LIABILITY FOR SUBSTANTIAL PHYSICAL Class 1. Where defendant's blasting has cast rocks or other tangible substances upon plaintiff's premises, thereby doing substantial physical damage to land or buildings, it is now commonly said that defendant is absolutely liable, and that it is unnecessary to prove negligence. This view is now commonly asserted by the great weight of authority. A leading case is Hay v. Cohoes Co. Authorities likely to be cited to-day as sustaining this view are given in the footnote.3 Whether the result reached in these cases could be better rested on another ground will be considered later. 1 Notice that we are here considering only instances where blasting inflicts substantial physical damage on land or buildings. We are not now dealing with cases where continuous annoyance renders land untenantable or materially reduces the rental value, but without doing physical damage to the land itself or the buildings thereon. 2 2 N. Y. 159 (1849). Hay v. Cohoes Co., 2 N. Y. 159 (1849); Tremain v. Cohoes Co., 2 N. Y. 163 (1849); Scott v. Bay, 3 Md. 431, 446 (1853); Adams v. Sengel, 177 Ky. 535, 197 S. W. 974 (1917) (citing earlier Kentucky cases); Bessemer Coal Co. v. Doak, 152 Ala. 166, 44 So. 627 (1907); Central Co. v. Vandenheuk, 147 Ala. 546, 41 So. 145 (1906); Somerville, J., in Ex parte Birmingham Realty Co., 183 Ala. 444, 448, 63 So. 67 (1913); Mulchanock v. Whitehall Mfg. Co., 253 Pa. St. 262, 267, 98 Atl. 554 (1916); s. c. L. R. A. 1917 A, 1015; Johnson, J., in Knight v. Donnelly, 131 Mo. App. 152, 163, 110 S. W. 687 (1908); Henry Hall Sons Co. v. Sundstrom Co., 138 App. Div. 548, 123 N. Y. Supp. 390 (1910); affirmed without opinion in 204 N. Y. 660, 97 N. E. 1106 (1912); Interborough Rapid Transit Co. v. Williams, 168 N. Y. Supp. 688 (1918); E. T. Bartlett, J., in Page v. Dempsey, 184 N. Y. 245, 251, 77 N. E. 9 (1906); Forrester v. O'Rourke & Co., 48 Misc. 390, 95 N. Y. Supp. 600, 601 (1905); Vann, J., in Sullivan v. Dunham, 161 N. Y. 290, 300, 55 N. E. 923 (1900) (as to reasons for decision in Hay v. Cohoes Co.). In Gourdier v. Cormack, 2 E. D. Smith (N. Y. Com. Pleas), 200 (1853), one effect of the blasting was to split out (force out?) rocks three or four feet under the foundation of plaintiff's house. The judgment below for defendant was reversed. It is not entirely clear whether the splitting out of the rocks was the result of concussion (result of the force of the blast) or was caused by pieces of rock thrown by the blast. The defendant's liability, whether his conduct was negligent or not, seems rested on the authority of Hay v. Cohoes Co., 2 N. Y. 159, 162 (1849). Ι The authorities favoring the view asserted in Class I do not restrict its application to damage done to land or buildings. It has been regarded as extending to cases where missiles thrown from a blast have hit, or damaged, an individual who was upon land where he had a right to be. This includes not only an individual who was upon his own land, but also a laborer at work upon his employer's premises, or a traveler upon the highway struck by blasting done by defendant upon his adjacent premises. Class 2. Where substantial physical damage is done to plaintiff's land or building by vibrations or concussions due to blasting, but no tangible substance is thrown upon plaintiff's premises, it has been held by some authorities: first, that the case differs in principle from Class 1; and second, that the defendant is not liable unless negligence is proved. This view is sustained in New York. The leading case is Booth v. Rome, etc. R. R., and it is supported by the authorities given in the note below.7 St. Peter v. Denison, 58 N. Y. 416 (1874). 5 Sullivan v. Dunham, 161 N. Y. 290, 55 N. E. 923 (1900); Wright v. Compton, 53 Ind. 337 (1873). In Turner v. Degnon, etc. Co., 99 App. Div. 135, 90 N. Y. Supp. 948 (1904), “a traveler was struck while upon a city street by a stone thrown by a blast set off by a contractor engaged in constructing an underground railway," described as “a public improvement authorized and directed by the legislature." (See statement of case in I BOHLEN'S CASES ON TORTS, 611, note 2.) The Appellate Division held, by three judges against two, that the plaintiff could recover. In Miller v. Twiname, 129 App. Div. 623, 114 N. Y. Supp. 151 (1908), defendant was a contractor building a highway. Plaintiff, who was bringing him coal, was hit by a blast while on the highway, which was then in the lawful possession of the defendant. Held, that plaintiff, at the time he was injured, was not a traveler upon a public highway within the rule declared in Sullivan v. Dunham, 161 N. Y. 290, 55 N. E. 923 (1900). 