negligence, then it is plain that the adjacent proprietor holds his property in the one case subject to the right of his neighbor to store a dangerous explosive, but not to the right of his neighbor to blast rock. In the first supposed case the liability grows, not out of the storing of the dangerous explosive, but out of the negligence of the person storing it, while in the last supposed case, the liability springs from the manner in which the property is used; i. e., the blasting and negligence need not be shown. If, in the latter instance, the party blasting is liable for injuries that resulted from his act, however careful he may have been, the reasons for absolving the former from liability, unless he has been negligent, are not apparent. The blasting doubtless is a menace to adjacent property, but so is the storing of a highly explosive substance. In this case the premises on which the explosive substance was stored and the premises an which the building that was injured stood do not appear to have been adjacent. They were a mile apart, and, for anything that appears in the record, many parcels of real estate owned by third persons may have intervened. That, however, does not seem to be material either. One who, in blasting rock, should cast fragments across a strip of adjacent land owned by a third person against the windows of a more remote proprietor would hardly be heard to say in de fense of his act that the property injured was not adjacent. Whatever duty he owed to his neighbor extended equally to all who bility of one who, by blasting rocks, cast fragments thereof against the house of another, was taken by the court of appeals of New York in the cases of Hay v. Cohoes Co. 2 N. Y. 159, 51 Am. Dec. 279, and Tremain v. Cohoes Co. 2 N. Y. 163, 51 Am. Dec. 284. Th court in the first case decided that "the defendants, a corporation, dug a canal upon their own land for the purposes authorized by their charter. In so doing it was necessary to blast rocks with gunpowder, and the fragments were thrown against and injured the plaintiff's dwelling upon lands adjoining. Held, that the defendants were liable for the injury, although no negligence or want of skill in executing the work was alleged or proved." And in the second case that "the defendants dug a canal upon their own land, and in executing the work blasted the rocks so as to cast the fragments against the plaintiff's house on contiguous lands. Held, in an action on the case brought to recover damages for the injury, that evidence to show the work done in the most careful manner was inadmissible, there being no claim to recover exemplary damages, and the jury having been instructed on the trial to render their verdict for actual damages only." Counsel for plaintiff in error contend that in respect of the matter under consideration the analogy between the act of blasting rock on one's premises and storing a dangerous explosive thereon is not close. In the one case the damage is caused by fragments of rock being hurled upon or against the property injured, while in the other case the damage is caused by violent atmospheric vibra-might fall within the lines of danger. So it tions from the explosion. If, however, the would seem that in the case of explosives the explosion caused fragments of the building right of all within the circle of danger should wherein the explosive material was stored, be equal, irrespective of whether the propor other solid substance, to be thrown erty injured was adjacent to the premises against the property injured, thereby pro- upon which the material was stored. The liaducing damage, the analogy might be more bility of one who, for his own purpose, brings easily perceived. True, it might be said that upon his own premises substances dangerous in the one case the party to be charged was to others if not kept under control, was exactively engaged in the work that caused the haustively discussed by the judges of Enginjury, while in the other case he was simply land in the case of Fletcher v. Rylands, L. using the premises to store the dangerous R. 1 Exch. 265, and afterwards, on a review substance, not intending that it should ex-of the case, in the House of Lords (L. R. 3 H. plode. These distinctions, however, do not L. 330). In the exchequer chamber Justice seem to be material. The right of the owner Blackburn, in giving judgment, employed the of a stone quarry to blast rock therefrom following language: "We think that the where that is necessary to a profitable use of true rule of law is that the person who, for his property, or the right of one to make an his own purposes, brings on his lands, and excavation of any kind on his own property collects and keeps there, anything likely to where blasting is a proper and usual mode do mischief if it escapes, must keep it in at to accomplish the owner's purpose, would his peril, and, if he does not do so, is prima seem to be of as high and perfect a charac- facie answerable for all the damage which is ter as is the right of an owner to use his the natural consequence of its escape. premises as a storehouse for explosive sub- can excuse himself by showing that the esstances. Upon what principle should an cape was owing to the plaintiff's default, or, owner of property hold it subject to the right perhaps, that the escape was the consequence of another to store on his own premises ad- of vis major, or the act of God; but, as nothjacent to it nitroglycerine, but not subject ing of this sort exists here, it is unnecessary to the right of that other to blast rock? If to inquire what excuse would be sufficient. one may store nitroglycerine on his own The general rule, as above stated, seems, on premises, and not be liable to adjacent prop- principle, just. The person whose grass or erty for damages caused by its exploding un- corn is eaten down by the escaping cattle of less he has been negligent, while in the case his neighbor, or whose mine is flooded by the of the owner of the quarry the latter is li- water from his neighbor's reservoir, or whose able for an injury to an adjacent property cellar is invaded by the filth of his neighbor's resulting from blasting, although free from privy, or whose habitation is made unhealthy He by the fumes and noisome vapors of his neighbor's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbor who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbor's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should, at his peril, keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority this, we think, is established to be the law whether the things so brought be beasts, or water, or filth, or stenches." This language was approved in the House of Lords when the cause came up for consideration there, Lord Cranworth saying: "My lords, I concur with my noble and learned friend in thinking that the rule of law was correctly stated by Mr. Justice Blackburn in delivering the opinion of the exchequer chamber. If a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbor, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage." The doctrine in this case (Fletcher v. Rylands, L. R. 1 Exch. 265) has not been accepted by some of the courts of this country (Marshall v. Welwood, 38 N. J. L. 339, 