Gardner v. Heartt

2 Barb. 165 | N.Y. Sup. Ct. | 1848

By the Court, Harris, J.

The maxim that a man must so make use of his own property as not to injure his neighbor, is undoubtedly to be so limited in its application as not to restrain the owner of property from a prudent and reasonable exercise of his right of dominion. If, in such an exercise of his right, another sustains damage, it is damnum absque injuria. It was therefore a proper question to be submitted to the jury in this case, whether the digging Which caused the slide was done with a cautious regard to the rights of others, or whether he who removed the earth, whoever he might be, was chargeable with negligence in the manner in which it was done. In this respect no complaint is made of the charge of the circuit judge. If it is made to appear that the injury was the consequence of the negligent manner in which the digging was conducted, then, as it was not done by the defendant himself, the next important inquiry is whether the defendant was so connected with the digging as' to make him answerable for the damages. Upon this point, also, I think the charge was unobjectionable. The circuit judge held that the defendant was liable if the digging had been done by his direction or permission. It is a general principle of the common law, that the owner of premises is bound so to control the Use of them as not to produce injury to others ; and if he permits another to place his premises in such a situation as to cause an injury, he will be answerable. This principle is clearly sustained and illustrated by Chancellor Walworth in delivering the opinion of the court for the correction of errors, in the case of The Mayor, &c. of New- York v. Bailey, (2 Denio, 445,) in which he cites with approbation the remark of Hooke, justice, in the case of Bush v. Steinman, (1 Bos. & Pull. 404,) that it shall be intended by the court that the owner has control over those who work upon his premises; and he shall not be allowed to discharge himself from that intendment of law by any act or contract of his own. If this principle be admitted, the defendant certainly has no right to complain of the charge of the circuit judge in this respect; for he expressly instructed the jury that the defendant was not liable if the act of removing the earth which caused the slide was a trespass, or if the defendant had not permitted it to be done. In this view of the case it became necessary for the plaintiff, before he could recover, to show, in addition to the defendant’s ownership and the negligent manner in which the earth was removed, the fact that the digging was permitted by the defendant. For the purpose of establishing this fact, the plaintiff offered in evidence the contract with Downing for filling in the lots belonging to the defendant and his associate. The evidence was, I think, admissible. Though slight in its character, still the existence of the contract, showing that the defendant had an interest in the work in which Henry, the assignee of the contract, was engaged, was a circumstance which might properly be considered in determining the question whether in fact the digging was going on with the defendant’s assent. For the same reason I think it was proper to allow the Day letter to be given in evidence. That letter proved at least the defendant’s knowledge of the digging; and, when taken in connexion with his reply, furnished some evidence, which the plaintiff had a right to have submitted to the jury, to show that the digging was permitted and approved of, by the defendant.

Nor do I think the circuit judge erred in refusing to nonsuit the plaintiff. It is insisted by the defendant’s counsel that to sustain this action, it was necessary for the plaintiff to make the same proof of his title to the lots, alleged to have been injured, as would be necessary to maintain ejectment. I do not so understand the rule of evidence applicable to such a case. In ejectment the question to be tried is whether the party claiming possession, or he who is alleged to withhold possession unlawfully, is really entitled to the possession. The plaintiff is bound to show the defendant in possession; and possession is always prima facie evidence of title. In such a case it is necessary that the plaintiff should overcome the presumption against his title arising from the adverse possession of the defendant. But not so, in an action founded on an alleged injury to real property, brought against a party making no claim to any interest in such property. There, if the plaintiff is in possession, such possession is available to him as evidence of ownership, to the same extent, as in the action of ejectment the defendant’s possession puts the plaintiff to the proof of his jus possessionis, There can be no doubt but that if the plaintiff in this case had proved himself in the actual possession of the lots alleged to have been injured, such proof would have been sufficient to support the action against a mere stranger or wrong-doer, who makes no claim either to title or the right of possession. But when, as in this case, the property is in the actual custody of no one, the constructive possession is in the general owner, and he may sue for an injury to the property as for an injury to his own actual possession. And, as against the defendant, I think the deed conveying the lots to the plaintiff in fee, was, prima facie, sufficient evidence of ownership.

The other ground upon which the motion for a nonsuit was founded has already been sufficiently noticed. It was not necessary for the plaintiff to show actual negligence on the part of the defendant himself. It was enough to show that he permitted Henry to remove the earth from his premises, and that this was done in a negligent manner. This was a question for the jury, and was properly submitted to them. The evidence to show that the lots were subject to an annual rent was clearly inadmissible. If such an incumbrance existed, the plaintiff was liable for the rent, and the damages sustained by him were none the less by reason of such incumbrance.

On the whole, after a careful examination of all the questions presented by the bill of exceptions, I cannot see that any legal principle has been violated in the decisions of the circuit judge, and therefore, although I might have been better satisfied with a less verdict, the motion for a new trial must be denied.