
    William R. Morgan, Jr., et al., Resp’ts, v. John Bowes and John Coombs, App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    1. Nuisance—Blasting on adjoining premises.
    An action for damages;caused by blasting on premises adjoining those of plaintiff may be maintained where such damages are caused by violent and continuous concussions, although there is no actual trespass by rocks or soil blown on his premises.
    13. Same—Damages.
    In such case, however, the plaintiff is only entitled to recover the damage sustained at the time of the commencement of the action.
    Appeal by the defendants from a judgment in favor of the plaintiffs entered upon a verdict had. at circuit
    
      Early & Prendergast, for app’lts; John M. Bowers, for resp’ts.
   Barrett, J.

This action is for damages .to the plaintiffs’ houses in Eighty-third street, caused by the wrongful acts of the ■defendants in blasting rock upon the adjoining lands. The defendants are contractors, and as such were, in the months of May And June, 1886, engaged in excavating and removing the rock upon such adjoining lands. They were continuously at work ■during this period, and in the performance of such work they ■caused constant explosions and made heavy blasts. These blasts were produced by the agency of a species or gunpowder known as giant powder. Serious injury resulted therefrom to the plaintiff’s houses. The upper part of a mantel-piece was at one time knocked off. On another occasion the range was knocked out of place, also the washtubs, boilers and superstructure of the fireplace. The ceiling was left in a hanging condition. Again, the walls were blown in on one side, the staircase was blown down, a door was blown out and its frame broken. What was left of the fireplace and mantel, after a previous explosion, was blown across the room. Everything on the dining-room table was broken. The effect of these explosions was also to loosen all the walls of the house and all the ceilings; rendering them liable to fall at any time. The adjoining house became untenantable, and the danger was so great and imminent that the tenant in occupation,, after vainly protesting against the defendants’ conduct, was compelled to move out.

There can be no doubt that the plaintiffs established, without contradiction, a clear case of a private nuisance. The explosions-were not accidental, nor were they isolated acts. They were deliberate and continuous. And they did great, constant and increasing damage to the plaintiffs’ property. In other words, the defendants prosecuted the business in which they were engaged in such a manner as to disturb the rightful possession of the-plaintiffs and to cause direct and immediate injury to their property.

The appellants claim a reversal upon two grounds; first, that an action will not lie for damages to a neighbor’s house by excavating on one’s own soil; and, second, that an action for damages caused by blasting on one’s own land will only lie when an actual trespass upon the res is committed, as where the rock or soil is blown over into the adjoining lot or against the adjoining house.

As to the first point, we need only say that this action is not. for injuries to the plaintiffs’ wall or building, resulting from excavation upon the adjoining land. There is no question here of supporting the plaintiffs’ wall, or of digging out the contiguous-soil carelessly or unlawfully. Such cases, therefore, as Dorrity v. Rapp, 72 N. Y., 309, have no application. The question here is solely as to the acts of the defendants in blasting the rock upon the adjoining lands. We think the second point taken by the appellants is also untenable. ¿The rules which have been laid down upon the subject of private nuisances, causing damage to-individuals, do not limit the right of action as thus contended for. It is true that in Hay v. Cohoes Co., 2 N. Y., 159, fragments of the rock blasted by the defendants were actually thrown against and injured the adjoining building, which belonged to the plaintiff. The observations of the learned court were made with reference to that fact, but it was by no means intimated that such an action could not be maintained where the same damage was produced by violent and continuous concussions. On the contrary, the disturbance of the plaintiffs’ rightful possession, and the direct and immediate injury to his property, were the grounds upon which the right of recovery was placed. There the plaintiff’s stoop was demolished. It was certainly unimportant whether such demolition resulted from the direct attack of broken rock, or from the concussion caused by the blast. The court specified some of the acts which violate the right of domain, such as polluting the air upon the plaintiff’s grounds, abstracting a portion of the soil and casting foreign substances upon the land, but there was no attempt at a complete enumeration of actionable acts, nor was any limitation placed upon the broad principle that even in the pursuit of a lawful occupation one has no right to create a nuisance to the injury of his neighbor. The later cases abundantly support an action based upon the facts here established. Benner v. Atlantic Dredging Co., 34 St. Rep., 632, is directly in point.

What constitutes an actionable private nuisance was elaborately considered in McKeon v. See, 4 Rob., 449. There it was held that the continuous jarring of a neighbor’s house, by the use of steam power upon one’s own premises, causing injury, amounted to a nuisance and was actionable ; and that this was the law, although “ the defendant’s business was lawful and publicly beneficial, and conducted with every reasonable precaution as to the character of his building and machinery and mode of using them to prevent unnecessary injury to the plaintiff.”

This case was affirmed, and its principle approved by the commission of appeals. 51 N. Y., 300; citing Fish v. Dodge, 4 Denio, 311; Tipping v. St.Helen's Smelting Co., 4 Best & Smith, Q. B., 116 Eng. C. L. R., 608; 5 Am. L. Reg. (N. S.), 104. The same doctrine was laid down, with extended illustration and copious citation of authority, in Heeg v. Licht, 80 N. Y., 579. The grounds upon which the appellant claims a reversal, generally, are therefore untenable. Other objections to a recovery appear in the record, but as the appellants have not deemed such objections o£ sufficient importance to be raised upon this appeal, we need not consider them.

We think, however, that the learned judge erred in one par- ■ ticular with regard to the damages. He allowed the plaintiffs to recover $760 (with $109.67 interest thereon) for loss of rent. It appeared that the plaintiffs’ tenant moved out of theinjured house in June, 1886. He paid the rent for the months of May and June, 1886. The action was commenced on the 18th of June, 1886. From this it appears that the plaintiffs were allowed to recover for loss of rent from the commencement of the action down to the time of trial. Without considering any other question which this item suggests, it is sufficient to say that in an action at law for damages, the plaintiff is confined to such as have accrued at the commencement of his action. Uline v. N. Y. C. R. R. Co., 101 N. Y., 109; Pond v. Metropolitan Elevated R. R. Co., 112 id., 186; 20 St. Rep., 479; Barrick v. Schifferdecker, 48 Hun, 357; 16 St. Rep., 449. The learned counsel for the defendants duly excepted to the direction on this head. He also excepted to the denial of his motion to strike out the evidence as to the loss of rent and to the refusal of the learned judge to direct the jury that in no event could the plaintiffs recover anything for loss of such rent.

The other items of damages were properly submitted to the jury and were properly allowed.

The judgment should therefore be modified by deducting therefrom the sum of $869.67, and, as thus modified affirmed, without ■costs of this appeal.

Van Brunt, P. J., concurs.  