
    The City of Tiffin v. McCormack et al.
    1. Where the owner of a stone quarry, by blasting with gunpowder, destroys the buildings'of an adjoining land owner, it is no defense to show that ordinary care was exercised in the manner in which the quarry was worked.
    2. The owner of a stone quarry hired a person “to go into the quarry, quarry stone therein, break the same to a certain size, and pile them up so they can be measured,” and “had no other or further control” over the employe, who was “to furnish and find the gunpowder and other tools,” and receive compensation at the rate of $1 per perch; and the employe, by blasting with gunpowder, destroyed the buildings of an adjoining proprietor: Held, that the employer is liable for the injury inflicted by the employe.
    Error to the District Court of Seneca county.
    The original action was brought by defendants in error against plaintiff in error, in the Court of Common Pleas of Seneca county. The plaintiffs, in their petition, alleged that, previous to the injury complained of, they were the owners of a certain lot of land in the city of Tiffin, together with the dwelling-house, barn, stable, fruit and ornamental trees thereon. And they further alleged as follows:
    
      “ That, at said time, the said defendant, the city of Tiffin, which was then, and is now, a municipal corporation, duly organized under the laws of the State of Ohio, was the owner and had the use and possession of a certain lot of land immediately west of the lands and tenements of the said plaintiffs, and adjoining and contiguous thereto. That said premises of the said defendant were used, possessed, and occupied by the defendant, and for the purpose of a stone quarry. That on or about the first day of August, A. n. 1872, the said defendant, by its agents or employes, did •intentionally, carelessly, and negligently blast stone in its said stone quarry, with powder, whereby fire was thrown upon the barn of said plaintiffs, situated as aforesaid, by which the said barn, together with the hay and food contained therein, were entirely consumed by fire, to the damage of the said plaintiffs five hundred dollars. Also a large number of fruit and ornamental trees situated on said premises, belonging to said plaintiffs, were consumed by said fire, caused by the said defendants as aforesaid, to the damage of the said plaintiffs two hundred dollars. That the said plaintiffs, on account of the said acts and negligence of the said defendant, did sustain still further loss by said fire, to their said property, in all amounting to the sum of eight hundred dollars.”
    And prayed for judgment. The defendant, for answer, denied “ that the defendant, by its agents or employes, intentionally, carelessly, or negligently blasted stone in its ' said stone quarry, or that the defendant, or any person, by blasting stone in said stone quarry, caused the buildings or trees of the plaintiffs to be consumed or injured by fire.”
    It also said: “ That the persons engaged, at the time alleged in said petition, in blasting stone in said quarry, if any persons were then so engaged, were not, nor was any one of them, the agent or employe of the defendant.”
    On the trial, a verdict and judgment were rendered in favor of the plaintiffs, whereupon the following bill of exceptions was taken:
    “ Be it remembered that upon the trial of this cause by a jury in said court pf the February term thereof, 1874, the plaintiffs, to maintain the issues upon their part, offered and gave evidence tending to prove that one Joseph Ardner, on the day the building and other property mentioned in the petition was burned, was engaged in blasting stone in a stone-quarry near to the building so burned, and tending to prove that said building and other property was burned by fire communicated by the operations of said Ardner in blasting stone in said quarry, and also proved that said Ardner was quarrying stone for the defendant in a stone-quarry belonging to the defendant, which stone were to be broken-by said Ardner, and to be used by the defendant in improving or repairing its streets.
    “And thereupon the said defendant, the city of Tiffin, to maintain the issues on its part, proved that, upon the occasion mentioned and referred to in the petition of the said plaintiffs herein, and in their said testimony, it had hired or engaged the said Ardner to go into its said stone-quarry, quarry stone therein, break the same to a certain specified size, pile them up in said quarry, so that they could be measured, and to furnish and find the powder and tools for said work — all for and at the agreed price of one dollar for each and every perch as measured in said quarry.
    “ That it had no other or further control over said Ardner in said work.
    “And that the said stone so quarried, broken, and piled up by said Ardner, in said quarry, under said engagement, was for improving the streets of the said defendant.
    “ The defendant thereupon requested the court to charge and instruct the jury — ■
    “ That if Mr. Ardner quarried this stone and broke it to a certain size under an agreement with the city of Tiffin, to get a certain price a perch for the quantity of stone so broken and quarried, aud if under his agreement with the city he was to manage the work in his own way, and the city did not reserve the right to control and direct him in said work, and the mode and manner of doing it, further than to require said stone to be broken to a certain size and so piled up as to be measured, then and in that case he would not be the agent or servant of the city, and if not such agent or servant, then the city would not be liable for any injury resulting from the mode and manner of doing the work, or the means used in its performance. "Which charge and instruction the court refused to give to the jury, and the same was not given.
    “ But the court did thereupon charge the jury, that if the said property of the said plaintiffs was burned and damaged by fire communicated to it by said Ardner in his blasting the said stone in said quarry, under the said engagement proven by the said defendant, then the plaintiffs were entitled to their verdict for the value of their property so burned and damaged.
    “ To which refusal to charge as requested, and to which said charge as given, the said defendant then and there excepted, and presented this, his bill of exceptions, asked that the same be signed, sealed, and filed, and ordered to be made a part of the record in this case. All -of which is done accordingly.”
    On error in the district court, the judgment of the common pleas was affirmed. It is now assigned for error, that the district court erred in affirming the judgment of the common pleas, and that the court of common pleas erred in its charge to the jury.
    
