City of Muskogee v. Hancock

• Decision Date: 06 June 1916
• Docket Number: Case Number: 4763
• Citation: 1916 OK 598,158 P. 622,58 Okla. 1
• Parties: CITY OF MUSKOGEE et al. v. HANCOCK.
• Court: Oklahoma Supreme Court

1916 OK 598

158 P. 622

58 Okla. 1

CITY OF MUSKOGEE et al. v. HANCOCK.

Case Number: 4763

Supreme Court of Oklahoma

Decided: June 6, 1916

Syllabus

¶0 1. EMINENT DOMAIN--Public Improvements"--Damaged"--Right--to Recover. Under section 24, art. 2, of the Constitution, providing that "private property shall not be taken or damaged for public use without just compensation," a recovery may be had in all cases where private property is damaged in making an improvement that is public in its nature, such as a city sewer. It is not required that the damages shall be caused by trespass, or an actual physical invasion of the owner's real estate; but if the construction of the sewer is the cause of the damage, though consequential, the owner of the property damaged may recover.

2. SAME--Nature of Right--Constitutional Provision. The use of the words "or damaged," in addition to the word "taken," in the above section of the Constitution, indicates a deliberate purpose not to confine a recovery to cases where there is a physical invasion of the property affected, but to make the test of liability the fact that private property has been "damaged" for the public use, without regard to the means by which the injury was effected.

3. SAME--Damages--Right of Recovery. Where, in the construction of a public sewer in a populous city district, adjoining business property is damaged, the result of concussions or vibrations from explosions of powder or dynamite employed in the work of excavation, a recovery therefor will lie, without regard to the degree of care employed in discharging the blast.

Error from District Court, Muskogee County; R. C. Allen, Judge.

Action by Virginia Hancock against the City of Muskogee and another. From a judgment for plaintiff, the City brings error. Affirmed.

S. V. O'Hare and James C. Davis, for plaintiffs in error.

Charles A. Cook, for defendant in error.

SHARP, J.

¶1 Plaintiff's action is for damages to her four-story brick building, situated near and abutting upon Times alley in the city of Muskogee, which damages, it was claimed, were caused by the said city and F. P. McCormick, while engaged in digging or excavating a ditch for sewer in said alley near plaintiff's building. It was charged that, while engaged in said work, said defendants used large quantities of powder or dynamite, well known to them to be intrinsically dangerous; and that the violent concussions resulting from the explosions of said powder or dynamite violently jarred and shook the plaintiff's building, causing the walls to crack, and the plaster to fall loose therefrom, whereby her said building was greatly and permanently damaged. The trial resulted in a verdict for plaintiff in the sum of $ 500, to reverse which defendant city brings error.

¶2 The several assignments of error may, we think, all be brought within the compass of the legal question presented by the court's refusal to submit to the jury the defendant's requested instruction numbered 2. This instruction reads:

"You are instructed that unless you find by a preponderance of the testimony that the blasting done in said sewer was negligently or carelessly done, that excessive quantities of powder were used in said blasting, that proper care was not observed in the placing of said shots of powder, and that due caution was not used in the firing off of said shots of powder, then your verdict should be for the defendant."

¶3 The evidence discloses that the city, under a contract with McCormick, was engaged in constructing a sewer along the alley in the rear, and within some eight feet of plaintiff's building. At this point the ditch dug for laying the sewer main was some nine feet below the surface of the ground. In the work of excavation, dynamite or powder was used in blasting the rock or hard formation, the explosions of which caused the earth upon which plaintiff's building stood to shake and vibrate, by reason whereof the walls of said building were cracked and injured. If it were necessary to plaintiff's recovery that there be evidence that the blasting was carelessly or negligently done, then it was error not to give the instruction requested. If, on the other hand, the defendant's liability is not made to depend upon the question of negligence (of which carelessness is but a legal component), then the court did not err in refusing said instruction.

