Patrick v. Smith

• Decision Date: 15 September 1913
• Citation: 75 Wash. 407,134 P. 1076
• Parties: PATRICK et ux. v. SMITH et al.
• Court: Washington Supreme Court

134 P. 1076

75 Wash. 407

PATRICK et ux. v. SMITH et al.

Supreme Court of Washington, En Banc.

September 15, 1913

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by George Patrick and wife against Grant Smith and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Alfred H. Lundin, of Seattle, for appellants.

Brightman Halverstadt & Tennant, of Seattle, for respondents.

GOSE J.

This is a suit to recover damages flowing from an alleged depletion of water in the plaintiffs' well. The charge is that the water was lost in consequence of an explosion of a heavy blast of powder put off by the defendants. There was a verdict and judgment in favor of the plaintiffs for $250. The defendants are prosecuting the appeal. The material facts are these: The respondents, at the time the blast was exploded and at the time of the trial, owned a tract of land comprising nearly a half acre on the outskirts of the city of Seattle. It lies on the southerly slope of a steep hill which runs approximately east and west. The respondents' land has a slope from north to south of 26 degrees. The crest of the hill was about 84 feet above the point at which the blast was put off. The bottom of respondents' well was from 53 to 55 feet higher than the latter point. The top of the well was about seven feet lower than the crest of the hill. The well was about 500 feet from the point where the powder was exploded. The respondents completed the well on the 27th day of August, 1909. It has a depth of about 23 feet. A two-inch pipe was extended from a point about three feet above the bottom of the well to the respondents' house and yard. The respondents testified that the water had a depth of about seven feet from the time that the well was completed until the blast was exploded on the 22d day of June following; that the blast was put off about 10 o'clock, a. m.; and that at 3 o'clock p. m. the water had fallen below the service pipe, where it remained until the time of the trial, except during periods of heavy rain. They further testified that the water flowed through the service pipe in sufficient quantities for domestic purposes and for irrigating their land; that about one-third of their land was irrigated by gravity and the remainder with buckets; that they raised vegetables and Belgian hares for the market; and that the loss of the water destroyed their business. The respondents offered expert testimony which tended to establish that the explosion caused the depletion of the water. The appellants were contractors engaged in granding a right of way for the Oregon-Washington Railroad Company. In the process of their work they tunneled into the hill and made crosscuts into which they placed between 5,000 and 6,000 pounds of black powder, which they caused to be exploded on the 22d day of June, 1910. The respondents offered testimony which tended to show that the vibration of the earth was felt by persons one-fourth of a mile distant from the point of the explosion, and that a small house 1,325 feet distant from the latter point was thrown from its foundation. The respondent husband swore that he was about one-fourth of a mile distant from the point of the explosion and that 'the ground shook so hard I thought my house fall.' Another witness testified that the explosion 'apparently lifted the whole hill and dropped it back.' The blast was used to break the rock which formed the subsurface of the hill. Evidence was also submitted which tended to show that no shock had been felt from previous blasting which had been done at the same place.

The errors assigned are: (1) Error in instructions; (2) that inasmuch as the railroad company owned the land where the blasting was done, the well being fed by percolating waters the loss of the water is damnum obsque injuria; (3) that the putting off of the blast was not shown to have been the proximate cause of the injury; (4) error in admitting and excluding evidence; and (5) that the court commented on the facts.

1. The court instructed that: 'If you find from a preponderance of the evidence that the defendants exploded a charge of powder, as alleged in the second amended complaint, and thereby injured and damaged plaintiffs' well, as alleged in said complaint, and you further find that as a consequence of such injury and damage, if any, to plaintiffs' well, plaintiffs' land has been damaged and made less valuable as alleged in said complaint, you are instructed that defendants are liable for such damage to said land and it is not necessary to prove negligence on the part of the defendants.'