      John McCauley and A. Lanclon, for plaintiff in error:
    As to the rule' respondeat superior, see Clark v. Fry, 8 Ohio, 358; Cincinnati v. Stone, 5 Ohio St. 38; 1 Parsons on Contracts (5th ed.), 102-104; Dillon on Mnn. Corp., §§ 772, 773; 19 Am. Rep. 267; 1 Parsons’ Contracts, 108; 2 Mich. 368 ; 2 Met. 363; 16 Wall. 566. We claim the rule-does not apply to the city.
    
      George W. Bachman and N. L. Brewer, for defendants in-error :
    The city is liable, under the rule of respondeat superior. 12 Wheat. 40; Carman v. Railroad, 4 Ohio St. 309; 10 Ohio, 169 ; 15 Ohio, 474; Lowell v. Railroad, 23 Pick. 24; Hay v. Davidson, 13 Minn. 523; Stone v. Railroad, 19 N. H. 427.
   McIlvaine, J.

It is claimed, by plaintiff in error, that the relation shown to have existed between'the city and Ardner was that of employer and independent contractor, from which no liability falls upon the employer on account of the manner in which the employment is prosecuted, the rule being, in such case, that the contractor is alone responsible for an injury inflicted upon third persons by reasou of his wrongful act.

We concede the general rule of law to be that an independent contractor is alone responsible for an injury inflicted by him upon third persons, and that his employer is not within the principle upon which the doctrine of respondeat superior rests. Yet, it is equally certain, that the employer is also liable for the wrongful act of the contractor under circumstances which show that he, as clearly as the contractor, was the author and promoter of the injury. Eor instance, where the prosecution of the work as authorized by him necessarily produces the injury, he, as well as his contractor, is responsible for the damage. McCafferty v. The Railroad Co., 61 N. Y. 178. And again, when the contractor prosecutes his work in the manner authorized by the employer in the express terms of the contract, the employer must be regarded as having assented to, and as procuring the unlawful act to be done, and is, therefore, liable as a joint wrong-doer. Carman v. S. & S. Railroad Co., 4 Ohio St. 399. Within the principle of the case last cited, the liability of the city for the wrongful act of Ardner, although he be considered as an independent contractor, must be affirmed; for it clearly appears, that the work of quarrying stone on the city’s premises, by blasting, was clearly assented to and authorized.

But we are of opinion that the true relation between the city, as proprietor of the stone quarry, and Ardner, was that of master and servant, instead of employer and independent contractor within the principle of the rule above stated. There.was no “job” or defined quantity of work contracted for. The services of Ardner were subject to be determined at the pleasure of either party. The compen-. sation was to be measured by the quantity of labor performed. It appears to us to have been an ordinary contract for work and labor, which creates, between the employer ánd employed, the relation of master and servant, within the meaning of the law in regard to that subject. It is' true that the service, namely, the quarrying of stone in the employer’s quarry, was to be done by the use of powqler and tools furnished by the employe; but this condition in the contract, did not affect the legal relation between the parties. It was significant only as a matter affecting the rate of compensation. And it is also true, that the city ■“ had no other or further control over Ardner in said work.” Whether this language means that the city exercised no other or further control, or that the city contracted with Ardner that it would not exercise any other or further control over the work, makes no difference. If it were a mere failure to exercise control, it was the fault of the city. If it was part of the contract with the servant, that no other or further control should be exercised by the city, it is enough to say that a master can not exonerate himself from responsibility to third persons, which the daw imposes upon him, for injury resulting from the misconduct of his servant, by contracting with the servant that he will not exercise any control over him, and will not, therefore, be-responsible for any injury that he may wrongfully inflict.

It only remains, therefore, to be considered whether the city of Tiffin, if the injury complained of had been inflicted upon the defendant in error, by its own act, would be liable for the damages. That a municipal corporation, as the proprietor of lands, would be responsible for an injury resulting from the use of its own property to an adjacent proprietor, to the same extent as if it were a natural person, is not questioned.

As between tbe owners of adjacent lands, the maxim of the common law, Sic utere tuo ut alienum non Icedas, applies with special force; not because it forbids the exercise of the right of dominion or control of property, according to the pleasure of the owner, in one case more than in another, whether it be real or personal property, or whether it be owned for special or general uses, but because the right to use or control it, according to the pleasure of the owner, is limited under some circumstances more than under others. Undoubtedly, the right to use property as the owner may please, provided that reasonable care is taken not to do unnecessary injury to others, is the ordinary rule. But this rule can not be interposed to justify the committing of a trespass Or the maintaining of a nuisance. A man who digs a pit on his own land, whereby the soil of an adjoining proprietor is disturbed on account of the loss of lateral support, can not justify his act on the ground that ho used reasonable care to prevent the injury. Neither can one in possession of a parcel of land operate and manage a mine or quarry upon it in such manner as to injure or destroy the property of an adjoining proprietor, justify himself by showing that he used ordinary care in the use of his own property. In such eases, the right to use is subject to the limitation that its use will not injure his neighbor. The true doctrine upon this point is well stated in the case of Hay v. The Cohoes Co., 2 Comstock (N. Y.), 159, as follows: “ The use of land by the proprietor is not therefore an absolute right, but qualified and limited by the higher right of others to the lawful possession of their property. To this possession the law prohibits all direct injury, without regard to its extent or the motives of the aggressor. A man may prosecute such business as he chooses upon his premises, but he can not erect a nuisance to the annoyance of the adjoining proprietor, even for the purpose of lawful trade. 9 Coke, 58. He may excavate a canal, but he can not cast the dirt stones upon the land of his neighbor, either by hum an agency or the force of gunpowder. If he can not 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.” And in Tremain v. The Cohoes Co., Ib. 168, it was held, that, in such case, evidence to show that the work was done in the most careful manner is inadmissible where there is no claim made for exemplary damages.

Judgment affirmed.  