Hickey v. McCabe & Bihler

• Decision Date: 04 March 1910
• Citation: 30 R.I. 346,75 A. 404
• Parties: HICKEY et ux. v. McCABE & BIHLER et al.
• Court: Rhode Island Supreme Court

75 A. 404

30 R.I. 346

HICKEY et ux.

v. McCABE & BIHLER et al.

Supreme Court of Rhode Island.

March 4, 1910.

Exception from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Action by Thomas E. Hiekey and wife against McCabe & Bihler and others. Plaintiffs were nonsuited, and they except. Exception sustained.

Gardner, Pirce & Thornley and Henry W. Gardner, for plaintiffs.

Clifford S. Tower, for defendants.

JOHNSON, J. This is an action of trespass on the case, brought in the superior court for the county of Providence by Thomas E. Hiekey and Rose Hickey, his wife, against Joseph McCabe and Charles S. Bihler, both of Providence, copartners doing business under the firm name of McCabe & Bihler, and the New York, New Haven & Hartford Railway Company and the Providence Terminal Company, both corporations incorporated under the laws of the state of Rhode Island.

The first count in said plaintiffs' decimation, after describing the location of said property, sets out that the defendants were engaged in constructing a certain tunnel through or under land owned or occupied by the New York, New Haven & Hartford Railway Company and the Providence Terminal Company, or either of them; that said land was close to and adjoining the premises of the plaintiffs, and that the defendants, while so engaged in building and constructing said tunnel near the property of the plaintiffs, did explode and discharge dynamite for the purpose of blasting in the constructing and building of said tunnel, well knowing that said acts would probably result in injuries to the premises and buildings of the plaintiffs; also that the shock and concussion resulting from said explosions and discharge of said dynamite violently jarred and shook the said houses and other buildings of the plaintiffs, causing said walls and ceilings to become cracked and broken, chimneys to crack and sag, so that they became unsafe and infirm, and causing serious damage to heavy gas fixtures or chandeliers and to furnaces and furnace pipes in said houses, and that said houses were otherwise greatly jarred and shaken, and greatly lessened and depreciated in value, and rendered uncomfortable and unfit for habitation.

The second count in the declaration, after alleging ownership of the property, alleges that the defendants wrongfully and negligently kept and used on the premises of the New York, New Haven & Hartford Railway Company or the Providence Terminal Company a certain cement mixer operated by steam at high power for the purpose of mixing cement in large quantities to be used in the construction of the tunnel, together with certain boilers, furnaces, engines, and other machinery, well knowing that the said acts would probably result in injury to the premises and buildings of the plaintiffs.

The third count of the plaintiffs' declaration after describing the premises, alleges that the defendants, while engaged in building and constructing the tunnel, wrongfully, recklessly, and negligently dug away and removed the soil from the land of the New York, New Haven & Hartford Railway Company or the Providence Terminal Company, at a point close to and adjoining the premises of the plaintiffs, to a great depth, well knowing that said acts would probably cause damage to the premises of the plaintiffs, whereby, as a result of the said acts and the removal of said soil, certain parts of the surface of the plaintiffs' land did sink, cave in, and give way, causing the land to sink, and cave in, and a barn and house, situated upon one of the lots, numbered 171, to sink and sag with the surface of said land, causing the house and barn to become warped and cracked, and causing them to become unfit for use for the purpose for which they had been used, and causing the walls and ceilings of the house to become cracked and broken, etc.

The case was tried April 12, 1909, in the superior court with a jury. The plaintiffs introduced evidence of the blasting of rock in the tunnel by dynamite, and the frequency and severity of the consequent concussions in their houses close by, and of the resulting cracking and loosening of walls and ceilings, and other similar damage. They also introduced evidence of the noisy operation of the cement mixer and the resulting diminution of rents which the plaintiffs received from these houses. After the evidence offered by the plaintiffs had all been introduced, the defendants moved for a nonsuit, on the ground that no evidence had been offered of negligence on the part of the defendants in the premises. This motion was sustained by the court, and the plaintiffs were nonsuited. To this ruling of the court the plaintiffs took an exception, and the ease is now before this court upon the plaintiffs' bill of exceptions subsequently duly filed and allowed, in which this exception alone is relied upon.

