Tbe important question in this ease is whether the defendants, who were doing certain work in connection with the building of a lock in the Mississippi River under contracts with the United States Government, are entitled to the same immunity from suit as the Government itself. Plaintiffs’ petition alleged that in the course of the work the defendants negligently used high explosives in blasting, thereby damaging plaintiffs’ property located not far from the site of the construction being carried on. The question of negligence, however, has disappeared from the case, under the doctrine laid down in Watson v. Mississippi River Power Co.,
The case was tried upon an agreed stipulation of facts. It was there agreed that the defendants were constructing New Lock 19 in the river, pursuant to a contract with the United States Government, and that in the course of the work it was necessary to remove earth and rock, by blasting with dynamite. It was further stipulated that the Government was proceeding-under authority of the Congress, and that in letting the contract it was performing a governmental function; that is, the improvement of navigation on the Mississippi River; that the defendants were acting as independent contractors, and that they performed as provided in the contract and the plans and specifications thereof, and upon completion the work was ac *562 cepted by the Government as being in compliance with the contract. The method used in blasting was submitted to the Government and approved by it, and became a part of the plans and specifications of the contract, and the work of blasting was performed under the inspection of governmental employees, and there was no deviation from the contract in doing said blasting.
The stipulation further agreed that plaintiffs’ dwelling was damaged by the blasting, solely by concussions of the atmosphere and vibrations of the earth, without any negligence on the part of the defendants, in the amount of $1600; and that no negligence of the plaintiffs contributed to the injury. Other provisions of the stipulation are not important in our view of the case.
I. The defendants contend that the plaintiffs are not the real parties in interest, because they had made a settlement with an insurance carrier which, defendants think, thereby became entitled to complete subrogation as to their claim. We shall not go into detailed discussion of this question, since we prefer to decide the question upon its substantial merits concerning immunity, further than to say we think defendants’ contention unsound on the point first stated.
II. The question of the extension of governmental immunity to' an independent contractor who agrees to do certain work required by the sovereign for its purposes is the important and governing one in the case. Here, the United States wished to build a lock for the purpose of improving navigation in the Mississippi River, an undoubted proper governmental activity. It chose to do this by contract with the defendants; and in all their activities they were within the terms of the contract, and the work was approved and accepted by the Government upon its completion. They were in no manner negligent. All these things are determined by the stipulation upon which the case was tried.
But the plaintiffs contend that the governmental immunity from suit should not be extended to independent contractors. They urge that the immunity of the sovereign is at best a survival from the days when it was considered that “the King can do no wrong”, and should be strictly limited. They rely much upon the fact that the damage done here was by an inherently *563 dangerous instrumentality, for which the defendants would ordinarily be liable even without negligence. Cases extending the immunity which do not involve the use of such instrumentalities they think are not in point. The proposition in its narrow aspect is new in Iowa, and is an interesting and important one.
III. We may at the outset eliminate the Federal Tort Claims Act from consideration. The question is referred to considerably in the arguments, but the ultimate conclusion of both parties seems to be that it is not important here. If the Government could be sued under the Act, perhaps the defendants-contractors could also be held to answer. But the Act, as its title indicates, is concerned with torts, and does not extend to cases where the rule of “liability without fault” is the only basis for recovery. Dalehite v. United States,
IV. Likewise, we may consider it established, at least so far as our decision here is concerned, that if there had been negligence on the part of the defendants they could claim no share in governmental immunity from suit. Many eases have so held. Grennell v. Cass County,
The reason the immunity does not extend to the contractor when he is guilty of negligence is that he is then beyond the terms of his contract. No Government has the right to author
*564
ize an independent contractor to proceed negligently in carrying out his contract with it, and it will not be presumed that it has done so. Hopkins v. Clemson Agricultural College,
V. The narrow question before us is whether the independent contractor is entitled to share the immunity o£ the sovereign with which he has contracted if he carries out his operations in accordance with the terms of the agreement and without negligence, even though the procedures required by the contract and approved by the Government may result in incidental damage to third persons. The plaintiffs think that he is not, -because of the use of a dangerous instrumentality — dynamite — which, although authorized by the contract and approved by the Government inspectors as a method of operation, resulted in injury to their property which would have been compensable under the rule of liability without fault. In supporting their contention they cite many cases. Many of these are negligence cases which clearly come under the principle discussed in Division II above, -and do not aid us here. In this category are Grennell v. Cass County, Thompson Caldwell Construction Co. v. Young, both supra, and other cases relied upon to some extent by the plaintiffs. Hopkins v. Clemson Agricultural College, supra, turns upon the holding that the college was not an arm of the State and was doing the work for itself rather than for the Government.
