
    Humes and Williams vs. Mayor and Aldermen of Knoxville.
    Every proprietor of land, where not restrained by covenant or by custom, has the entire dominion of the soil and space above and below to any extent he may choose to occupy it; and in this occupation he may use his land according to his own judgment, without being answerable for the consequences to an adjoining owner, unless by such occupation he either intentionally or for want of seasonable care and diligence inflict upon him an inj ury.
    Where the agent of a corporation injures the real estate of an individual, by the authority of the corporation, such corporation is liable for such injuries as natural persons are; but where the Mayor and Aldermen of a town corporation procured a street to be excavated and graded, with a view to the improvement of the street, and in so doing did as little damage as possible, yet the property of certain individuals was injured thereby: Held, that the corporate authorities were not responsible for the consequences.
    William Williams and Thomas W. Humes instituted an action of trespass on the case in the circuit court of Knox county on the 30th day of May, 1838, against the Mayor and Aldermen of Knoxville. At the June term, 1838, the plaintiffs filed their declaration, in which they averred that they “at the time of the grievances afterwards mentioned were and still are the owners of a remaining interest in and to. a certain lot of ground, with a stable thereupon, situate and being in the towmof Knoxville, on Prince street in said city, south-west of the intersection of said street by Main street, -and known in the plan of said town as lot No. —, now in the possession and occupation of Janies Williams, tenant thereof to the said plaintiffs; yet the said plaintiffs, well knowing the premises, but contriving and unjustly intending to injure, prejudice and aggrieve the said plaintiffs in their reversionary interest and estate in the said premises, with the appurtenances, and while the said plaintiffs were so interested as aforesaid, to wit, on the 15th day of May, 1837, and on divers other days and times between that day and the commencement of this suit wrongfully and unjustly, and without leave of and against the will of said plaintiff, did cause the said Prince street, in front of and adjoining to said lot of ground, with the appurtenances thereon, as before described, to be dug down and moved away, so that thereby the foundations of said stable were greatly injured and impaired, and whereby the said plaintiffs were hindered from renting the same as profitably to themselves as they would otherwise have done,” &c. &c.
    The defendants pleaded: 1. Not guilty. Upon which plea issue was joined, 2. “That by the acts of the legislature of the State of Tennessee the town of Knoxville is an incorporated town, and that the said defendants, by virtue of the powers vested in them as the Mayor and Aldermen of the said town, have the right and power, and had at the time of the alleged grievances in the plaintiff’s declaration mentioned, to order and direct the improvements of the public streets in the town of Knoxville, and in virtue of their authority as Mayor and Aldermen and acting as such did cause the said street to be excavated, dug and graded, it being a public street in said town, in order to improve said street, and in so doing did in some measure reduce the said street below the doors and entrances into the said stable in the declaration mentioned, as they lawfully might, which are the grievances, mentioned in the plaintiffs’ declaration.”
    The plaintiffs demurred to this plea, and the defendants joined in demurrer.
    This demurrer came on for argument before Judge Scott fit the December term, 1839, and being heard, the demurrer was sustained. The issue of fact was submitted to a jury at February term, 1839, judge Keith presiding. _
    It appeared in evidence that one Ethelred Williams was the owner of the lot and stable thereupon situate on Prince street in the town of Knoxville, and that he had made a deed for the same to William Williams,his son, and his daughter, Cornelia, who had intermarried with plaintiff, Plumes. It further appeared that James Williams had been in possession of the lot and was in possession of the same at the commencement of the suit, which was used both as a stable and granary, and was of the value of eight hundred dollars, and that it was situated on the street on the outermost verge of plaintiffs’ lot.
    It further appeared that this street was in a very bad condition, and that some improvement of it being absolutely necessary for the convenience of the public, in the judgment of the Mayor and Aldermen, an order was passed by the board directing an excavation and grading of the street as near at and along the edge of the lot as was necessary to effect the purposes of the public; that in complying with this order, James Park, the duly authorized agent of the corporation, did excavate and grade the street in front of the stable of plaintiffs, leaving eight feet from the street to the timbers of the stable, with the view, as the said Park testified, of doing as little injury as possible to the property of plaintiffs. It also appeared that the ground had been dug down between six and eight feet, and that the stable was most materially -injured and its value greatly impaired by the agency of the corporation. It did not however appear that there was any other motive actuating the corporate authorities than the improvement of a public street for the convenience of the inhabitants.
    Judge Keith charged the jury, amongst other things, that an action could be sustained against the corporate authorities of a town for injuries done by their agent acting under their direction and authority; that it was not necessary to join the wife of Humes as party plaintiff in the action; that jf James Williams was the tenant of plaintiffs, and an injury was done to their right m remainder, case would be the . ° action.
    The judge further instructed the jury that the streets and a]jeyg 0f town of Knoxville were public highways, and that the repairs and improvements were confided to the Mayor and Aldermen elected according to the act of incorporation, and that they had a right to use the entire streets and alleys, if necessary for public purposes; that if the May- or and Aldermen ordered that Prince street should be improved by grading, and it became necessary to excavate the ground over which the street passed, and no unnecessary digging was done, and such digging was not done wantonly and maliciously, but that notwithstanding the plaintiffs’ lot and stable were injured by such digging by being rendered less accessible and convenient, it would be a damage arising from the peculiar situation of plaintiffs’ property, but it would not be such an injury for which damages could be recovered; that if the digging was done to improve the street ,and no actual trespass was committed, the corporation would not be responsible for consequential damages.
    The judge further charged that the Mayor and Aldermen had a right to exercise their discretion in fixing the width of the side-walks for public convenience, and if, from the falling of rain and other natural causes, the side-walks gave way and an inconvenience was experienced by owners of property from that circumstance a recovery could not be had for such consequential damages in this action.
    The jury returned a verdict for the defendants. A motion for a new trial being made and overruled the plaintiffs appealed in error to the supreme court.
    . Crozier and Jarnagin, for plaintiffs in error,
    cited 2 Scott, 292: Ang. and Ames, 16, 18, 274-5, 207, 208, 219, 220: 7 Mass. Rep. 166,187, 462: Yarborough vs. Bank of England, 16 East: 2 Kent’s Com. 338: 6 Mass. Rep. 364: 4 S. and Rawle, 6: 1 Chitty’s PI. 934.
    