The complaint charges that 'an exceedingly large amount of powder' was exploded near the respondents' premises that as a result thereof 'an enormous amount of rock and earth were broken from place'; that the force of the explosion was so great that it caused the earth for a considerable distance from the point of the explosion to 'shake and rock violently'; and that the water in respondents' well was so depleted in consequence of the explosion as to practically destroy the value of their property. Error is assigned to the italicized portion of the instruction.

The authorities are agreed upon the question that one who in blasting upon his premises casts débris upon the land of another is liable in damages regardless of the degree of care or skill used in doing the work. 19 Cyc. 7. But where one in blasting upon his land, exercising reasonable care, causes a concussion in the air or a vibration in the earth, or both, to the injury of the premises of another, but casts no physical substance upon his property, the authorities are divided on the question of liability. One line of cases holds that the injured party is without remedy; the other line holds that an actionable wrong has been committed. We think the latter view is both logical and just. It seems illogical to say that if one puts off a blast of powder, a substance inherently dangerous, on his own premises, which causes a stone to be thrown through his neighbor's window, he is liable without regard to the degree of care used; but if it destroys his neighbor's house, but casts no physical substance upon the premises, he is immune from liability unless it can be shown that reasonable care was not exercised. Moreover, we think the doctrine of damnum obsque injuria, when no negligence has been shown, has been rejected in at least two cases in this court. Farnandis v. Great Northern R. Co., 41 Wash. 486, 84 P. 18, 5 L. R. A. (N. S.) 1086, 111 Am. St. Rep. 1027; Smith v. St. Paul, etc., Co., 39 Wash. 355, 81 P. 840, 70 L. R. A. 1018, 109 Am. St. Rep. 889. It has also been rejected in the following cases: Hickey v. McCabe & Bihler, 30 R. L. 346, 75 A. 404, 27 L. R. A. (N. S.) 425, 19 Ann. Cas. 783; Colton v. Onderdonk, 69 Cal. 155, 10 P. 395, 58 Am. Rep. 556; Fitzsimons & Connell Co. v. Braun, 199 Ill. 390, 65 N.E. 249, 59 L. R. A. 421; Gossett v. Railroad, 115 Tenn. 378, 89 S.W. 737, 1 L. R. A. (N. S.) 97, 112 Am. St. Rep. 846; Longtin v. Persell et al., 30 Mont. 306, 76 P. 699, 65 L. R. A. 655, 104 Am. St. Rep. 723, 2 Ann. Cas. 198; Bradford Glycerine Co. v. Manufacturing Co., 60 Ohio St. 560, 54 N.E. 528, 45 L. R. A. 658, 71 Am. St. Rep. 740. It has also received the emphatic disapproval of Judge Thompson in his valuable work on Negligence, vol. 1, p. 772.

Smith v. St. Paul, etc., Co., was a suit by a property owner against the railroad company for damages caused by the jarring of the earth by passing trains. The court said: 'The jarring of the earth of respondents' lots and the casting of soot and cinders thereupon, and the emission of smoke physically injuring property, are injurious physical effects to the corpus of respondents' property, which, we think, come within the scope of the term 'damaged,' as used in the constitutional provision.'

In Hickey v. McCabe, in addressing itself to this question, the court said: 'We see no valid reason why recovery should be permitted for damage done by stones or dirt thrown upon one's premises by the force of an explosion upon adjoining premises and not be permitted for damage resulting to the same property from a concussion or vibration sent through the earth or the air by the same explosion. There is really as much a physical invasion of the property in one case as there is in the other. The force does the injury in both cases, and the fact that it causes stones or other débris to be thrown upon the land in one case, and in the other only operates by vibrations or concussions through the earth or air, seems to us to be immaterial.'

In Colton v. Onderdonk, speaking to the same question, the court said: 'The defendant seems by his contention to claim that he had a right to blast rocks with gunpowder on his own lot in San Francisco, even if he had shaken Mrs. Colton's house to ruins, provided he used care and skill in so doing and although he ought to have known that by such act, which was intrinscially dangerous, the damage would be a necessary, probable, or natural consequence. But...