William Scott vs. James Bay, 3 Md. 431

Mason, J., delivered the opinion of this court. The first count in the present declaration clearly discloses-a case of trespass quart clausum fregit, and not an action on the case. This count alleges, that the appellant caused great injury to the appellee by opening quarries and blasting rocks therefrom, whereby large quantities of rocks and stones were thrown upon the dwelling-house and premises of the appellee, breaking the doors, windows, &c., and thus depriving him of the quiet possession and enjoyment of his property.

Such acts would constitute a forcible breaking of the plaintiff’s close, and the injuries resulting therefrom would be immediate and not consequential, and therefore trespass and not case is the proper remedy. Upon all questions of pleading, Chitty has always been regarded as high authority in Maryland, and to avoid the embarrassment of the present question by a review of the numerous and apparently conflicting authorities cited by counsel, this court is willing to rest this case upon the law, as announced by Chitty, 1 vol., 117.

The author there lays down the general principle to be, that c-an injury is considered as immediate when the act complained of itself and not merely a consequence of that act, occasions the injury.” This principle, as well as the illustrations given of it by Chitty, embrace a case like the one made by the first count. It was intimated in argument, that as the defendant was pursuing a lawful business, and as there was no design to perpetrate the wrong complained of, therefore the remedy should he case.

Chitty, (page 119,) distinctly affirms, that the legality or illegality of the original act is not in general the criterion or test, whether the injury was immediate or consequential, or whether the remedy should be trespass olease. And in the case of Taylor vs. Rainbow, 2 Hen. and Munf., 423, the defendant had negligently, but without design to injure, discharged a gun and wounded the plaintiff, who sued in case. It was held that trespass -was the proper remedy, and that it was immaterial whether the injury was committed wilfully or not.

The intent, however, is a proper-subject for the consideration of the jury in determining the damages. 2 Stark., 213. The second count is in part obnoxious to the same objecv tion. The averments, however, in that count, “that all persons on or about the said premises were kept in constant fear and jeopardy of their lives, rendering a proper attention to business full of fear and danger,” &c., would constitute a nuisance, and as such, would form a proper ground for an action on the case. That the evidence discloses a case of an aggravated wrong to the rights and property of the plaintiff, cannot be denied.

It is equally true that most of the plaintiff’s testimony disclosed acts, the damages resulting from which were recoverable in trespass and not in case. For instance, all those portions of the testimony showing the direct injury to the plaintiff’s property, such as the damage to the roof and walls of the house and grounds, present a case of immediate injury and constitute clearly a trespass.

On the other hand it is equally clear, that the evidence which showed the value of the property to have been diminished for the purposes of renting and occupation, and that the plaintiff’s servants, through fear, &c., were prevented, to the plaintiff’s injury, from performing the labor for which they had been employed; and that the damage which subsequently resulted to the property by means of the water which passed through the hole in the roof, which was caused by one of the explosions, were consequential damages, and as such, recoverable in case.

Upon this state of the pleadings and evidence, the defendant prayed the court to instruct the jury, “that the plaintiff cannot recover in this form of action, because the acts and doings complained of, if any injury was thereby sustained by the plaintiff, were a forcible breaking of the plaintiff’s close, and were the direct and immediate cause of the injury, and the injury was not, in contemplation of law, consequential upon the acts and doings complained of.” This prayer was defective, if for no other reason, because it required the court to treat all the injuries complained of as resulting in damages which were recoverable in trespass and not in case.

We have already shown that one count in the declaration disclosed injuries rece 'erable in case, and that a part, at least, of the testimony supported such a count.

The second prayer of the defendant asks the court to say, “that the plaintiff cannot recover for any injury sustained by him whilst the quarries were lei out and not worked by the defendant, but were worked by other persons, not the servants or agents of the defendant.” This prayer presents the proposition, that if the nuisance in question was not occasioned directly by the defendant, but by other persons, not his agents or servants, then he is not liable to damages; in other words, that a landlord is not responsible for a nuisance occasioned by his tenant.

The evidence in the cause dispenses with the necessity of deciding this distinct proposition. It was proved that on several occasions, at least, the defendant was present, and by his conduct, adopted the acts of his tenants as his own acts. He even, on one occasion, assumed the responsibility of the conduct complained of, and defied legal proceedings against him. Under such a state of facts, it was clearly wrong in the defendant’s counsel to ask the court to assume, that all the injuries complained of were occasioned by the tenants exclusively, without the sanction, approbation or adoption of the plaintiff.

The third prayer asserts the legal proposition, “that the defendant had a right to quarry stone from his quarries, and that the plaintiff cannot recover for any injury he may have sustained in consequence of such quarrying, if the jury believe that proper precautions were used in working the quarries, and that such injury was sustained without default of the defendant.” In the first place, there is no sufficient evidence in the record to warrant such a prayer, that proper precautions were used in working the quarries.

But if proper precautions had been taken, they would still constitute no vindication of the defendant for the injuries resulting to the plaintiff’. Unless a party can show a right, either in the nature of a presumed grant or easement, or in some other mode, to use his properly in a particular way, he cannot use it in that particular way, if it occasions injury to his neighbors, in the quiet enjoyment of their legal rights and privileges, and it makes no difference whether precautions were used or not to prevent the injury complained of.

It is a rule of the common law, that a man should so use his own property as not to hurt or injure another, and therefore if one carry on a lawful trade or business in such a manner as to prove a nuisance to hi's neighbor, he must answer in damages. There are many cases in the books where this doctrine has been applied, and among the number are those where a man erects a smith’s forge, swine-sty, lime-kiln, tallow-furnace, machine-shop, quarry or privy, so near the dwelling-house of another as to render it unfit for occupation. Bradley vs. Gill, Lutw., 69. Aldred’s case, 9 Coke, 58. Jones vs. Powell, Hutton, 135.

Morly vs. Pragnel, Cro. Car., 510. Rich vs. Basterfield, 56 Eng. C. L. Rep., 786. Fish vs. Dodge, 4 Denio, 311. And, especially, for the general principles ap7. plicable to this case, the court would refer to the case of Hay vs. The Cohoes Company, 3 Barbour, (N. Y.,) 42. For the reasons assigned, we think the court below was right in rejecting the defendant’s prayers, and therefore we affirm its judgment. Judgment affirmed.