6 140 N. Y. 267, 35 N. E. 582 (1893), overruling the decision in the lower court, 44 N. Y. St. 9 (1892). 'The Booth case has repeatedly been reaffirmed in New York. See, for instance, Holland House v. Baird, 169 N. Y. 136, 62 N. E. 149 (1901). For authorities in other states, approving the Booth case, see Simon v. Henry, 62 N. J. L. 486, 41 Atl. 692 (1898); Cherryvale v. Studyvin, 76 Kan. 285 (1907), Smith, J.; ibid., 287–288; Rost v. Union Pacific R. R., 95 Kan. 713, 714, 149 Pac. 679 (1915), West, J. (In both these Kansas cases the plaintiff recovered. The court held that the evidence in each case justified the jury in finding negligence.) Simpson, J., in Bessemer, etc. Co. v. Doak, 152 Ala. 166, 177, 44 So. 663 (1907). In New York, where distinction between the Hay case and the Booth case is still upheld, troublesome questions sometimes arise as to which of these two precedents Outside of New York, the cases are not unanimous. The weight of recent authority is against the New York view that Class 2 is distinguishable in principle from Class 1. Cases to this effect (contrary to the New York view) are cited in the note below. Query: Whether the rejection of the view taken in the Booth case, as to the alleged distinction between Class 2 and Class 1, necessitates the rejection of the further view taken in the Booth casethat negligence is the test (the requisite) of liability in cases of vibration and concussion. This question will be considered later. Is the above distinction between Class I and Class 2 tenable? We think not. Defendant's liability (the test of liability), whatever it may be, should be the same in both cases. This is upon the assumption that there is no difference between the two classes, except the one therein indicated: viz., as to the manner in which the damage is inflicted by the blast. In the leading case of Booth v. Rome, etc. R. R.9 the principal reasons 10 given for distinguishing Class 2 from Class I are: that in govern a new case; as to when it may be said that the blast has thrown tangible substances upon the plaintiff's premises. Compare, for instance, Wheeler v. Norton, 92 App. Div. 368, 86 N. Y. Supp. 1095 (1904), with Derrick v. Kelly, 136 App. Div. 433, 120 N. Y. Supp. 996 (1910), and Adler v. Fox, 74 Misc. 483, 132 N. Y. Supp. 302 (1911). See also Conron v. Fox, 90 Misc. 425, 153 N. Y. Supp. 425 (1915), and Conwell v. Degnon & Co., 154 N. Y. Supp. 182 (1915). 8 Fitzsimmons & Co. v. Braun, 199 Ill. 390, 65 N. E. 249 (1902); Colton v. Onderdonk, 69 Cal. 155, 10 Pac. 395 (1886); Watson v. Mississippi, etc. Co., 174 Iowa, 23, 156 N. W. 188 (1916); Louden v. City of Cincinnati, 90 Ohio St. 144, 106 N. E. 970 (1914); Patrick v. Smith, 75 Wash. 407, 134 Pac. 1076 (1913); Longtin v. Persell, 30 Mont. 306, 76 Pac. 699 (1904); Schade, etc. Co. v. Chicago, etc. R. R., 79 Wash. 651 (1914); Parker, J., ibid., 658–659. 9 140 N. Y. 267, 35 N. E. 592 (1893). 10 In Hill v. Schneider, 13 App. Div. 299, 43 N. Y. Supp. 1 (1897), the decision in the Booth case is explained as being based on special concessions made by defendant during the argument of that case, in substance: (1) that the blasting was necessary in order to adapt defendant's premises to a lawful use, and (2) that it was conducted with due care. As to the alleged concessions, see 140 N. Y. 267, 269, 35 N. E. 592 (1893), and Andrews, C. J., 274; and comments of Rumsey, J., in 13 App. Div. 299, 305, 306, 43 N. Y. Supp. 1 (1897). See also discussion in later part of this article as to the contention that the blasting was "necessary," and that the defendant, in blasting, was only making a reasonable use of his land (was only reasonably exercising his rights as a landowner). In regard to the latter position Mr. Lewis says that the decision in the Booth case "would seem to be fairly open to criticism." See 9 LEWIS, Aм. R. R. AND CORP. REP. 103. Class 2 the damage is "consequential"; that there is "no technical trespass"; and that there is "no physical invasion." 