Baltimore & Potomac Railroad v. Reaney

ALVEY, J., delivered the opinion of the Court. This was an action on the case instituted by the appellee, the plaintiff below, to recover of the appellants for injuries alleged to have been done to his house, by reason of the construction of a railroad tunnel by the appellants, under the bed of Wilson street, in the City of Baltimore. The house alleged to have been injured is situated on the southwest side of Madison avenue, and adjoins the house on the corner of that avenue and Wilson street, and stands twenty-four feet and four inches northwest of Wilson street; the two houses being joined together by iron girders and other secure fastenings. These two houses, and two others, forming a row of four, were built by Ogle, the party from whom the appellee sub-leased; and at the time they were built their proprietor had no notice, nor reason to suppose, that Wilson street had been, or would be, dedicated to the use of a railroad tunnel.

The injury alleged to have been done to the house, by the excavation of the street and the construction of the ¹²⁸ tunnel, was the weakening the foundation, causing fhe walls to crack, and a settling out of plumb-line. Exception was taken at the trial below, by the appellants, to the granting of the second, third and fourth prayers offered hy the appellee, and to the refusal to grant the third and fifth prayers offered by the appellants. It is on these prayers that the questions arise to be decided on this appeal. 1. By granting the appellee’s second prayer, the jury were instructed, that if they believed from the evidence the appellants, in constructing the tunnel under Wilson street, near the appellee’s house, unnecessarily took up the pavement of said street, and excavated the same for the purpose of constructing the tunnel, and,.by means of such excavation, damaged the appellee’s house, hy weakening its foundation and walls, and causing them to crack, and break, then the appellee was entitled to recover.

To this instruction the appellants urge several objections. They insist that it is erroneous, because it entirely leaves out of consideration the authority under which they were acting in constructing the tunnel, and also omits all question of negligence in excavating the street, but makes the right to recover depend upon the fact, whether the appellants unnecessarily took up the pavement of the street, and excavated the same; thus making the liability of the appellants to depend on the necessity of doing an act which was authorized to he done by competent public authority. The instruction was also specially excepted to, upon the ground that there was no evidence in the cause from which the jury could find that the pavement of Wilson street had been unnecessarily taken up, in making the excavation for the tunnel. With respect to the question whether the pavement was unnecessarily taken up and the street excavated, the ordinance of the city provided that “the tunnel or tunnels .mentioned and provided for in the preceding section, shall ¹²⁹ be so constructed and arched as to leave uninjured and secure, the streets 'under which said tunnels shall be made; and if in constructing the said railroad across or under any of the streets or alleys mentioned in this ordinance, it shall become necessary to take up any pavement on said streets, or excavate the same, then, and in that event,” the appellants should restore the surface of the streets to the same condition in which they were before.

Upon a proper construction of this ordinance, it is very questionable whether the liability of the appellants could he made to depend upon the degree of necessity that might exist for taking up the pavement and excavating the street in making the tunnel. Who is to determine the question of necessity, or the degree of necessity, that would justify the removal of the pavement, and the making the excavation, if not the appellants, to whom the authority was given so to construct their tunnel? But without deciding this question, wo are clearly of opinion, upon a careful examination of the record, that there was no evidence upon which the jury could have found that there was no necessity for the removal of the pavement and the excavation of the street. The only evidence upon the subject was thatf offered by the appellants, which was to the effect that no proper care ox precaution had been omitted in the construe- \ tion of the tunnel at the particular point, purposely to > avoid all injury to the houses mentioned.

Indeed, the counsel for the appellee do not pretend that they offered any evidence whatever upon the subject, but they insist that, inasmuch as the appellants offered affirmative proof of the fact that all due care was taken, it was competent for the jury not only to discredit or disbelieve the witnesses, but to find a different or a reverse state of facts from that testified to by them, and that without any other evidence upon which to base such finding. The evidence upon this subject was all one way ; and to infer that the pavement was unnecessarily removed from the simple fact that wit ¹³⁰ nesses had testified that all proper care had been observed in executing the work, is a mode of reaching conclusions that cannot be indulged. It was the privilege of the jury to refuse- credit to the appellants’ witnesses ; but while they might think proper to discard the testimony given by those witnesses, they could have no right to conclude as to a state of facts, to support which there was no evidence before them. Nor can we presume, for a moment, that the jury did so conclude; but, on the contrary, we should rather presume that they were governed by the unimpeached and uncontradicted evidence in the cause.

