The C. & H. C. & I. Co. v. Tucker. followed by others engaged in the same calling or trade. But, as a general proposition, one "charged with negligence will not be allowed to show that the act complained of was customary among those engaged in a similar occupation, or those placed under like circumstances or owing similar duties. Such an offer is in effect to show, as an excuse for defendant's negligence, a custom of others to be equally neg ligent." Deering's Law of Negligence, § 9; Cleveland v. Steamboat Co., 5 Hun 523; Judd v. Fargo, 107 Mass. 264; Hinckley v. Barnstable, 109 Mass. 126; Miller v. Pendleton, 8 Gray, 547; Bailey v. N. H. Co., 107 Mass. 496; Littleton v. Richardson, 32 N. H. 59; Bridge Co. v. Fisk, 23 N. H. 171; Crocker v. Schureman, 7 Mo. App. 358. That others engaged in like business have been accustomed to disregard the rights of their neighbors can furnish no justification to the defendant to do so. The further claim of the company that it had the right to make the deposits in the places complained of because it was necessary to the successful conduct of its own buisness to so place them, seems no less wanting in substance. The effect is to measure the rights of the plaintiff, in his lands, and in the waters of Monday creek, by the convenience or necessity of the company's business. An owner of land in Ohio is not subject to any such narrow and arbitrary rule. If the injury complained of were merely a fanciful wrong, or produced simply personal discomfort, such as any dweller in a town is necessarily subjected to by reason of the operations of trade which may be there carried on, and which are actually necessary, not only, for the enjoyment of property, but for the benefit of the inhabitants of the town and the public at large, there might be no real ground of complaint; but where the result of the acts of one on his own land is a direct and material injury to the property and property rights of another, a very different question arises, and, in such case the maxim sic utere tuo ut alienum non laedas applies. Upon reason, we think the proposition sound, that where no right by prescription exists to carry on a particular business in a particular manner, at a particular place, and the natural and necessary result of the place The C. & H. C. & I. Co. v. Tucker. selected and the manner adopted, is to cause material injury to the property rights of another, it is not a sufficient defense to an action for damages to show that the locality where it is carried on is one generally in use by persons in such business, and the manner in which it is carried on is commonly adopted by others in such business, even though it appear that the use made of the land, while not the common and ordinary use of land as such, is not an unnatural nor improper one in and of itself, nor even an unusual one, and the proposition will be found sustained by abundant authority. From the scores of cases we are content to cite Tipping v. Smelting Co., 116 E. C. L. R. 608, 615, and same case, 11 H. of L. Cases, 642; Bamford v. Turnley, 113 E. C. L. R. 61. In the latter case defendant was the owner of land on which was clay well adapted to the making of brick. He dug the clay, moulded it, and proceeded to burn it on the land, to the damage of the plaintiff. The court held that an action for a nuisance would lie. Attention is specially called to the opinion of BRAMWELL, B. Attention is also called to Sherman & Redfield on Negligence, sections 733, 734. "It is a general principle that any person who, without authority, diverts the whole or any part of the water of a stream from its natural course, or interferes with its natural current, is responsible absolutely, and without any question of negligence, to any one who is entitled to have the water flow in its natural state." 66 Any use of the land near a stream, or of the water of the stream itself, which renders the water un wholesome, offensive, or unfit for the purposes for which it is used, is unlawful; and any riparian owner who is damaged by such unlawful acts has an action for his damages against the author of the wrong." If this view of the law be correct it is clear that the question as to the company's liability, in case damages were proved as the result of the defendant's acts, and the plaintiff's own conduct did not prevent a recovery, was, as held by the trial court, merely a question whether or not, in making and continuing the deposits the company's managers knew, or ought to have known as reasonable men, that the deposits The C. & H. C. & I. Co. v. Tucker. would be washed down by the stream, and might injure the plaintiff. No obstacle was placed by the court to the making of proof by the company touching this point. The offer of proof in regard to negligence did not embrace this idea, however, and was, therefore, too general to be of service to the jury. Besides this, it embraced propositions as to matters wholly immaterial, as heretofore shown. It was not error, therefore, to exclude the testimony. For like reasons there was not error in refusing to charge as requested. Some of the propositions embraced correct principles of law in the abstract, but were not, as stated, wholly applicable to the case made, and might have been misleading, inasmuch as they were in the line of the defendant's theory of the case, which, we think, was wrong. Nor was there error in the charge as given. The rule given the jury as to negligence was in strict consonance with the doctrine laid down by this court in Crawford v. Rambo, 44 Ohio St. 279. It is there held that "Where a riparian owner constructs an embankment upon