Losee v. Buchanan

Upon the first trial of this action, the presiding judge dismissed the complaint as against the defendants Clute, who manufactured the engine, and held that the other defendants were liable irrespective of negligence, and excluded all evidence to show that they were not guilty of negligence. Eor this error, upon appeal to the General Term, the judgment was reversed and new trial granted, the court holding that the defendants could be made liable only by proof against them of negligence. Upon the second trial, the presiding judge held in accordance with the law as thus laid down by the General Term, and upon the question of negligence the jury decided against the Saratoga Paper Company and in favor of the other two defendants. The plaintiff claimed, as he did upon the first trial, that the defendants were liable without the proof of any negligence, and requested the justice so to rule, and the refusal of the justice to comply with this request raises the principal question for our consideration upon this appeal.

The claim on the part of the plaintiff is, that the casting of the boiler upon his premises by the explosion was a direct trespass upon his right to the undisturbed possession and occupation of his premises, and that the defendants are liable just as they would have been for any other wrongful entry and trespass upon his premises.

I do not believe this claim to be well founded, and I will briefly examine the authorities upon which mainly an attempt is made to sustain it.

In Farrand v. Marshall ( 21 Barb., 409 ) it was held that a man may dig on his own land, but not so near that of his neighbor as to cause the land of the latter to fall into his pit, thus transferring a portion of another man’s land 'to his own. This is upon the principle that every man has the natural right to the use of his land in the situation in which it was placed by nature, surrounded and protected by the soil of the adjacent lots. He has a right to the support of the adjoining soil, and to that extent has an easement in his neighbor’s soil, and when the soil is removed his easement is directly interfered with. When one adjoining owner thus removes the soil, he is not doing simply what he may with his own, but he is interfering with the right which his neighbor has in the same soil. This rule, however, as stated by Judge Bbonson in Radcliff's Executors v. Mayor, etc., of Brooklyn (4 Comst., 203), must undoubtedly be somewhat modified in its application to cities and villages. In Hay v. The Cohoes Company (2 Comst., 159), the defendant, a corporation, dug a canal upon its own land for the purposes authorized by its charter. In so doing it was necessary to blast rocks with gunpowder, and the fragments were thrown against and injured the plaintiff’s dwelling upon lands adjoining. It was held that the defendant was liable for the injury, although no negligence or want of skill in executing the work was alleged or proved. This decision was well

In Bellinger v. The New York C. R. R. Co. ( 23 N. Y., 47 ), it was decided that where one interferes with the current of a running stream, and causes damage to those who are entitled to have the water flow in its natural channel, but such interference is in pursuance of legislative authority granted for the purpose of constructing a work of public utility, upon making compensation, he is liable only for such injury as results from the want of due skill and care in so arranging the necessary works as to avoid any danger reasonably to be anticipated from the habits of the stream and its liability to floods. Judge Denio, in his opinion, referring to the maxim aqua eurrit et debet cv/rrere, says, it “ absolutely prohibits an individual from interfering with the natural flow of water to the prejudice of another riparian owner upon any pretence, and subjects him to damages at the suit of any party injured without regard to any question of negligence or want of care.” The liability in such cases is based upon the principle that the interference is an immediate and direct violation of the right of the other riparian owners

In Pixley v. Clark ( 35 N. Y., 520 ) it was held, that if one raises the water in a natural stream above its natural banks, and to prevent its overflow constructs embankments which answer the purpose perfectly, but by the pressure of the water upon the natural banks of the stream percolation takes place so as to drain the adjoining lands of another, an action will lie for the damages occasioned thereby; and that it matters not whether the damage is occasioned by the overflow of or the percolation through the natural banks, so long as the result is occasioned by an improper interference with the natural flow of the stream. This decision was an application of the maxim yqua currit et debet eurrere to the facts of that case. It was held that the liability was the same whether the water was dammed up and caused to overflow or to percolate through the banks of the stream. It was a case of flooding lands by damming up the water of a stream, and the liability of a wrong-doer in such a case has never been disputed.

In the case of Selden v. The Delaware and Hudson Ganad Co. (24: Barb., 362) it was held that the defendant had the power, under its r-'\- enlarge its canal; but that, B',dlign it possessed this pv.vcr, >"m<! >ipuu soaking Compensation therefor to take private property for that purpose, it was liable to remunerate individuals in damages for any injuries they might sustain as the consequence of such improvement; and that, if by means of the enlargement, a lawful act1 in itself, the lands of an individual were inundated, even though the work may have been performed with all reasonable care and skill, it was a legal injury, for which the owner was entitled to redress. It may well be doubted if this decision can stand in vieAV of the principles laid down in the case of Dellinger v. The New York Central PaiVroad Company (supra). Within the principles of that case, if the Delaware