Alabama v. King & Boozer,
The authority most relied upon by the plaintiffs-appellees, is Asheville Construction Co. v. Southern Railway Co., 4 Cir.,
But a considerable doubt is thrown upon the basis for the court’s decision in the Asheville case by the- nature of the authorities cited and quoted from by it in supporting- its holding that the immunity of -the road district, if such it had, did not extend to protect the contractors. The opinion does not mate it clear whether the plaintiffs relied upon alleged negligence of
*566
the contractors, although it cites authorities for the proposition that they were liable irrespective of that question. But it gives, as the basis for its holding of nonimmunity of the contractors, cases which were in fact negligence cases; that is, cases in which immunity was denied contractors with governmental bodies becaqse of negligence in carrying out their contracts. There is a somewhat extensive quotation from Thompson Caldwell Construction Co. v. Young, supra, but there the contractor was clearly held to be negligent. Hopkins v. Clemson Agricultural College, supra, turned upon a tort committed by the defendant with the holding that the college was: not a part of the state and was acting for itself. St. Peter v. Denison,
The exact question before us here has not previously been decided in Iowa, although our cases are not without some intimations as to the correct result, and some of them come close toi the identical point. Thus, in Watson v. Mississippi River Power Co., supra, at page 28 of 174 Iowa, page 190 of 156 N.W., is this language: “* * * they [cases cited] refer to' the effect of the use of explosives under the authority of or contract with the general government, * * *; and without conceding what is claimed by way of exemption from liability even in such eases, it may well be admitted that the effect of such circumstances is a question upon which there is room for plausible argument in support of the theory.” We said in Grennell v. Cass County, supra, at page 702 of 193 Iowa, page 506 of 187 N.W.: “It may also be conceded, for the purposes of this appeal, that an independent contractor who performs, the work undertaken by him according to the terms of his contract and the plans and *567 specifications furnished for his guidance does not become liable in damages to- any third person suffering- injury by reason of any mistake, fault, or defect in such plans or specifications.” Both this and the Watson ease, supra, indicate that the theory of nonliability of the independent contractor where he was guilty of no negligence may be sound.
Two other Iowa cases must be considered at this point. Fitzgibbon v. Western Dredging Co.,
We turn now to the converse o-f the proposition that one who, under contract with the- state, carries o-u-t the provisions negligently and thereby damages third persons is not entitled to claim the governmental immunity because he has exceeded the terms of his, agreement and what he did was, his own act rather than that of the sovereign. The opposite of this is, -that if the contractor does that which his contract authorizes, and requires, without negligence-, then he is entitled to- claim the same degree of immunity that his governmental authority with
*568
whom he has made Ms agreement may claim. Benner v. Atlantic Dredging Co., supra, we think is a well-considered opinion directly in point here. The plaintiffs would distinguish this case because they say New York does not recognize- the rule of “liability without fault” as applied to damages arising from blasting vibrations and concussions. But the language- of the opinion is much broader than that. The court said at page 161 of 134 N. Y., page 329 of 31 N.E.: “It being lawful for the sovereign to exercise its lawful power, it must follow that whatever results from its proper exercise is not unlawful, and if any injury, direct or consequential, results to the- individual, he is remediless!, except so far as the sovereign gives him a remedy. * # * The defendant having done no more than it was fully authorized to- do>, and which its duty to the government under the contract required it to- do-, would be blameless * * *.” This case was followed, with quotations at some length, in Nelson v. McKenzie-Hague Co.,
The rule is thus stated in 43 Am. Jur., Public Works and Contracts, section 83, pages 827, 828: “As a general rulé, a private contractor m the1 construction o-f a public improvement under a contract with duly authorized public authorities is not liable for any injury, direct o-r consequential, to owners of private property that may result as a necessary incident from the prosecution of the work in a proper manner, which would otherwise amount to a nuisance. The- theory is that one- who contracts with a public body for the performance o-f public wo-rk is entitled to share the immunity of the public body from liability f-or Mcidental injuries necessarily involved in the performance of the contract, where he is not guilty of negligence-. In other words, when the act or failure to act which causes an injury is one which the contractor was employed to- do and the injury results not from a negligent manner of doing the *569 work, but from the performance thereof, the contractor is entitled to share the immunity from liability which the public enjoys * * *.”
See also 69 A. L. R. 489, annotation, and Los Angeles Dredging Co. v. Long Beach,
Yearsley v. W. A. Ross Construction Co.,
“In that view, it is clear that if this authority to carry out the project was validly conferred, that is, if what was done was within the constitutional power of Congress, there is no liability on the part of the contractor for executing its will. *- * * Where an agent or officer of the Government purporting to act on its behalf has been held to be liable for his conduct causing injury to another, the ground of liability has been found to be either that he exceeded his authority or that it was not validly conferred.”
As to the claim that the damage to plaintiff’s lands constituted a tailing without due process of law and without compensation, the opinion points out that, if that were true, the Government is held to' have impliedly promised to pay just compensation, and a remedy is available through the Court of Claims. But in no event, said the learned Chief Justice, is there any ground for holding liable the agent of the Government who is simply acting under the authority conferred upon it. “The action of the agent is ‘the act of the government’ ”, says the opinion, citing authority.
The plaintiffs attempt to distinguish the Yearsley case, supra, and others where the injuries did not result from the use of explosives, by saying there must be a difference in theory *570 when a dangerous instrumentality is or is not used. We doubt the soundness of this distinction. If the contract made by the governmental authority requires the independent contractor to do something in the course of his performance which will or may result in incidental or consequential damage to third persons, it seems that blasting or dredging operations, or others, may alike be potentially harmful and dangerous to plaintiffs or their property. Blasting, necessary to the work to be done under the Government, may cause missile or concussion or vibration damage; but dredging may cause changes in the current of rivers, or the building of dams may cause overflows', also damaging to adjacent property owners or possibly others. In that sense, any of these works may be “dangerous instrumentalities.” We see no reason for applying a different rule in explosives cases than in others* which in themselves may cause harm without negligence, so far as extension of the principle of governmental immunity to one who contracts to do what the Government requires and does it as agreed and with due care is concerned.
As a matter of fact, if the work required to be done in the public interest will injure the property of third persons to the extent that it amounts to a “taking” without just compensation, the plaintiffs here are not remediless, as Yearsley v. Ross Constr. Co., supra, points out. This question is not before us* and we make no pronouncement upon it. We have pointed out that we are not here- concerned with questions involving eminent domain or related issues, which are not within the pleadings.
YI. It is interesting to note, but profitless to consider, that some authorities place the nonliability of the contractor, when be is not himself negligent, upon the doctrine that the cloak of governmental immunity extends to* him, and others put it on the ground of nonliability, because he has done only what the Government authorized and no’ more. We have said that the two theories are very closely related, if not identical. The underlying principle in each is that the State may make improvements, for the public good, -as in improving navigation, and is not responsible for consequential or incidental damage to* private property not amounting to a taking without compensation, in so* doing; and that it may do this work through *571 contracts with others, who have the same immunity or nonliability from suit as the Government itself, if they carry out their agreements as specified. It will be of small profit to the person whose property is injured to know exactly which horn of the dilemma impaled him.
In view of our holding herein, it is necessary to reverse the judgment of the trial court and to remand the case with directions to dismiss plaintiffs’ petition. — Reversed and remanded, with directions.