I.
It may be. conceded at the outset that the city would not have been answerable in this.action if it were bottomed on thе mere fact that consequential injuries have resulted to plaintiffs because of the grading of the street by the contractor Ilalpin. The authorities on this point, in this State, as well as elsewhere, are numer
But in this case the action is nоt for consequential damages, but for a direct and positive injury. The contractor Ilalpin, who in this behalf, was the servant of the city, did not “keep within the limits of the street.” On the contrary, he trespassed upon and invaded private property. And fоr this the city is clearly answerable, and to it in such circumstances the doctrine of urespondeat superior” applies. If the contractor, while confining himself to the area and boundaries of the street, had performed the work assigned him with reasonable carе and skill, and in consequence thereof some indirect, some consequential injury had resulted therefrom, no action would lie, and plaintiffs would be without remedy. And to their case, according to the authorities, wrould be applicable that sеlf-contradictory maxim of “ damnum absque injuria.” This case, however, involves no such circumstances as will admit of invoking that maxim ; the injury, as before stated, being the imme-. diate result of the wrongful act. And we think that the liability of the city and of-the .contractor may well be placed on either or both of these grounds : 1st, That the injury resulted from the work not being done with reasonable
What is reasonable care and skill, is, of course, largely dependent on the surroundings of each particular case, and is, therefore, a relative term. But we cannot regard that as such cаre and skill, which unnecessarily, not to say recklessly and wantonly, dumps on the premises of an adjoining proprietor, largе quantities of earth, covering those premises many feet in depth, crushing in the walls of and destroying a dwelling house, situated somе twenty feet from the street. If, upon making the fill required by the contract, it became apparent that the work could nоt be completed without direct injury, such as before mentioned, to an adjoining proprietor, unless a wall were built to restrain the earth within the limits of the street, then such wall should have been built, and reasonáble care and skill, as applicablе in this connection, required that wall’s construction.
The fact that statutory authority existed for doing the work, did not carry with it a power to directly injure or destroy the property of an adjoining proprietor. If it were necessary to make a fill in order to grade a street, and the embankment were required to be raised so high that it would become necessary, as is sometimes the ease, to make cross-embankments, or supports of either earth or stone in order to keep the principal embankment in place, no one would doubt that before the land of adjoining proprietors could bе occupied by such cross-embankments? either the consent of such proprietors would have to be obtained, оr else proper legal proceedings taken to condemn the required land. And there can be no essential diffеrence in principle between occupying one’s land with earth deposited there as the incident of making the principal embankment, and doing the same thing by making a cross-embankment. If the owner of a private lot should decide to fill it with earth, the fact that he had the legal and undoubted right thus to fill his own lot up to a certain
II.
Moreover, section 16 of article 1 of the constitution of 1865, provided that: “No рrivate property ought to be taken or applied to public use, without just compensation.” Here the city and its sеrvant took the property of plaintiffs within the meaning of that,section. The taking of property within that prohibition may be еither total or absolute, or a talcing pro tanto. “Any injury to the property of an individual which deprives the owner of the ordinary use оf it, is equivalent to a taking and entitles him to compensation.” “ So a partial destruction or diminution of value of property by an act of the government which directly and not merely incidentally affects it, is to that extent an appropriation.” Cooley Const. Lim., (4 Ed.) 680, et seq.; Pumpelly v. Green Bay Co.,
III.
So far as concerns the judgment rendered against plaintiffs on the tax-bills, we are unable to discover what relevancy such a judgment could have in the present action, since this action is for unliquidated damages, and could not have.been pleaded in answer to that suit. Mahan v. Rose,
Motion for Rehearing Overruled.