American Security & Trust Co. v. Lyon , 21 App. D.C. 122 ( 1903 )

Mr. Justice Morris

delivered the opinion of the Court:

The arguments in this case have been conducted with marked ability and industrious research into adjudicated cases upon the question of damnum absque injuria and how far a man may use his own property without liability to other persons for damage consequential upon such use. We do not deem it necessary to follow counsel into this interesting investigation. The case might have been different if the second count of the declaration had been permitted to stand, and the verdict had been rendered upon it or upon both counts combined. But the second count has been eliminated from the case by the direction of the trial court to the jury to return a verdict for the defendant on that count. The appellee, alone, if any one, is aggrieved by that ruling; and he does not complain of it. While the argument on his part proceeds in great measure upon the assumption that the ruling was erroneous, he has taken no appeal, and there has been no occasion for him to appeal. With this second count eliminated, the issue between the parties was resolved into the question whether there was negligence on the part of the defendant Thompson in the doing an act, in itself lawful, upon his own property, whereby the appellee was injured. We understand it to be conceded on the part of the appellant, and it is undoubtedly the law, that if there was such negligence the plaintiff was entitled to recover. The contention is that there was no evidence of any snch negligence.

The rule applies here, as in many other cases, that, while a man may lawfully do what he pleases with his own property, he may not use it in such manner as to injure his neighbor. It is true that there is damnum absque injuria, damage for which no legal redress can be claimed. Constantly in the course of human events there are acts done by our neighbors in the enjoyment of their rights of property which diminish and may greatly interfere with our enjoyment of' our property. If a man building upon his own city lot thereby cuts off the view or darkens the lights of his neighbor’s house, the latter cannot reasonably complain. If a man clears his land of trees and ploughs up the ground for cultivation, and thereby interferes with the flow of water upon his neighbor’s land, the latter has no redress. Every one, in the acquisition and use of his own holdings, must be held to have anticipated the ordinary use by others of their lands ; and from such ordinary use consequential damage is not to- | be inferred. But when one places some extraordinary or unusual construction on his own land, which could not reasonably have been anticipated by his , neighbors, when he-builds a great reservoir of water, or fills up a great ravine with earth, all of which, of course, he may lawfully do, it behooves him to take proper precautions to prevent the water or the earth from overflowing upon his neighbor’s land and injuring his neighbor’s right. In the use of his own he must' not invade his neighbor’s property; and it would undoubtedly be an invasion of his neighbor’s property if he placed unusual quantities of earth or water upon his own land without proper precaution for their confinement, and allowed them to escape upon his neighbor’s land and to injure him. Whether he would be 'liable, and how far, with such precautions, it is unnecessary here to decide, for the parties have iimade the issue of negligence, and upon that issue the case was determined by the trial court. The only question for us is, whether the ruling of the trial court was correct that there was sufficient evidence to be submitted to the jury upon the question of the negligence of the defendant.

We think the court was right in that ruling, and that it requires no very minute examination of the testimony in the case to show that there was ample evidence to go to the jury upon the question involved.

One witness for the plaintiff testified “ that no barricades were erected to prevent the water or mud from coming into the creek on the Thompson side, except that some trees were cut down and left to lie there, some on the edge of the creek, and some lengthwise towards the creek, but they did not prevent the water or the mud coming in.” The plaintiff himself, as a witness on his own behalf, being questioned with reference to testimony previously given by the contractor who had done the work for Thompson to.the effect that he had dug trenches in certain places in order to carry off the water which washed down the earth, testified “ that the work had been going on for some time before these trenches were dug;” and that he did not think that these trenches were dug until after he had made complaint of the damage which he was sustaining. A witness for the defendant, one of the engineers employed by Thompson, testified that after the work had been in progress for some time, timber crib-work was built, which stopped very materially the movement of solid material, but could not stop the wash of mud in solution; and that this crib-work was not begun until the fill of earth was three or four feet in height near the edge of the creek. The contractor, when called as a witness on behalf of the defendant, would seem to show that the previous witness was at least partly in error. He testified that the crib-work referred to was put in on the east side of the creek and not on the west or Thompson side; that the plaintiff frequently complained to the witness about the washing of the earth; and that nothing wms done, therefore, to prevent such washing, because there had been no plan to put up works.

Assuredly there was ample testimony here to go to the jury to show that no proper precaution, indeed, no precaution whatever, had been taken to prevent the vast quantity of loose earth deposited by the defendant in the ravine from escaping upon tbe plaintiffs pond in the shape of mud and destroying his property. At least reasonable care and prudence were demanded of the defendant. No man has the right to heap up loose earth or material upon his own land in such manner that, if proper precautions are not taken to confine it, it must necessarily escape upon the land of another. The testimony in the case would tend to show that no unusual or extraordinary precaution was required for the purpose, but that much of the mischief was done before any precaution whatever was taken.

We find no error in the ruling of the trial court; and the judgment appealed from must, therefore, be affirmed, with costs. And it is so ordered. ■