But, with respect to the- other objections to the instruction, that of ignoring reference to the authority under which the appellants were acting, and omitting all question of negligence in making the excavation for the tunnel, they present the question, whether the omissions in those particulars deprived the appellants of any valid defence to the appellee’s claim to recover. If there had been negligence in the - execution of the work, resulting in the injury complained of, then, it is clear, the appellants would be liable ; for-the principle is well settled, that if a party, by carelessness in making an excavation in his own ground, carrses the fall of, or injury to, a. house erected on the land adjoining, he is liable in damages for the injury. Dodd vs. Holme, 1 Ad. & Ell., 493; Wyatt vs. Harrison, 3 B. & Adol., 867; Humphries vs. Brogdon, 12 Q. B., 139. Or, if a party acting under lawful authority inflict injury, in the manner of executing the authority, as by unskilfulness or negligence, he is liable for the consequences.

Leader vs. Moxon, 3 Wilson, 461 ; Jones vs. Bird, 5 B. & Ald., 831; Lawrence vs. Gt. North. Rail. Co., 16 Q. B., 653; Manly vs. St. Helen’s Canal & Rail.

Co., 2 H. & N., 840; Add. on Torts, 727. In answer to the objection by the appellants to the instruction, that it omitted all reference to the authority under which the tunnel was made, it is contended by the ¹³¹ counsel of the appellee, that there was really no proper authority in the appellants to construct the tunnel under the streets of the city; and if they were right in this position, it would follow as a matter of course that the appellants could have no legal justification for any injury that may have resulted from the construction of that work. But we are of opinion that the appellants had ample authority to tunnel the streets, derived both from the city and State Legislature. The appellants’ original charter of 1853, chapter 194, manifestly did not contemplate the use of the streets of the city for the purposes of a tunnel; hut the Mayor and City Council, by ordinance of the 29th of May, 1869, authorized such use, as far as they were competent, and prescribed the manner of its exercise.

Whether the Mayor and City Council were competent to confer any such power in the use of the streets, is a question that need not now he decided ; as the Legislature, by the Act of 1810, chapter 80, sanctioned and ratified the authority given by the city ordinance. It is true, this latter Act of 1810, being an amendment of the appellants’ original charter, contains no express terms of ratification, hut the terms used, in the 1th section, are equivalent to terms of express ratification. The authority given by the city to make the tunnel is recognized, and there is power given to charge additional freights and tolls for its use. This is a clear ratification, or grant of authority, at least by implication; and it is settled that such authority may he granted by implication.

Springfield vs. Conn. Rail. Co., 4 Cush., 63 . The appellants having authority to construct the tunnel, j they contend that any damage that the appellee may have suffered to his house, by reason of the excavation of the street, is damnum absque injuria, and that no right of recovery exists unless it he shown that the power delegated to the appellants has been illegally or negligently exercised.

To this, however, we do not assent. ¹³² In this case, the jury have found that the property of the appellee has been damaged to the extent of three thousand dollars ; and it would be a reproach to the law, if the Courts were required to determine that it was a case of damnum absque injuria, and that there was no redress for such a wrong. There is no reason why the appellee should be required to bear such a.loss ; it not being for any municipal benefit, but for the benefit of a private railroad corporation, with which he is no more concerned than any other individual of the State. If he could be required to bear this loss of three thousand dollars, he could and would be required to bear the loss, if it were to the full extent of the value of his property; and thus a party might have his house utterly destroyed, and yet be without a remedy to obtain redress. Such is not the state of the law, as applicable to a case like the present.

As against the municipal government, in the careful exercise of its right and power to grade, change and improve the street, there could be no cause of action for any unavoidable injury done; but as against the ajrpellants, a private corporation in nowise connected with the municipal government, obtaining authority to use the streets in an extraordinary manner, for its own private purposes and profit, the case is quite different. As against such party, the owner of a plot of ground, with a building thereon, bounding on a street, is entitled to the natural support which the bed of the street may afford to the foundation of his house. And notwithstanding authority may have been obtained both from the city and State Legislature, to make the extraordinary use of the street, .yet that authority must be exercised at the peril of the party to whom it is delegated ; and if any injury accrues to private property in the exercise of the power the party producing it must be held liable. If, as we have seen, the injury be produced by the careless or negligent exercise of the authority, then there can be no question of the lia ¹³³ bility; but if due care be exercised, and tbe injury is the natural or inevitable result or consequence of the doing the act authorized to he done, then, in a case like the present, the party doing the act and producing the injury, must indemnify the sufferer.

That there was no negligence or want of care in doing the work, is no answer in a case like this. If the injury was the inevitable result of making the tunnel, then to the extent that the appellee’s property was actually injured, it was substantially taken for the use of the appellants’ road, and, of course, should he paid for. It is not to he assumed that either the city authoi’ities or the Legislature of the State, intended that the authority delegated by them should be exercised irrespective of the rights of private property ; and if it were clear that they did so intend, it is far from being certain that such a purpose could be accomplished. Gardner vs. Village of Newburgh, 2 John.

Ch. Rep., 162; Eaton vs. Boston, Concord, & Montreal Rail.