Watson v. Mississippi River Power Co.

• Decision Date: 09 February 1916
• Docket Number: 30755
• Citation: 156 N.W. 188,174 Iowa 23
• Parties: JOHN W. WATSON, Appellee, v. MISSISSIPPI RIVER POWER COMPANY, Appellant
• Court: Iowa Supreme Court

156 N.W. 188

174 Iowa 23

JOHN W. WATSON, Appellee, v. MISSISSIPPI RIVER POWER COMPANY, Appellant

No. 30755

Supreme Court of Iowa, Des Moines

February 9, 1916

Appeal from Lee District Court.--HENRY BANK, Judge.

ACTION at law for damages. There was a judgment for plaintiff, and defendant appeals. The facts are sufficiently stated in the opinion.

Affirmed.

Blake & Wilson, Hazen I. Sawyer and J. O. Boyd, for appellant.

Hughes & McCoid, for appellee.

WEAVER J. EVANS, C. J., DEEMER and PRESTON, JJ., concur.

OPINION

WEAVER, J.

The plaintiff is, and during the time mentioned in his petition was, the owner of two lots with buildings and improvements thereon, in the city of Keokuk, Iowa. The defendant, having been granted authority therefor by act of Congress, has been engaged in constructing a dam across the Mississippi River at that place, for the purpose of providing electric power to be sold to users thereof within the area reached or to be reached by its cables and supply lines. Among other things, the plan of this improvement contemplated the erection of a power house in connection with the dam, at a point about 1,000 feet east of the west bank of the river on which the city is built. It also contemplated the construction of certain locks, spillways and a canal. To do this work according to the plan, required the blasting and removal of a very large amount of rock from its natural bed under the river, much of it to the depth of 25 feet. The work of this rock excavation was let to a contractor, the Hydraulic Engineering Company, which performed the service. The work was of such magnitude as to occupy two years or more in its completion, in the course of which, heavy blasts were fired, from day to day. The property owned by plaintiff is situated upon the bluff or highlands, one tract being 4 blocks and the other 14 blocks west of the river.

In his petition, plaintiff alleges that the blasting by a series of violent explosions was continued throughout a period of two years or more, and was of such powerful character that the concussion or jar thereof broke the glass in the windows of his buildings, cracked the walls, loosened and injured the plastering and otherwise injured those structures, and that the damage suffered therefrom was $ 3,000. He characterizes the acts of defendant as wrongful and negligent, and demands judgment for the recovery of his alleged damages. The defendant's answer is a denial of all the allegations of the petition.

The evidence introduced in the case is not presented by the abstract, except by way of a brief general recital of the matters we have already stated and the further statement that both plaintiff and defendant introduced evidence tending to support their respective claims under the issues made by the pleadings; that there was no proof that rock or other material was cast upon plaintiff's premises by the blasts; and that the injury complained of was caused solely "from the air concussion or earth vibration" set in action by the explosion of the blasts.

The issues having been submitted to a jury, a verdict was returned for the plaintiff for damages assessed at $ 500. A motion by defendant to set aside the verdict and for new trial having been overruled, judgment was entered for plaintiff for $ 500 and costs, and defendant appeals.

I. The initial proposition by appellant is that, in its charge submitting the case to the jury, the court erred in failing to instruct upon the law of negligence as applicable to this controversy. It is said that the plaintiff charged negligence in the blasting, that such allegation was material to his right to recover damages, and that, without proof of the want of due care on defendant's part, a verdict for plaintiff cannot be sustained.

It is true that the plaintiff did charge that the blasting was done negligently; and, if we are to hold that a showing of negligence was essential to his right to recover, then the exception is well taken and appellant is entitled to a reversal. But our practice act provides (Code Section 3639) that a party shall not be required to prove more than is necessary to entitle him to relief asked for; and if, in this case, plaintiff was not required to allege negligence in order to state a cause of action, and did allege facts other than negligence upon which, if true, he was entitled to damages, and introduced evidence tending to support the same, then the failure to prove negligence would not be fatal to his right of recovery, and the failure of the court to instruct upon the subject of negligence would not be prejudicial error. Engle v. Chicago, M. & St. P. R. Co., 77 Iowa 661, 37 N.W. 6; Swiney v. American Express Co., 144 Iowa 342, 348; Ware v. Anderson, 107 Iowa 231, 234, 77 N.W. 1026. In the case at bar, the plaintiff alleged that the acts complained of were wrongful, as well as negligent; and, under the rule above stated, our inquiry is reduced to the single question whether injuries to property caused solely by jar, concussion or vibration of earth and air, produced or set in motion by blasting, constitute, under the circumstances stated, any wrong for which the law affords a remedy.

