CASES

IN THE

SUPREME COURT OF JUDICATURE

OF

NEW JERSEY.

MCGUIRE v. GRANT.

[1 DUTCHER, 356.]

THERE IS INCIDENT TO LAND, IN ITS NATURAL CONDITION, RIGHT TO SUPFORT FROM ADJOINING LAND; and if the land sinks or falls away in consequence of the removal of such support, the owner is entitled to damages to the extent of the injury sustained.

MEASURE OF DAMAGES IN ACTION FOR CAUSING LAND TO SINK OR FALL AWAY in consequence of the removal of its support by adjoining land, is the diminution in the value of the land or lot, and not what it will cost to restore the lot to its former condition, or to build a wall to support it. This applies to land not subject to artificial pressure, as where no buildings stand thereon. OWNER CANNOT RECOVER FOR INJURY DONE TO BUILDING STANDING ON BOUNDARY LINE OF LOT, which tumbles down by reason of excavations made upon adjoining lot, where there has been no improper motive or carelessness in the execution of the work. The loss is damnum absque injuria. DEFENDANT IS PERSONALLY RESPONSIBLE FOR HIS INJURIOUS ACT IN REMOVING NATURAL SUPPORT OF LAND not subjected to artificial pressure, or not having buildings thereon, if such act were done by himself, or by his direction, or by persons in his employ.

TO RENDER Defendant Liable WHERE ACT COMPLAINED OF WAS NOT DONE BY HIM, the relation of master and servant must exist between him and those by whose instrumentality the act was done, except in some cases where he renders himself a legal participator in wrongful acts by subsequently adopting and sanctioning them.

MASTER'S RESPONSIBILITY FOR TORTIOUS ACTS OF HIS SERVANT WHICH WERE DONE IN HIS SERVICE grows out of, is measured by, and begins and ends with his control over them.

OWNER, OR PRINCIPAL CONTRACTOR, or Master WorKMAN, IS NOT RESPONSIBLE FOR DAMAGE OCCASIONED by the wrongful acts of persons employed by a subcontractor or under-workman, or by a person carrying on a dis

tinct independent employment, because they are not his servants, and do not act for him, but for their immediate employer. WHERE CHAIRMAN OF STREET COMMITTEE OF MUNICIPAL CORPORATION ORDERS LAWFUL ACT, such as the performance of certain work, to be done, and the work is done, so as to occasion an actionable injury, by workmen under the immediate superintendence and direction of the street commissioner, who is a distinct and independent officer of such corporation, not appointed or controlled by the committee, such chairman is not liable for injury resulting from the work.

DEFENDANT MAY DENY HIS LIABILITY UNDER GENERAL ISSUE, but he must plead justification specially.

THIS case was certified from the Mercer circuit for the advisory opinion of the supreme court. The action was brought for damages done to plaintiff's lot, caused by excavations made upon an adjoining one. The general issue was pleaded. The opinion of Elmer, J., sufficiently states the facts. Plaintiff was nonsuited. The opinion of the supreme court was wanted on the following points: 1. Upon the facts stated, can an action be maintained by the plaintiff for the injury done to his land? 2. Is the defendant liable for the injury? 3. If yea, can he avail himself of the legal defense offered under the general issue? 4. If the defendant be liable, what is the measure of damages ?

Halsted, for the plaintiff.

Beasley, for the defendant.

By Court, GREEN, C. J. The first question submitted for con-` sideration is whether, upon the facts stated in the case certified, an action can be maintained by the plaintiff for the injury done to his land. The injury complained of consists in the settling and falling away of the plaintiff's land in consequence of excavations made upon an adjoining lot. If the acts complained of were done with a malicious intent, or if the injury sustained by the plaintiff resulted from the careless and improper manner in which the work was executed, it is not denied that the plaintiff would be entitled to recover. The existence of improper motive, or of negligence or unskillfulness in the performance of the work, are questions of fact for a jury: Walters v. Pfeil, 1 Moo. & M. 362; Dodd v. Holme, 1 Ad. & El. 493; Panton v. Holland, 17 Johns. 92 [8 Am. Dec. 369].

The case presents the simple inquiry, whether, in the absence of improper motive or negligence on the part of the defendant, the owner of land is entitled to recover for injuries sustained by the settling or falling away of his land, occasioned by excava

tions made on an adjoining lot. From the facts stated in the case, it must be assumed that the excavation was not made to an extraordinary or unusual depth; for although the excavation was made for the purpose of obtaining gravel, and was twenty feet below the surface of the plaintiff's lot, it was but two or three feet below the grade of Cooper street, upon which the lot in which the excavation was made fronted. It was not, therefore, a greater excavation than would be required for the ordinary purposes of building.

