John T. Rockwood & others vs. William W. Wilson & others, 11 Cush. 221

Thomas, J. The gravamen of the suit is the negligence of the defendants. The defendants did what being done with due care was a lawful act, upon their own land. It is not the opening of the drain of which the plaintiffs complain. The case finds that this was necessary; that the foundation of the defendants’ building could not be laid without it. The caution given to the defendants was not that they should not open the drain, but that it would be necessary to close it.

This the declaration avers the defendants failed to do, “ and negligently left said ditch or drain open, and unobstructed so that the water flowed, &c.” It is not necessary to consider whether, negligence being averred, the action could proceed without proof of negligence. The technical ground might be sufficient, but we do not rest upon it, being all satisfied that it is only upon proof of negligence that the- action could be maintained under any form of declaration.

The case is not that of the erection or maintenance of a private nuisance—the doing of an unlawful act— but the doing of a thing lawful in itself, in such careless way as to injure the plaintiffs. The distinction is vital; for nothing can be better settled than that if one do a lawful act upon his own premises he cannot be held responsible for injurious consequences that may result from it, unless it was so done as to -constitute actionable negligence. Boynton v. Rees, 9 Pick. 528; Howland, v. Vincent, 10 Met. 371; Tourtellot v. Rosebrook, 11 Met. 460; Thurston v. Hancock, 12 Mass. 220; Bachelder v.

Heagan, 6 Shepley, 32; Panton v. Holland, 17 Johns. 92; Brown v. Kendall, 6 Cush. 292. The defendants did a thing lawful in itself; they opened the drain on their own land; this it is conceded they had a right to do : they closed it; this it was their duty to do. Whether they used reasonable care in the discharge of this duty or were guilty of negligence, was a question of fact for the jury.

It was submitted to them under instructions “ that the defendants were only bound to use ordinary care in stopping the drain, and that if they used such care, that is, such care and caution as men of common prudence usually exercise in the management of their own concerns, they were not liable to the plaintiffs for the injury occasioned to them.” These instructions were right, and afford reasonable freedom in the use, and reasonable security in the protection of property.

What constitutes ordinary care must depend upon the facts of the case; the degree of caution and diligence rising with the exigency and being proportioned to it. The remark cited and relied upon by the plaintiffs’ counsel, from the opinion of Gibbs, C. J. in Sutton v. Clarke, 6 Taunt. 29, is not only strictly an obiter dictum, but cannot be sustained we think upon principle or authority. Exceptions overruled.