G.B. & L. Ry. Co. v. Eagles

• Decision Date: 04 March 1887
• Parties: G., B. & L. RY. CO. and others v. EAGLES.
• Court: Colorado Supreme Court

13 P. 696

9 Colo. 544

G., B. & L. RY. CO. and others v. EAGLES.

Supreme Court of Colorado

March 4, 1887

Appeal from county court, Clear Creek county.

The appellant company, having procured the right of way for its railroad through Georgetown, proceeded to excavate for its road-bed. In so doing, the removal of rock by blasting became necessary. While its employes were thus engaged, large pieces of rock and other debris were hurled into the air falling at considerable distances, and upon the premises of private parties, including plaintiff, living in the vicinity. Pieces of rock thus thrown fell upon the roofs of two of plaintiff's buildings, badly breaking them, and doing considerable damage. Besides this, plaintiff avers, and supports the averment with proof, that, by reason of the danger from falling missiles, tenants vacated his premises other persons refused to lease, the buildings remained vacant, and he was seriously injured by the loss of his usual rentals. To recover for these alleged damages, plaintiff brought this action. The jury returned a verdict for the sum of $275, upon which verdict judgment was duly rendered.

HELM, J.

It is conceded that the defendant company was in possession of the right of way lawfully, and that it was engaged in the prosecution of a lawful enterprise. It is further conceded that there was no actual intention to injure plaintiff. No direct evidence was offered to show negligence or carelessness in the blasting. And unless the fact of the missiles falling upon plaintiff's premises, and the consequent danger and damage, be regarded as proof of negligence, or create a presumption of negligence, we must assume that defendants proceeded with ordinary care and caution.

The principal question submitted for adjudication is as follows Was plaintiff, under the circumstances, entitled, as a matter of law, to recover? Defendants did not plead or prove any authority, either by contract or by compliance with law, to cast the fragments of earth and rock upon plaintiff's premises. Legal possession by the company of a right of way over adjacent land, and authority to construct and operate its railroad thereon, did not, of themselves authorize or sanction a direct intrusion and trespass upon plaintiff's private property. St. Peter v. Denison, 58 N.Y. 416; Hay v. Cohoes Co., 2 N.Y. 159; Scott v. Bay, 3 Md. 431.

Counsel for defendants rely in argument upon the proposition, thus stated, in their brief: 'If damage result from doing a lawful act in a lawful manner; no recovery can be had.' It is true that an act may produce both injury and damage, yet no right of action exists in favor of the party aggrieved. But the proposition of counsel must be accepted with the proviso that the act, or the manner of its performance, do not result in the invasion of the legal rights of another. This proviso is fairly implied by counsel's language; for, if such rights are directly abridged, the act and the manner of its performance cannt both be 'lawful.' In general, if a voluntary act, lawful in itself, may naturally result in the injury of another, or the violation of his legal rights, the actor must at this peril see to it that such injury or such violation do not follow, or he must expect to respond in damages therefor; and this as true, regardless of the motive or the degree of care with which the act is performed. See the following cases, and others cited therein: Hay v. Cohoes Co., 2 N.Y., supra; Tremain v. Cohoes Co., 2 N.Y. 163; Cahill v. Eastman, 18 Minn. 324, (Gil. 292;) Phinizy v. Augusta, 47 Ga. 260: Rylands v. Fletcher, L. R. 3 H. L. 330; St. Peter v. Denison, 58 N.Y., supra; Wilson v. New Bedford, 108 Mass. 261; Scott v. Bay, 3 Md., supra; Cooper v. Randall, 53 Ill. 24.

Plaintiff in the case at bar was entitled to the undisturbed possession, use, and enjoyment of his premises, and to the rents and profits therefrom. These were legal rights with which defendants could not in law so justify direct interference as to escape accountability. Perhaps on the ground of public policy an injunction to restrain the excavating of defendant company's roadbed would not have issued at the suit of plaintiff, even though blasting were necessary; but public policy could not exonerate the company from liability for private damage directly resulting from its acts. The company was bound at its peril to see that plaintiff's rights of property were not injuriously affected. In so far as these rights were interfered with by defendants' acts, such acts were wrongful; and, if the injuries complained of were the natural and proximate consequence thereof, plaintiff was entitled to recover.

'It is generally held that, in order to warrant a finding that * * * an act not amounting to wanton wrong is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the * *...