      Swan and Alexander, for defendants in error.
   Turley, J.

delivered the opinion of the court.

The principle both of the civil and common law applicable to the case under consideration is, “that if a man does what he has a right to do upon his own land, without trespassing upon any law or custom or the title or possession of another, he is not liable to damage for injurious consequences, unless he does it, not for his own advantage, but maliciously; and the damage shall be considered a casualty for which he is not censurable.” 12 Mass. 226, case of Thurston vs. Hancock and others. This principle is recognised by the supreme court of New York in the case of Patton vs. Holland, 17 Johns. 92, where it is said that a person about to erect a house contiguous to another may lawfully sink the foundation of it below that of his neighbor’s house, and is not liable for the damages which his neighbor may sustain in consequence of it, provided it was unintentional, and he had used reasonable care and diligence in digging on his own ground to prevent any injury to his neighbor. In Rolls’ Ab. 965, it is said that “if A, seized in fee ot copy-hold estate next adjoining the land of B, erects anew house upon his copy-hold, and a part is built upon the confines next adjoining the land of B, and B afterwards digs his land so near the house of A (but on no part of his land) that the foundation of the house, and even the house itself, fall, yet no action lies for A against B, because it was the folly of A that he built his house so near the land of B, for by his own act he shall not hinder B from the best use of his own land that he can.”

From these authorities the necessary conclusion is, that every proprietor of land, where not restrained by covenant or custom, has the entire dominion of the soil and the space above and below to any extent he may choose to occupy it, and in this occupation he may use his land according to his own judgment, without being answerable for the consequences to an adjoining owner, unless by such occupation he either intentionally or for want of reasonable care and diligence inflicts upon him an injury.

To apply this principle to the case under discussion: The corporation of Knoxville is the proprietor of the public streets of the town, which are held in trust as easements for the convenience of the citizens. As such proprietor the corporation has the power to grade, M’Adamise, or do any thing else for the improvement of the streets, whereby they may be made to answer the end for which they were designed; and if, in the exercise of this power, the property of any individual shall be rendered less valuable, either by being elevated above or depressed below the common level, it is dam-num absque, injuria, a casualty to which his property is necessarily subject, and for which the corporation is not responsible unless the injury has been inflicted either wantonly or from neglecting to use reasonable diligence and care. Neither of these cases is made out by the proof. The improvement of the street is shown to be highly necessary to the comfort and prosperity of the town, and therefore a duty imposed upon the corporation; the work is proved to have been executed with all care for the rights of the plaintiffs, and as little injury done them as from the nature of the excavation required was practicable.

We are therefore of the opinion that there is no error in the judgment of the court below, and direct its affirmance.  