Louden v. City of Cincinnati

Citation106 N.E. 970,90 Ohio St. 144
Decision Date17 March 1914
Docket NumberNo. 13944.,13944.
PartiesLOUDEN v. CITY OF CINCINNATI et al.
CourtUnited States State Supreme Court of Ohio

90 Ohio St. 144
106 N.E. 970

LOUDEN
v.
CITY OF CINCINNATI et al.

No. 13944.

Supreme Court of Ohio.

March 17, 1914.


Error to Circuit Court, Hamilton County.

Action by Nancy Louden against the City of Cincinnati and others. The circuit court affirmed a judgment of the common pleas court, sustaining a demurrer to plaintiff's amended petition, and plaintiff brings error. Reversed.

The plaintiff filed an amended petition in the common pleas court of Hamilton county, which amended petition reads as follows:

‘Now comes Nancy Louden, the plaintiff herein, and by leave of court files this her amended petition herein, and says that the defendant the city of Cincinnati, is a municipal corporation under the laws of the state of Ohio; that the defendant the board of trustees, ‘commissioners of waterworks,’ Cincinnati, Ohio, is a legally constituted board appointed and qualified under and in pursuance of the laws of the state of Ohio, for the construction, enlargement, extension, and improvement and addition to the waterworks of the city of Cincinnati; that the defendant the W. J. Gawne Company is a corporation under the laws of the state of Delaware.

‘And plaintiff says: That during all the times hereinafter mentioned this plaintiff was, and has been ever since, and still is the owner in fee simple and in possession of lot No.-- in S. W. Hartshorn's subdivision, with a dwelling house thereon known and numbered as No. 3521 Humbert avenue in the city of Cincinnati.

‘That at the time of the doing of the wrongs hereinafter stated said dwelling house was a frame and plastered building, with stone and brick foundation and stone and brick chimneys, all occupied by plaintiff as her home and dwelling house.

‘That said defendant the city of Cincinnati, through its said board of trustees, ‘commissioners of waterworks,’ Cincinnati, Ohio, defendant contracted with and employed the defendant the W. J. Gawne Company to excavate and to construct for said city a tunnel for supplying water to said city.

‘That said defendants made the excavation for and construction of said tunnel along, through, and under the ground adjacent to the said dwelling house of the plaintiff.

‘That in the process of so doing said defendants loosened and removed the earth and rock by means of blasts of high-power explosives.

‘And that in so doing the said defendants treapassed upon and under and broke into the plaintiff's said land and dwelling house with force and violence by means of said explosions of great power and frequency, and in close proximity to plaintiff's said dwelling house.

‘And that the defendants thereby produced concussions and vibrations of the earth and air and of the material of this plaintiff's said dwelling house.

‘And the defendants thereby caused the foundations, walls, chimneys, ceilings, cistern, vault, and window glass of plaintiff's said house to crack and break and fall, and rendered said house unsafe for habitation and untenantable, and deprived plaintiff of the use of said house.

‘And that said defendants by said explosions continued through day and night caused terrifying and disturbing noises and vibrations of the ground and air and dwelling house of this plaintiff, and deprived plaintiff and her family of sleep and rest and of the enjoyment of her home and property, and thereby caused her great inconvenience, discomfort, suffering, injury, damage, and loss.

‘That the excavation for and construction of said tunnel was entirely within and under the management and control of the defendants, and said plaintiff had nothing to do with it, except to endure the injuries, suffering, losses, and damages herein complained of.

‘That by reason of the above described acts of the defendants the plaintiff has been damaged by the said defendants in the sum of one thousand dollars ($1,000).

‘Wherefore the plaintiff asks judgment against said defendants and each of them for one thousand dollars.

‘And plaintiff further prays for an order directed to the defendants the city of Cincinnati and the board of trustees, ‘commissioners of waterworks,’ Cincinnati, Ohio, and each of them, from paying over any money now in their hands to the said defendant the W. J. Gawne Company until after the claim of this plaintiff has been fully paid and satisfied. And plaintiff further prays for her costs, and for all other and further relief to which she is entitled.'

To this amended petition the defendants filed the following demurrer:

‘Come now the defendants herein and jointly and severally demur to plaintiff's amended petition, for the reason that same does not state facts sufficient to constitute a cause of action.’

The common pleas court sustained the demurrer to this amended petition and dismissed the action at plaintiff's costs. The circuit court affirmed the judgment of the common pleas court.



Syllabus by the Court

The use of high-power explosives in making excavations of rock and earth is a lawful method of accomplishing that purpose; but where dirt and stone are thrown by the force of the blast upon the property of another, or where the work of blasting is done in such proximity to adjoining property that, regardless of the care used, the natural, necessary, or probable result of the force of the explosion will be to break the surface of the ground, destroy the buildings, and produce a concussion of the atmosphere, the force of which will invade the adjoining premises, injuring the buildings thereon, and making them unfit and unsafe for habitation, the person or corporation making use of such explosives will be liable for the damage proximately and naturally resulting therefrom...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT