Shafer v. Wilson

Stewart, J., delivered the opinion of the Court. No point was made in the appellant’s brief, as to the admissibility of the articles of agreement between Wilson and Bond, referred to in the first exception. The question is immaterial to the determination of the issues involved, and it is unnecessary further to advert to it. The City Court committed no error in its ruling in the second and third exceptions, on the question proposed to the plaintiff, “as to the usual profits of his business prior to the commencement of the digging by Shafer,” and the answer of the witness thereto, “that they were from $15 to $20 per day.” The plaintiff claimed damage for the breaking up of his business by the acts of the defendant, and to enable the jury to form an estimate of his damage, it was necessary to show the actual extent of his usual profits before the defendant by his conduct had interrupted or broken up his business. ²⁷⁹ This proof was strictly legitimate, and the plaintiff could recover for any damage naturally and necessarily consequent upon the acts of the defendant.

Brown & Otto vs. Werner, 40 Md., 15 . This is not in conflict witli the rule excluding evidence as to the estimate of future profits ; which, in its nature, must be founded on speculation or mere conjecture. The question and answer in the fourth exception were immaterial, and it is not necessary to review the action of the City Court thereon. The fifth exception is to the granting of the plaintiff’s first and second prayers, and the rejection of the defendant’s second, fourth, fifth and sixth prayers.

Assuming there was evidence of the facts recited in the first prayer of the plaintiff, to be considered by the jury, and that the prayer was not liable to the special objections made thereto by the defendant’s counsel, and that the defendant had the right to change or improve his property according to his own judgment or fancy; the Court was not required to decide as to his liability, at all events, for the consequences of his acts ; but the prayer merely presented the question as to the negligence of the defendant, in the acts complained of, resulting in damage to the plaintiff, for which he could recover. The prayer, to this extent, asserts a clear proposition. If the defendant, in undertaking to make alterations or improvements upon his property, did so in a negligent manner, so as to damage the plaintiff, he was accountable to him for the same. There seems no doubt that an adjacent owner of land'] has no right to deprive his neighbor of the natural support ! afforded by his soil.

The authorities are somewhat conflicting, as to the extent of the right of the owner of any adjacent ground, built upon, to improve his own property, where he is under no disability (from grant of easement, prescriptive right or ²⁸⁰ necessity) to restrict him, although it may operate to injure his neighbor’s property. But it is agreed on all sides, that his right, whatever that may be, must be exercised with due care and skill, at his peril, to prevent injury to the adjacent owner. If his neighbor be injured through his negligenc, he can recover for the damage sustained. See Washburn on Eas., 437; Gale’s Law of Eas., 365.

An interesting review of the subject may be found in} Amer. Law Review, 1 to 22. This portion of the prayer is sound, and the plaintiff was entitled to recover damages for the breaking up of Ins business and the loss of the profits arising therefrom, to be ascertained by the jury, from the evidence — this would seem to be the reasonable extent of his claim; but estimated future profits, dependent upon contingency, “ during the residue'of his term,” extending through a period of nearly two years, could not be included — they were merely conjectural. It would be a hard rule, to hold the defendant answera- • ble for profits which might never have been realized by the plaintiff.

Upon such a principle, the defendant would, in ■truth, be held to insure the plaintiff’s profits throughout his term, -without effort on his part tó do anything to mitigate his loss — such a theory of assessing damages, is neither sound-'in law nor morals. There has been much difficulty in establishing a just and inflexible rule, to be applied in all cases to the ascertainment of damages; but it is settled, that mere conjectural or speculative damages, depending upon future contingency, cannot be recovered. Middlekauf vs. Smith, 1 Md., 341