Blaekstone (vol. 3, p. 209) says, “ that whenever an act is directly and immediately injurious to the person or property of another, and therefore necessarily accompanied with some force, an action of trespass m et armis will liefor “ the right of meum and tvAmi or property in lands being once established, it follows as a necessary consequence that this right must be exclusive; that is, that the owner may retain to himself the sole use and occupation of his soil. Every entry, therefore, thereon without the owner’s leave, and especially contrary to his express order, is a trespass or trans

By becoming a member of civilized society, I am. compelled to give up many of my natural rights, but I receive more than a compensation from the surrender by every other- man of the same- rights, and the security, advantage and protection which the laws give me. So, too, the general rules that I. may have the exclusive and undisturbed use and possession of my real estate, and that I must,.so use-my real estate as not to injure my neighbor, are much modified by the exigencies of the social state. We must have factories, .machinery, dams, canals and railroads. They are demanded by the- manifold wants of mankind, and lay at the basis, of all our civilization. If I have any of these upon my lands, and they are not, a.nuisance .and are not so managed as to become such, I am not

I have so far found no authorities and no principles which fairly sustain the broad claim made by the plaintiff, that the defendants are liable in this action without fault or negligence on their part to which the explosion of the boiler could be attributed.

But our attention is called to a recent English case, decided in the Exchequer Chamber, which seems to uphold the claim made. In the case of Fletcher v. Rylands (1 Exchequer, 265, Law Reports) the defendants constructed a reservoir on land separated from the plaintiff’s colliery by intervening land. Mines, under the site of the reservoir and under part of the intervening land, had been formerly worked; and the plaintiff had, by workings lawfully, made in his own colliery and in the intervening land, opened an underground communication between his colliery and the old workings under the reservoir. It was not known to the defendants, nor to any person employed by them in the construction of the reservoir, that such communication existed, or that there were any old workings under the site of the reservoir, and the defend

It is sufficient, however, to say that the law, as laid down

The true rule is laid down in the case of Livingston v. Adams as follows: “Where one builds a mill-dam upon a proper model, and the work is well and substantially done, he is not liable to an action though it break away, in consequence of which his neighbor’s dam and mill below are destroyed. Negligence should be shown in order to make him liable.”

In conflict with the rule as laid down in the English cases is a class of cases in reference to damage from fire communicated from the adjoining premises. Eire, like water or steam, is likely to produce mischief if it escapes and goes beyond control; and yet it has never been held in this country that one building a fire upon his own premises can be made liable if it escapes upon his neighbor’s premises and does him damage without proof of negligence. (Clark v. Foot, 8 J. R., 422; Stuart v. Hawley, 22 Barb., 619 ; Calkins v. Barger, 44 id., 424; Lansing v. Stone, 37 id., 15 ; Barnard v. Poor, 21 Pick., 378 ; Tourtellot v. Rosebrook, 11 Metcalf, 460; Batchelder v. Heagan, 18 Maine, 32.) The rule, as laid down in Clark v. Foot, is as follows: “ If A. sets fire to his own fallow ground, as he may lawfully do, which communicates to and fires the woodland of B., his neighbor, no action lies against A. unless there was some negligence or miscon

In Hinds v. Barton ( 25 N. Y., 544 ), and Teall v. Barton ( 40 Barb., 137 ), sparks were emitted from a steam dredge used upon the Erie canal, and they.set fire to neighboring buildings, and although the sparks were thrown directly upon the buildings it was held that the defendant could be made liable only by proof of negligence. In Cook v. The Champlain Transportation Co. ( 1 Denio, 91 ), the buildings of the plaintiff were fired by sparks thrown thereon from defendant’s steamboat upon Lake Champlain, and it was held that the defendant could be made liable only by proof of negligence. All these cases and the class of cases to which they belong are in conflict with the rule as claimed by the plaintiff. A man may build a fire in his house or his steam boiler, and he does not become liable without proof of negligence if sparks accidentally pass directly from his chimney or smoke-stack to the buildings of his neighbor. The maxim of sio utere tuo, ete., only requires, in such a case the exercise of adequate skill and care.

The same rule applies to injuries to the person. Ho one in such case is made liable without some fault or negligence on his part, however serious the injury may be which he may accidentally cause; and there can be no reason for holding one liable for accidental injuries to property when he is exempt from liability for such injuries to the person. It is settled in numerous cases that if one driving along a highway accidentally injures another he is not liable without proof of negligence. (Center v. Finney, 17 Barb., 94 ; Hammock v. White, 103 Eng. Com. Law, 587.)

In Hussey v. Dunlap, Lalor’s Supplement, 193), the action was for throwing a stone at the plaintiff’s daughter and putting

In Bissell v. Booker ( 16 Ark., 308 ), it was held that one who is hunting in a wilderness is not bound to anticipate the presence, within range of his shot, of another man, and that he is not liable for an injury caused unintentionally by him to a person of whose presence he was not aware. (See also the cases of Driscoll v. The Newark and Rosendale Co., 37 N. Y., 637 .)