his own lands, that occasions substantial injury to the lands of a neighbor upon the stream, and which might, at the time, have been anticipated by a man of ordinary prudence and intelligence, he is liable in damages for the injury as occasioned." The rule, we think, applies to the case at bar. The case of Ruffner v. Railroad, 34 Ohio St. 96, is cited as sustaining the company's claim. With due respect we think it fails to do so. The question was, whether, where a railroad company, authorized to propel its trains and operate its road by steam locomotives, an inference of negligence. arises from the mere fact that an injury to adjoining property was caused by sparks emitted by such locomotives, which question the court answered in the negative. The railroad company was authorized by the state to construct its railroad and operate it by locomotives, and the only way by which it was possible for the locomotives to be driven was by the creation of steam by means of fire, and sparks would necessarily follow. It was not only the natural and common way, but the only practical way. Negligence must be shown; it The C. & H. C. & I. Co. v. Tucker. will not be presumed. Hence, when the only fact present was that sparks had been emitted from the smoke stack which caused damage, the court would not infer that the fire was carelessly conducted, nor that the appliances of the railroad company were defective. But whether or not, at common law, the action could be maintained, there seems to be no question but that the acts charged against the defendant company, if done intentionally, constituted a nuisance punishable by the criminal statute, and that a right of action on the part of a person injured would follow. By the act of April 15, 1857, 1 S. & C. 880, "the obstructing or impeding, without legal authority, the passage of any navigable river, harbor, or collection of water; or the corrupting or rendering unwholesome or impure any water course, stream or water; or unlawfully diverting any such water course from its natural course or state, to the injury or prejudice of others," was declared a nuisance, made punishable by fine, and a right of action given to any person injured for civil damages. The act of March 27, 1876, 73 Ohio L. 87, provided "That if any person or persons shall intentionally throw or deposit, or permit to be thrown or deposited, any coal dirt, coal slack, coal screenings, or coal or other refuse from coal mines, into or upon any of the rivers, lakes, ponds, streams, or any place adjacent to the same, from which such coal dirt. . . . will wash into any of the rivers, lakes, ponds or streams of this state, every such person or persons shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined," etc., "and shall moreover be liable to the party or parties injured in treble the amount of damages by him, her, or them sustained." This act was codified the following year and made part of the penal code, 74 Ohio L. 264, under the head of "Nuisances," and is section 7 of that chapter. In this codification, which is now in substance, section 6925 of the Revised Statutes, the provision for treble damages is omitted. It does not follow, however, that civil damages may not be recovered. The acts charged in this. case against the company came within the statutory definition of nuisances. This legislation shows a legislative intent The C. & H. C. & I. Co. v. Tucker. to give the injured party a civil action. But, aside from this, it is settled law, we presume, that for injuries arising from a nuisance the injured party may have an action. Judge Cooley, in his work on Torts, 2d ed., p. 790, says: "it is sufficient to say of the authorities that they recognize the rule as a general one, that when the duty imposed by statute is manifestly intended for the protection and benefit of individuals, the common law, when an individual is injured by a breach of the duty, will supply a remedy if the statute gives none." See, also, cases cited, and Cardington v. Fredericks, 46 Ohio St. 442. If, therefore, the evidence showed that the statute had been intentionally violated, a statutory nuisance was shown to have been committed, and those engaged in producing it would be liable. Let it be assumed that the company, on account of its artificial character, could not be indicted and punished, yet the persons in its employ who did the acts could be held both criminally and civilly, and whenever the acts of an employee are such as to make him liable personally, the employer, whether a natural person or a corporation, may be held civilly where it is shown that the acts of the employee were performed in the line of his duty. So that, in this case, if the acts done would have rendered the employees amenable to the criminal statute, no rule of law forbids the reaching beyond them and visiting responsibility in civil damages upon the corporation itself. Its liability will be measured by the same rules of law which determine the liability of the employees. Applying this test we sup pose the rule to be well settled that persons of intelligence are presumed to have intended the natural consequence of their deliberate acts. If, therefore, the natural result of placing slack and refuse in the stream, or on the margin or bank, is that they will be washed down by heavy rains on to the lands of plaintiff, and this would be apparent to the ordinary observer, it is but just to assume, in the absence of a contrary showing, that the expectation was that it should so wash. And this state of facts would show that the company exercised its right negligently. But if such washing was VOL. XLVIII.-5 |