Shafer v. Wilson

44 Md. 268 | Md. | 1876

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.

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 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; Abbott vs. Gatch, 13 Md., 315; Cooke vs. England, 27 Md., 14.

It is also established, that damages may be recovered for any and all injury sustained, including the breaking up of his business and the loss of profits naturally following, to be determined by the jury, from the evidence in relation thereto. Brown & Otto vs. Werner, 40 Md., 16.

The Scotch law, referred to in Mayne on Damages, 18 and 59, allowing loss of estimated profits to be included in the damages, has not been recognized as part of the common law, and depends upon too many contingencies to justify its adoption as a safe basis of damages.

■ This prayer was erroneous in annexing the concluding words, “during the residue of his term.”

The second prayer of the plaintiff claims that it was the duty of the defendant to have given him notice of his intention to make the contemplated improvement.

Such notice would seem to be a reasonable precaution in a populous city, where buildings are necessarily required to be contiguous to each other, and improvements made by one proprietor, however skilfully conducted, may be attended with accidental and disastrous results to his neighbors, who ought to have the opportunity to take the steps necessary to protect themselves and property.

This was recognized as a sound principle, in the case of LaSala vs. Holbrook, 4 Paige’s Ch. R., 169, referring to English cases, deciding that the party who is about to endanger the buildings of his neighbor by a reasonable improvement on his land, is bound to give the owner of the adjacent lot proper notice thereof, and to use ordinary skill in conducting the same, and that it is the duty of the latter to shore or prop up his own building so as to render it secure in the meantime.

This also seems to have been the view of Chancellor Kent.

In his 3rd vol. Com., that distinguished jurist says, In cities, where the population is dense and the buildings are compact, a great variety of urban services grow out of the relation of vicinage, and at page 532.he states, If the owner of a house in a compact town, finds it necessary to pull it down, and remove the foundations, and he gives due notice of his intention to the owner of the adjacent house, he is not answerable for the injury which the owner of that house may sustain by the operation, provided he remove his own with reasonable and ordinary care.

In Washburn on Easements, 435, the same jirecaution is referred to and the English Cases sustaining it.

There was similar error in granting the plaintiff’s second prayer in regard to the measure of damages, as stated in disposing of his first prayer. „ ■

The second prayer of the defendant was properly refused. If the plaintiff’s house was in bad condition, that did not justify the defendant in throwing it down, or otherwise injuring it, and destroying the plaintiff’s business therein. The defendant had no right to hasten its fall by making improvements in his own lot in a careless and negligent manner. Gale on Easements, 353.

If the house was so weak that it could not stand the reasonable improvement of the defendant’s property, conducted with skill and care, any loss sustained by the plaintiff would be damnum absque injuria. This was conceded by the allowance of the defendant’s third prayer.

The necessity of notice to the plaintiff of the projected improvement, has already been stated, and there was no error in the refusal of the defendant’s fourth prayer, claiming that notice was unnecessary.

There was no error in the refusal of the defendant’s fifth prayer, for the reasons already stated.

Damage is only remote when, although arising out of the cause of action, it does not so immediately and necessarily flow from it, as that the offending party can be made responsible for it. Mayne on Dam., 36.

The defendant’s sixth prayer was properly refused.

The jury had to determine from the evidence whether the defendant excavated the foundation wall of his house in a negligent and unskilful manner, and if they so found, the plaintiff was entitled to recover for the damage he sufferecl thereby. There was evidence upon the subject, and it was the province of the jury to determine as to its weight and effect, and to say whether or not, under the circumstances, the defendant conducted his work with such a degree of care and caution as might be looked for in a prudent man.

(Decided 7th March, 1876.)

Judgment reversed, and neio trial ordered.