Scott v. Bay

Mason, J., delivered the opinion of this court. The first count in the present declaration clearly discloses- ⁴⁴³ a case of trespass quart clausum fregit, and not an action on the case. This count alleges, that the appellant caused great injury to the appellee by opening quarries and blasting rocks therefrom, whereby large quantities of rocks and stones were thrown upon the dwelling-house and premises of the appellee, breaking the doors, windows, &c., and thus depriving him of the quiet possession and enjoyment of his property. Such acts would constitute a forcible breaking of the plaintiff’s close, and the injuries resulting therefrom would be immediate and not consequential, and therefore trespass and not case is the proper remedy.

Upon all questions of pleading, Chitty has always been regarded as high authority in Maryland, and to avoid the embarrassment of the present question by a review of the numerous and apparently conflicting authorities cited by counsel, this court is willing to rest this case upon the law, as announced by Chitty, 1 vol., 117. The author there lays down the general principle to be, that c-an injury is considered as immediate when the act complained of itself and not merely a consequence of that act, occasions the injury.” This principle, as well as the illustrations given of it by Chitty, embrace a case like the one made by the first count. It was intimated in argument, that as the defendant was pursuing a lawful business, and as there was no design to perpetrate the wrong complained of, therefore the remedy should he case. Chitty, (page 119,) distinctly affirms, that the legality or illegality of the original act is not in general the criterion or test, whether the injury was immediate or consequential, or whether the remedy should be trespass olease.

And in the case of Taylor vs. Rainbow, 2 Hen. and Munf., 423, the defendant had negligently, but without design to injure, discharged a gun and wounded the plaintiff, who sued in case. It was held that trespass -was the proper remedy, and that it was immaterial whether the injury was committed wilfully or not. The intent, however, is a proper-subject for the consideration of the jury in determining the damages. 2 Stark., 213. ⁴⁴⁴ The second count is in part obnoxious to the same objecv tion. The averments, however, in that count, “that all persons on or about the said premises were kept in constant fear and jeopardy of their lives, rendering a proper attention to business full of fear and danger,” &c., would constitute a nuisance, and as such, would form a proper ground for an action on the case.

That the evidence discloses a case of an aggravated wrong to the rights and property of the plaintiff, cannot be denied. It is equally true that most of the plaintiff’s testimony disclosed acts, the damages resulting from which were recoverable in trespass and not in case. For instance, all those portions of the testimony showing the direct injury to the plaintiff’s property, such as the damage to the roof and walls of the house and grounds, present a case of immediate injury and constitute clearly a trespass. On the other hand it is equally clear, that the evidence which showed the value of the property to have been diminished for the purposes of renting and occupation, and that the plaintiff’s servants, through fear, &c., were prevented, to the plaintiff’s injury, from performing the labor for which they had been employed; and that the damage which subsequently resulted to the property by means of the water which passed through the hole in the roof, which was caused by one of the explosions, were consequential damages, and as such, recoverable in case.

Upon this state of the pleadings and evidence, the defendant prayed the court to instruct the jury, “that the plaintiff cannot recover in this form of action, because the acts and doings complained of, if any