In Spencer v. Campbell ( 9 Watts & S., 32 ) a man drove a horse to defendant’s steam grist-mill to get some grist which he had had ground, and he was thus lawfully upon defendant’s premises and was just as much entitled to protection there as if he had been upon his own premises. While there the steam boiler exploded and killed his horse, and the action was brought for the value of the - horse; and it was held that, to entitle the plaintiff to recover, he was bound to show the want of ordinary care, skill and diligence. I am unable to see how that case differs in principle from the one at bar. To sustain the broad claim of the plaintiff .here, it should have been held in that case that the owner of the steam boiler was absolutely liable, irrespective of any care, skill or diligence on his part, for any damage which the boiler by its explosion occasioned to any property lawfully in the vicinity. Within the rules laid down by these authorities, the defendants in this case could not, without proof of negligence, be made liable for injuries caused to the persons of those who were near at the time of the explosion; and it would be quite illogical to hold them liable for injuries to property, while they were not liable for injuries to persons by the same accident.

In support of the plaintiff’s claim in this action the rule has been invoked that, where one of two innocent parties must

|;ase the defendants had the right to place the steam |i them premises. It was in no sense a nuisance, have found that they were not guilty of any The judgment in their favor should, therefore, Affirmed at the General Term, unless there were charge, or refusal to charge, of the judge who the trial, and these alleged errors I will now Maine.

Alleged that the judge erred in charging the jury that Pendants are not liable for negligence or want of skill on % part of the manufacturers of the boiler in question not mown to them“ that defendants are not liable except upon proof of negligence or unskillfulness on the part of the authorized servants or agents of the company;” “ that there is no proof of any relation between the plaintiff and defendant, Buchanan, creating any obligation or duty on the part of the latter toward the former;” “ that defendant, Buchanan, is not liable for any negligence or unskillfulness on the part of the Saratoga Company or An the part of the manufacturers of the boiler in question.” 'law are not found in the charge, but were decisions made upon the motion for a nonsuit, and were not excepted to.

The judge charged the jury “that if they were of opinion that the reduction by Goddard (the engineer and agent of the paper company, who had charge of the boiler) of the steam pressure from 120 to 110 was a proper, prudent and sufficient exercise of care and skill under the circumstances, that the defendants were not liable on account of leakage;” “ that the cold shut in the head that previously gave out was

imwrr r,-?These charges were excepted to by plaintiff’s counswere requests to charge on the part of the defend; to by the judge. Some of them should proper! somewhat qualified and explained, and are tlieref! some criticism. But we must look at the whole ■ judge of it from its whole sebpe, and if, taking it a it presented the questions of law fairly to the juf to mislead them, exceptions to separate propositid! or to detached portions of it, will not be upheld. As s3 Chief Judge Chuboh, in Caldwell v. New Jersey 8temnñ Go. (47 BT. Y., 282), “ If the charge as a whole conveyed fl the jury the correct rule of law, on a given question, the judgment will not be reversed although detached sentences may be erroneous; and if the language employed is capable of different constructions, that construction will be adopted which will lead to an affirmance of the judgment, unless it fairly appears that the jury were, or at least might have been, misled.”

The judge in his charge submitted the whole question of negligence to the jury. He charged that the defendants were liable for the omission of such care as men of ordinary prudence engaged in the use of such a steam boiler in such business would exercise, and that they were liable for any imperfections in the boiler, which contributed to the explosion, which were known to them; but, that if the explosion was caused by the cold shut in the head of the boilei* which were imperceptible to the defendants or undiscoverable on examination or by the application of known tests, they were not liable. He charged the jury fully in reference to the

The plaintiff requested the court to charge “ that the defendants cannot excuse or justify themselves in the use of the boiler in question, on the ground that the same was purchased of reputable manufacturers.” This the judge refused to charge, and the plaintiff excepted. The principle of law involved in this request was fairly covered by the charge as made, and yet it may well be doubted whether the judge would have been justified in charging in the language of the request. The fact that the defendants bought the boiler of reputable manufacturers was one of the facts tending to a justification which the jury were to consider. It was not of itself a conclusive justification, and the judge did not charge that it was. If he had refused to charge that they could not justify on the sole ground that they had purchased it of reputable manufacturers, it would have been error. A charge in the very language of the request might have misled the jury by taking from their consideration the fact that the boiler was bought from reputable manufacturers upon whose judgment, skill and integrity the defendants had the right to place some reliance.

I have, therefore, reached the conclusion that no error was committed upon the trial of this action, and it follows that the order of the General Term must be reversed, and the judgment entered upon the verdict must be affirmed, with costs.

All concur.

Order reversed and judgment accordingly.