The plaintiffs admit, for the purposes of this hearing, that no negligence on the part of the defendants was shown, but contend that they are liable, irrespective of negligence, for physical injuries to the plaintiffs' houses resulting from the dynamite blasting and other operations carried on by the defendants in the construction of the tunnel. The question before this court, therefore, is whether a property owner can recover for damages thus inflicted upon his property, when no physical substances have been thrown upon it, without proving negligence on the part of the defendants. It is well settled that negligence need not be shown in order to recover for damage done by matter thrown by blasting upon adjoining land. The rule is stated in 19 Cyc. 7, as follows: "It may be said to be the rule that one who, in blasting upon his premises, casts rocks or other debris upon the land of another, is liable for such invasion, regardless of the degree of care or skill used in doing the work." The same rule has been applied in numerous cases, of which the following are examples: Munro v. Dredging, etc., Co., 84 Cal. 515, 24 Pac. 303, 18 Am. St. Rep. 248; Georgetown, etc., R. Co. v. Eagles, 9 Colo. 544, 13 Pac. 696; Scott v. Bay, 3 Md. 431; McAndrews v. Collerd, 42 N. J. Law, 189, 36 Am. Rep. 508; Hay v. Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279; St. Peter v. Denison, 58 N. Y. 416, 17 Am. Rep. 258; Sullivan v. Dunham, 161 N. Y. 200, 55 N. E. 923, 47 L. R. A. 715, 76 Am. St. Rep. 274; Carman v. Steubenville, etc., R. Co., 4 Ohio St. 399; Tiffin v. McCormack, 34 Ohio St. 638, 32 Am. Rep. 408.

In Hay v. Cohoes Co., supra, the defendant had dug a canal upon its own land. In doing so it was necessary to blast rocks with gunpowder, and the fragments were thrown against and injured the plaintiff's dwelling house upon land adjoining. It was held that the defendant was liable for the injury, although no negligence or want of skill on its part was alleged or proved. In its opinion the court says: "The defendants had the right to dig the canal; the plaintiff the right to the undisturbed possession of his property. If these rights conflict, the former must yield to the latter, as the more important of the two, since, upon grounds of public policy, it is better that one man should surrender a particular use of his land than that another should be deprived of the beneficial use of his property altogether, which might be the consequence if the privilege of the former should be wholly unrestricted. The case before us illustrates this principle. For if the defendants, in excavating their canal, in itself a lawful use of their land, could in the manner mentioned by the witnesses, demolish the stoop of the plaintiff with impunity, they might for the same purpose, on the exercise of reasonable care, demolish his house, and thus deprive him of all use of his property. The use of land by the proprietor is not, therefore, an absolute right, but qualified and limited by the higher right of others to the lawful possession of their property." "The courts in some cases recognize a distinction between an injury caused by blasting debris directly upon the property of another, and by injuring it from vibrations in the air or earth, caused by the blast, holding that in the latter case it is necessary, to recover for the injury, to show that the work was done negligently or carelessly." 19 Cyc. 7.

It seems to be the general rule that damage from concussion or vibration of the earth or air, caused by blasts, may be recovered for, if negligence on the defendant's part is shown. This seems to be the rule even in the courts of New York and New Jersey, which hold that there can be no recovery for damages caused in this way without proof of negligence. Newell v. Woodfolk, 91 Hun, 211, 36 N. Y. Supp. 327; Page v. Dempsey. 184 N. Y. 245, 77 N. E. 9; French v. Vix, 143 N Y. 90, 37 N. E. 612; Booth v. R., W. & O. T. R. R, Co., 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552; Longtin v. Persell, 30 Mont. 306, 76 Pac. 699, 65 L. R. A. 655, 104 Am. St. Rep. 723. In the last-named case the court says in its opinion: "If the damage to plaintiff's property had been caused by fragments of rock thrown upon his property or against his dwelling house by the blasting which the defendants were doing, the authorities are practically unanimous in holding that the defendants would be liable, even though they exercised reasonable care in their operations. Cooley on Torts, 332. We can see no reason whatever for adopting that view, and at the same time holding that they are not liable for damages occasioned by the vibration of the ground or the concussion of the air. The agency employed in either case is the same and the danger as imminent in one instance as in the other."

Recovery has likewise been allowed where buildings have been injured or their occupation seriously interfered with by the jarring due to the operation of heavy machinery on adjoining land, or by smoke and noise due to business carried on there. McKeon v. See, 51 N. Y. 300, 10 Am. Rep. 659; Morton v. Mayor,...