foot) the court have decided, that if a man sets fire to his own fallow ground, as he may lawfully do, which communicates to, and fires the woodland of his neighbor, no action lies, unless there was some negligence or misconduct in him or his servants.

All these cases go on the ground, that a possible damage to another, in the cautious and prudent exercise of a lawful right, is not to be regarded, and if a loss is the consequence, it is “ damnum absque injuria

The case of Thurston v. Hancock and others, (12 Mass. Rep. 220.) is in point: in that case the plaintiff built a house on his own land, within two feet of the boundary line, and, ten years after, the owner of the adjoining land dug so deep into his own land as to endanger the house; and the owner of the house, on that account, left it, and took it down ; it was holden, that no action lay for the owner of the house, because the defendants having the entire dominion, not only of the soil but of the space above and below the surface, could not be restrained in the exercise of their right, unless by covenant, or ky custom ; that the house in question had not the qualities of an ancient building, so that the plaintiff *could prescribe for privilege of which he had been deprived ; and that a man who builds a house adjoining his neighbor’s land ought to foresee the probable use by his neighbor of the adjoining land.

The case from Roll. Rep. 430, cited by the plaintiff’s counsel, is the only one I have met with which goes the length of supporting this action.

No objection appears to have been taken in that case to the right of action, but only to the form of the declaration ; neither does it appear whether the defendant confined himself, in digging, to his own land. Chief Justice Parker says, it seems impossible to maintain that case upon the facts made to appear, without denying principles which seem to have been deliberately laid down in other books equally respectable as authorities.”

The result of my opinion is, that the plaintiff has not shown a right to recover damages in this case, unless it be on the ground of negligence, in not taking all reasonable care to prevent the injury. That is a question of fact which has not been submitted to the jury. They were directed to find a verdict for the plaintiff, for the difference in value of the house before the injury, and afterwards. The charge was incorrect: a new trial must, therefore, be granted, with costs to abide the event of the suit.

New trial awarded.  