This question has had the attention of the courts in several other jurisdictions, but thus far, we have had no occasion to pass upon it in the direct and concrete form presented by the record in the present case. An examination of the precedents develops a divergence of judicial opinion. There is a class of cases which, according to appellant's contention, hold that, without allegation and proof of negligence, damages of the kind suffered by the appellee herein cannot be recovered; while others adhere to the doctrine that a showing of negligence is not essential to the liability of a party who uses the dangerous agency of powerful explosives in such place or in such manner that the natural and proximate result thereof is injury to the person or property of another. Some of the cases cited by appellant appear to go to the full extent of the rule which appellant asks us to approve. For example, the Alabama court, in Bessemer v. Doak, 152 Ala. 166, 44 So. 627 (12 L. R. A. (N. S.) 389), after some discussion of the authorities, indicates its approval of the rule that:

"If one, in blasting upon his own lands, invades the premises of his neighbor, by throwing stones and debris thereon, he is liable for the resulting injury; but for any other injury, such as may result from the mere concussion of the atmosphere, sound, or otherwise, there is no liability, unless it is shown that the work was done negligently and that the injury was the result of negligence, and not the result of blasting according to the usual methods and with reasonable care."

Such seems also to be the rule in New York. Booth v. Rome, etc., Terminal Co., 140 N.Y. 267, 35 N.E. 592; Benner v. Atlantic Dredging Co., 134 N.Y. 156 (17 L. R. A. 220, 31 N.E. 328); Holland House v. Baird, 169 N.Y. 136, 62 N.E. 149; Page v. Dempsey, 184 N.Y. 245, 77 N.E. 9. The proposition also finds some support in Simon v. Henry, 62 N.J.L. 486 (41 A. 692); and in MacGinnis v. Marlborough & H. Gas Co., (Mass.) 220 Mass. 575, 108 N.E. 364. The Michigan case cited by appellant (Mitchell v. Prange, 34 L.R.A. 182) does not appear to us to be in point.

It will be noted, upon reading the cases to which we have referred and others of their class, that, with few exceptions, they refer to the effect of the use of explosives under the authority of or contract with the general government, or in the construction of railways or canals by corporations endowed by the state with the power of eminent domain, or in excavating streets or highways under the authority of the state or local municipality; and without conceding what is claimed by way of exemption from liability even in such cases, it may well be admitted that the effect of such circumstances is a question upon which there is room for plausible argument in support of the theory. The appellant herein, though clothed with license or consent from the Federal government to dam the Mississippi River, a navigable stream, is not in position to claim the immunities, if any, of a government contractor; and although it proposes to supply electricity to the public within the territory which its lines may cover, it is, to all intents and purposes, a strictly private enterprise for private profit. And even though it be clothed with power of eminent domain, that does not include authority to take or to destroy private property without compensation.

That what we may call the New York rule is not in harmony with the greater weight of authority is, we think, clearly demonstrable. The following are illustrative cases. In a recent Ohio case, the city of Cincinnati had let a contract to excavate a tunnel under its streets for use in supplying the city with water. A lot owner brought action against the city and the contractor, alleging that, in doing the work, high power explosives were employed, with the result that the concussions and vibrations so produced injured and destroyed plaintiff's property. No negligence was alleged, and the defendants demurred to the petition. The trial court sustained the demurrer; but, on appeal to the Supreme Court, the ruling was reversed. The court states the question to be whether the owner of property may make use of powerful explosives on his own premises in the accomplishment of a lawful purpose, provided he uses due care, notwithstanding the fact that the necessary or natural or probable result thereof is to injure or destroy adjacent property. This, it will be seen, is precisely the proposition we have now before us. In sustaining the right of action, the court says:

"There are, of course, two very important considerations...