11 None of these reasons are satisfactory. The term "consequential damage" is an equivocal one. On the one hand, it is sometimes used to denote damage which is so remote a consequence of an act that the law affords no recovery for it. It is thus used as practically "synonymous with non-actionable." On the other hand, it is used to denote damage which, though distinctly traceable to defendant's tort as the effective cause, did not follow immediately upon the doing of the act complained of; what Sir William Erle aptly terms "consequential damage to the actionable degree." 12 In the latter case, as in the present instance, the term "merely indicates that the action must be in Case rather than in Trespass. 29 13 "For it can hardly be supposed that a man's responsibility for the consequences of his act varies as the remedy happens to fall on one side or the other of the penumbra which separates trespass from the action on the case."'14 "The phrase 'consequential damage' has never served any useful purpose except in marking a distinction between damage which was formerly recoverable in an action of case and that which was formerly recoverable in an action of trespass." 15 Mr. Salmond 16 says that the term is now "merely an inheritance from an obsolete system of procedure." 17 If the term is appropriate here, it must be taken as used in the second sense above stated; and as denoting "consequential damage to the actionable degree." But we submit that the term does not apply at all to a case like Booth v. Rome, etc. R. R. Co. We concur with the view expressed by Macomber, J., in the report of the Booth case in the court below,18 that the damage here was direct, and not in any sense consequential. 11 140 N. Y. 267, 279, 280, 35 N. E. 592 (1893). 12 See Brand v. Hammersmith & C. R. Co., L. R. 2 Q. B. 223, 249 (1867). 13 10 COL. L. REV. 465, 467. 15 17 COL. L. REV. 383, 388. 14 Holmes, The Common Law, 80. 17 See also discussion by present writer: 15 COL. L. REV. 13-14; 17 COL. L. Rev. 383, 388; 25 HARV. L. REV. 223, 250-251; Eaton v. B. C. & M. R. R., 51 N. H. 504, 519-521 (1872). See also Doe, J., in Thompson v. Androscoggin R. R. Co., 54 N. H. 545, 550-554 (1874). And see 10 COL. L. REV. 465, 467. 18 See 44 N. Y. St. 9, 11 (1892). As to the objection that there is "no technical trespass: This objection seems founded on the theory that there is a distinction in principle, as to liability for damage to real estate, between cases where the remedy at common law, if there were any remedy, would have been an action of trespass, and cases where that form of action would not have been an appropriate remedy under the old common-law system of procedure. It was formerly supposed that if the facts of a case (excluding defenses) would have constituted a primâ facie foundation for an action of trespass, then the defendant could not clear himself by proving an entire absence of fault on his part.19 But this view no longer prevails in England since the decision in 1890 of the case of Stanley v. Powell,20 and it had previously been rejected in this country." Hence the rule of liability for blasting cannot depend on the question whether an actual physical trespass upon the res has been committed; nor is it material to inquire whether "the vibratory effects of blasting cannot constitute an actual trespass." 22 To this objection that there is "no technical trespass"-it would be a sufficient general answer to say that substantive law is no longer "controlled by the forms of procedure." To determine a question of substantive law it is not now necessary to discuss the refined technical distinctions by which the common-law system of forms of action was "perplexed and incumbered." Professor Maitland says that now "the attention is freed from the complexity of conflicting and overlapping systems of precedents and can be directed to the real problem of what are the rights between man and man, what is the substantive law." 23 But notwithstanding Professor Maitland's sweeping statement, this desirable result is not yet completely achieved. Unreasonable though it may be, it must be admitted that sometimes "the substantive obligations imposed by law are still influenced by the old forms." 24 Indeed, Professor 19 See I STREET, FOUNDATIONS OF LEGAL LIABILITY, 74, 75. 20 L. R. [1891] 1 Q. B. 86. 21 See Brown v. Kendall, 6 Cush. (Mass.) 292 (1850); Brown v. Collins, 53 N. H. 442 (1873); I STREET, FOUNDATIONS OF LEGAL LIABILITY, 80. 22 See Willard Bartlett, J., in Sullivan v. Dunham, 10 App. Div. 438, 442, 41 N. Y. Supp. 1083 (1896). 23 MAITLAND, EQUITY AND FORMS OF ACTION, 375. 24 ROBERT CAMPBELL, PRINCIPLES OF ENGLISH LAW, 425. |