
    (Second Circuit — Franklin Co., O., Circuit Court
    January Term, 1893.)
    Before Stewart, C. J., and Shauck and Shearer, JJ.
    The City of Columbus v. Ezra H. Williard et al.
    A municipal corporation which proceeds with skill and care, and without malice, to drain a street for a lawful purpose, is liable to the owner of an abutting lot for such injury as may result to his soil from the withdrawal of its natural support, even though the support withdrawn consists of percolating waters and sand of such nature and so blended with the waters as to he inseparable from them.
    On error to the Court of Common Pleas of Franklin County.
    The defendants in error brought suit in the court of common pleas to recover damages for injuries to. their real estate abutting on Scioto street in Columbus, from the excavation and drainage of said street for sewer purposes.
    The facts admitted by the pleadings and estáblished by the evidence are that in the construction of an intercepting sewer, which is a part of the system adopted by the city, a tunnel was conducted in Scioto street by the premises of the defendants in error, it being wholly beneath the street, and not beneath said premises. At that point the tunnel was forty-five feet beneath the surface of the street. Near said premises a shaft twelve feet square was sunk to a depth of forty-six feet, and from this shaft the work of constructing the tunnel was prosecuted in either direction.' In sinking the shaft two strata of percolating waters and sand so blended with them as to be inseparable from them, were encountered, the first eighteen feet below the surface. To remove the water and sand so as to permit the prosecution of the work, buckets and steam pumps were employed for a number of days, and thus large quantities of water and sand passed from beneath said premises into the shaft and were removed, from which it resulted that the lots of said plaintiffs settled and subsided, a double brick house, which had stood thereon for about forty years, was so far wrecked as to be uninhabitable, and the ground rendered insecure for the erection of other buildings thereon. In the construction of the shaft and tunnel, due care and skill were used, and all known methods were employed to exclude the water and sand.
    The trial judge instructed the jury that there could be no recovery for the injury to the structures upon the lots unless there was a want of care and skill in the construction of the shaft and tunnel. On the other hand, he instructed that if it was shown that the lots were injured by the removal of underlying material, there should, to that extent, be a recovery, even though the work was prosecuted with care and skill.
    The jury found for the city as to injury to the buildings ; but against it for $8,500.00, the injury to the lots. A motion for a new trial was overruled, and a judgment followed the verdict.
    A reversal of the judgment is sought for the reasons that there is error in the instruction that the city is unconditionally liable for the injury to the lots, and that the verdict is contrary to the law and the evidence.
   Shauck, J.

The judgment below must be affirmed unless there is error in the instruction that if the city removed subjacent and supporting material, it is liable for all resulting injuries to the soil, although the shaft and tunnel were constructed with skill and care.

The distinction made in the charge between the rules of liability for injury to the soil and to structures thereon is said to be justified by the doctrine of Cincinnati v. Penny, 21 Ohio St. 499. Whether it is or not, in view of all the circumstances of this case, we need not determine.

In considering the question before us, we are not aided by the adjudications elsewhere touching the measure of municipal liability in cases of this character. Beginning with Goodloe v. Cincinnati, 4 Ohio, 500, and continuing until the present, the courts of this state have held municipalities to a higher responsibility to the owners of lots abutting upon their streets than has been recognized elsewhere. This they have done with entire consciousness of their departure from the general line of decisions. Rhodes v. Cleveland, 10 Ohio, 160; Keating v. Cincinnati, 38 Ohio St. 141. In the latter cases the rule to be deduced from the earlier cases is clearly stated by White, J., to be: “In this state private property is entitled to the same protection as against all classes of corporations as against natural persons, subject to the right of appropriating such property to public use upon the terms of making full compensation.”

The plaintiffs below are, therefore, entitled to compensation for the injury to their soil, if, under the same circumstances, a recovery could be had against a natural person owning the soil adjacent. Courts and law writers seem to have endeavored to excel in the vigorous statement of the absolute right of the owner of soil in its natural state to have it supported by adjoining soil in its natural state. Such right is not an easement acquired by grant or prescription, but a natural right essential to the enjoyment of his own property and inhering in his own title. In Gilmore v. Driscoll, 122 Mass. 199, it is said “that the right of support from adjoining soil for land in its natural state stands on natural justice, and is essential to the protection and enjoyment of property in the soil, and is a right of property which passes with the soil without any grant for the purpose. It is a necessary consequence of this principle, that for any injury to his soil, resulting from the removal of the natural support to which it is entitled, by means of excavating an adjoining tract, the owner has a legal remedy in an action at law against the party by whom the work has been done and the mischief thereby occasioned. This does not depend upon negligence or unskillfulness, but upon the violation’of a right of property which has been awarded and disturbed.” This doctrine is approved in Keating v. Cincinnati. The same doctrine has been asserted with equal vigor in Washb. on Easements, *p. 430-437, and Wood on Nuisances, p. 200 etseq., and in the numerous cases there cited. No bounds are placed to the application of this doctrine, nor are any conditions to the right of action for such injuries recognized.

A majority are of the opinion that we should accept the doctrine thus stated as authoritative, and adjudge that the plaintiffs below are entitled to maintain the action for injury to this soil.

I am much inclined to a different conclusion. Without questioning the soundness of the general doctrine stated, or the propriety of .its application» in any of the cases cited, there seems to be g rational and proper distinction offered by the circumstances of this case. It involves, in an important sense, the settled principles.of the law with relation to percolating waters. True, the contention does not concern the usufructuary right in percolating waters, and, therefore, the controversy is not determined against the plaintiffs below by Elster v. Springfield, 49 Ohio St.--, and Frazier v. Brown, 12 Ohio St. 294. But in view of the evidence and the instruction the judgment under review, must stand, if at all, upon the proposition that if one proceed with skill and care, and without malice, to drain his own land for a lawful purpose, he is liable to the adjacent proprietor for such injuries as may result to his soil from the withdrawal of its natural support, even though such support consists of percolating waters and sand of such nature and so blended with the waters as to be inseparable from them. Such limitation upon proprietary rights does not seem to be warranted by the cases cited. However broadly the doctrine as to the right of natural support may be stated in Gilmore v. Driscoll and Keating v. Cincinnati, and the many cases of like import, it is laid down only with reference to the removal of obvious support from which there may be cause to anticipate the injury. It has in no case been held that although one has the right to take percolating waters, he is nevertheless liable for injuries resulting therefrom even though he take them with skill and care, and without malice. There is respectable authority for the conclusion that there is no liability in such a case. Gould on Waters, sec. 289; Goddard on Easements, p. 57; Popplewell v. Hodkinson, L. R. 4 Ex. 248. But applying the doctrine stated and approved in Keating v. Cincinnati, the judgment will be affirmed.

Paul Jones and Florizel Smith, for plaintiff in error.

Taylor, Taylor & Taylor, contra.  