¶4 The general rule that no one has absolute freedom in the use of his property, but is restrained by the coexistence of equal rights in his neighbor to the use of his property, so that each in exercising his right must do no act which causes injury to his neighbor, is so well understood, is so universally recognized, and stands so impregnable in the necessities of the social state, that its vindication by argument would be superfluous. That the city, under the power conferred upon and possessed by it, had the rightful authority to cause the excavation to be made, does not thereby and alone relieve it of liability for damages to the owners of property abutting upon its alleys in which work of a public nature, such as the laying of sewer mains, is carried on. As said in a somewhat analogous case (Choctaw, O. & G. R. Co. v. Drew, 37 Okla. 396, 130 P. 1149, 44 L.R.A. [N. S.] 38):

"The fact that the law authorized plaintiff in error to acquire a right of way and, where necessary for the purposes named, additional grounds, did not authorize the construction of machine shops, roundhouses, cinder pits, and appurtenances of a like nature, wherever deemed proper, without regard to the property rights of others. Whatever the extent of the authority conferred by the act, it was accompanied by the implied qualification that the works should not be so placed as by their use to unreasonably interfere with, disturb, or destroy the peaceable and comfortable enjoyment of others in their property."

¶5 The excavation of the ditch by the means employed, within a few feet of large buildings in a populous city, was intrinsically dangerous, no matter how carefully and skillfully the explosions were conducted. The nature and power of dynamite or blasting powder as an explosive have been demonstrated by universal experience, and it is a matter of common knowledge that their use as an explosive is intrinsically dangerous, and of this the courts will take judicial notice, 17 Am. & Eng. Enc. Law, 909; Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 28 A. 32; City of Chicago v. Murdock, 212 Ill. 9, 72 N.E. 46, 103 Am. St. Rep. 221.

¶6 The authorities are in conflict as to the liability of one who by blasting with high and powerful explosives produces severe concussions and vibrations in surrounding earth and air, and so materially damages buildings belonging to others, irrespective of negligence on his part. On the one hand, it is claimed that, since recovery is permitted for damages done by stones or debris thrown upon one's premises by the force of an explosion upon adjoining premises, there can be no good reason in law why recovery should not be allowed for damages resulting to the same property from the concussion or vibration sent through the earth or the air by the same explosion; that there is really as much a physical invasion of the property in one case as there is in the other; and the fact that the explosion causes stones or other debris to be thrown upon the land in one case, and in the other only operates by vibrations or concussions through the earth and air, is of no consequence. The contrary rule, announced in some jurisdictions, does not appear to be predicated solely on the fact that there is in such case no technical trespass and that the injuries are consequential, but, by some courts, is rested upon the ground of public policy. According to this rule, if one engaged in blasting upon his own lands invades the premises of another, by throwing stones and debris thereon, he is liable for the resulting injury, but for any other injury, such as may result from concussions or vibrations, or otherwise, there is no liability, unless it is shown that the work was done negligently and that the injury was the proximate result of such negligence, and that, where the blasting was done according to the usual methods and with reasonable care, no liability attaches.

¶7 The better reasoned cases, and the more equitable rule, we think, incline to the view that proof of negligence is unnecessary to establish liability under circumstances such as presented in the case at bar. Whether one who sustains an injury to his property by the blasting of rock by the owner or occupier of coterminous premises, with powder or dynamite, is entitled to damages irrespective of the question of negligence in making or firing the blast, depends, in the view taken by many of the courts, upon the nature of the injury, it is said in Thompson on Negligence, section 764. Under the second proposition of said paragraph, the author says:

"Where the work of blasting is done in a situation where it is necessarily dangerous to the public, as in a thickly settled portion of a city, whereby a person is killed or injured, damages are recoverable for such injury or death, without proof of negligence, notwithstanding proof that the person or corporation so firing the blast employed skillful and experienced men, and exercised the highest degree of care. The reason is that in such a case the work itself is so inherently dangerous that the doing of it, no matter how careful, is of itself negligence; so that no amount of care in doing the negligent act will excuse the actor from the responsibility of the consequences which grow from it. The person firing the blast under such circumstances will be liable to an adjacent owner whose dwelling is thereby injured, whether the injury proceed from the impact of rocks thrown against it, or from atmospheric concussion."

¶8 Of this rule it is said in Sutherland on Damages, section 1010:

"There is a disposition to extend the scope of actions for

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