It is insisted, on the part of the defendant, that the maxim, Sic utere tuo ut alienum non lædas, applies, in its broadest signification, to the question under consideration; that while the owner of the land owns not only the surface of the soil, but above and below it to an indefinite extent, he is bound so to use and enjoy his own property as to occasion no injury to the property of others; and that, consequently, while excavating upon his own soil, he is answerable for every injury done to the buildings or land of an adjoining proprietor. The principle, it is certain, does not admit of so broad an application. There are many acts done in the exercise of individual rights which occasion loss to others, which nevertheless afford no subject of legal redress. The loss they occasion is, in the eye of the law, damnum absque injuria. The line which separates this class of acts from those which form the subjects of legal redress is often shadowy and indistinct. It rests frequently upon grounds of public policy, or upon the mere force of authority, rather than upon any clear or well-defined principle.

It is well settled that where the owner of a lot builds upon his boundary line, and the building is thrown down by reason of excavations made upon the adjoining lot (in the absence of improper motive and carelessness in the execution of the work), no recovery can be had for the injury done to the building. There are two early cases in which, under similar circumstances, a recovery was had, though it does not appear that in either of them the point now under consideration was distinctly raised. In one of them the exceptions taken were confined to the form of the declaration: Slingsley v. Barnard, Rolle, 430; Smith v. Martin, 2 Saund. 394.

But the cases denying the right of recovery under such circumstances are so numerous, and the modern cases so uniform, that the question must be considered as finally at rest, so far as authority can settle it: 2 Roll. Abr. 565, tit. Trespass, I, pl. 1; Com. Dig., tit. Action on the Case for Nuisance, C; Massey v.

Goyder, 4 Car. & P. 161; Wyatt v. Harrison, 3 Barn. & Adol. 871; Partridge v. Scott, 3 Mee. & W. 220; Humphries v. Brogden, 12 Ad. & El., N. S., 739; Gayford v. Nicholls, 9 Exch. 702; Thurston v. Hancock, 12 Mass. 220 [7 Am. Dec. 57]; Panton v. Holland, 17 Johns. 92 [8 Am. Dec. 369]; Lasala v. Holbrook, 4 Paige, 169 [25 Am. Dec. 524]; Hay v. Cohoes Co., 2 N. Y. 159 [51 Am. Dec. 279]. The principle upon which the decisions rest has been so elaborately discussed, and so repeatedly and thoroughly investigated, that a reinvestigation would be profitless labor. It is only necessary to say that we regard the question as settled in accordance with principle and sound policy.

Whether the same principle applies to injuries done to the soil in its natural condition, with no buildings erected upon it, is a question of more difficult solution, and which, until recently, has not been the subject of express adjudication. It has, however, frequently been discussed, and the principle upon which it rests investigated. The distinction between a claim for an injury to the soil, and to buildings erected upon it, appears to have been first noted by Sergeant Rolle, in his note to the case of Wilde v. Minsterly: 2 Roll. Abr. 564, tit. Trespass. The report is as follows: "If A, seised in fee of copyhold land closely adjoining the land of B, and A erect a new house upon his land, and any part of his house is erected on the confines of his land adjoining the land of B, if B afterwards dig his land so near to the foundation of the house of A, but not in the land of A, that by it the foundation of the messuage and the messuage itself fall into the pit, still no action lies by A against B, inasmuch as it was the fault of A himself, that he built his house so near the land of B; for he cannot by his own act prevent B from making the best use of his land that he can." "But it seems," the reporter adds, "that a man who has land closely adjoining my land cannot dig his land so near mine that mine would fall into his pit, and an action brought for such an act would lie." This dictum is cited as authority by Baron Comyns, Com. Dig., tit. Action on the Case for Nuisance, A.

It certainly seems paradoxical, at first view, that a man may recover for an injury done to his land by an excavation in the land of his neighbor, but not for an injury by the same act to the buildings erected upon the land. But it will appear, upon consideration, that the distinction is founded in reason and sound principle. The distinction and the grounds of it are thus stated by Gale & Whatley, Law of Easements, 215, 218: "The right to support from the adjoining soil, may be claimed either in respect