20 Am. Rep. 394; Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276; Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 57 Am. Rep. 445; Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623), but has been approved in Shipley v. Fifth Associates, 106 Mass. 194, 8 Am. Rep. 318; Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 224; Mears v. Dole, 135 Mass. 510; Cahill v. Eastman, 18 Minn. 324 (Gil. 292), 10 Am. Rep. 184. In the case above cited from New York,-Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623,and that from New Jersey,-Marshall v. Welwood, 38 N. J. L. 339, 20 Am. Rep. 394, -a casualty occurred from an explosion of steam boilers. |lation of such a city is interested, and most of them directly or indirectly benefited, by these industries. Large numbers of them labor by day in factories where steam furnishes the motive power, and many of them sleep at night in buildings containing engines in active operation. The modern steam boiler and engine cannot be said to be such a menace to property and human life as to constitute a nuisance per se. They cannot, as such, be driven from the centers of population. Not so, however, with gunpowder and nitroglycerine. These latter agencies, on account of their dangerous character, may be, and usually, if not universally, are, driven into the suburbs of towns and cities, remote from human habitations and valuable structures. Under the circumstances that surround the productive arts and industries of to-day, a modification of the strict rule of liability in favor of those who employ steam in such arts or industries may not be inconsistent with its assertion against those who store gunpowder and nitroglycerine, or blast rocks, adjacent to the property of others. That public policy which seeks to secure the welfare of the many may demand such modification. Whether upon such grounds, or for any other reasons, such a modification of the rule should obtain in the case for the use of steam is not, of course, before the court, and the question is only considered in this brief way to show that there may be no irreconcilable conflict between the cases that have absolved the owners of boilers from liability for the consequences of an explosion occurring without their fault, and the conclusions reached by us in the case under consideration. Doubtless, gunpowder, nitroglycerine, and other dangerous explosives are useful agencies in many industries, as well as steam; but conceding that, in the case of steam boilers, the extensive and varied uses to which steam is devoted, and the comparatively slight danger arising from its use, require, on principles of public policy, which regards the interests of the great body of the people, that every owner of real property should be held to possess it subject to the right of his neighbor to erect a manufactory and employ steam on adjacent premises, yet it does not necessarily follow that such owner should possess his property also subject to the right of his neighbor to erect a powder or nitroglycerine magazine in his vicinity. The existence of a manufacturing establishment, although it employ steam as a motive power, may be, and doubtless is, in many instances, a positive benefit to real property in its vicinity, and instead of diminishing may enhance its value; while, on the contrary, the erection and use of a nitroglycerine magazine could have no other than a disastrous ef To my mind, the analogy between the act of storing so highly explosive and dangerous an agency as nitroglycerine on one's premises and that of conducting a business thereon, which requires for its successful operation the use of steam, is not complete, although each is an explosive. Doubtless both are dangerous agencies, when control over them is lost. The use of steam has, however, so generally been employed in every pro ductive industry that every owner of real property may reasonably be held to contem- fect on the value of all real property in its plate the contingency of its being employed vicinity. We think, therefore, the right to upon adjacent premises, and to enjoy his maintain the former may be placed upon property subject to that risk. In a great grounds that cannot apply to the latter. The city like New York or Chicago, where numer-general doctrine upon the subject stated in ous and varied industries are conducted, Fletcher v. Rylands, supra, seems to be just there are doubtless many thousands of places and fair in its general operation. The syllawhere steam is employed. The entire popu-bus of that case, as announced by the House of Lords (L. R. 3 H. L. 330), seems to recog- | Shauck, J., dissents. foreclosed, and leasehold interest be sold. The lease was duly recorded, and the lands transferred to said Henry Bostwick, and the same stood in his name for taxation, and pos session was delivered to him, and by him retained thereafter. The lease contained a privilege of purchase at any time during the term thereof, and contained the further provision, that the lessee should pay all taxes and assessments that might thereafter be levied, charged, or rated against said premises. Said Henry Bostwick caused said lands to be laid out into village lots, and dedicated certain streets to the public, and the village accepted the plat, and the streets were duly opened, and used as public streets. Afterwards, and while said lessee was still the holder of many lots bounding and abutting upon the said streets, he, with other owners of property bounding and abutting on said streets, signed petitions directed to the council of said village, as provided in § 2272, Rev. Stat., for the improvement of the streets and avenues in said petition mentioned and described, by grading the roadbed, setting the necessary curbs and gutters along the entire length thereof, and constructing the neces‐ sary culverts and drains, macadamizing and Village of ST. BERNARD et al., Plffs. in Err., graveling the roadway, and building neces 2. v. KEMPER et al. (60 Ohio St. 244.) 1. In this state, taxes and assessments are levied upon the corpus of real property, and not upon the titles by which the same may be held, unless otherwise provided by statute. The lessee in possession under a lease of real property for ninety-nine years, renewable forever, the property standing in his name for taxation, is so far the owner of such property as to authorize him to subscribe a petition for street im provements, under § 2272, Rev. Stat.; and in such case the signature of the lessor to such petition is not required in order to authorize an assessment against the corpus of such property. (May 9, 1899.) RROR to the Circuit Court for Hamilton E count to to review it Judgment anminton a judgment of the Court of Common Pleas in favor of plaintiffs in a suit brought to enjoin the collection of certain assessments for street improvements. Reversed. Statement by Burket, J.: On the 23d day of September, 1893, the defendants in error leased a certain tract of land adjoining the village of St. Bernard, iu Hamilton county, to one Henry Bostwick, by a written lease duly executed, for ninety-nine years, renewable forever, upon a consideration of a ground rent to be paid from time to time, and in default the lien for rent to be *Headnotes by the COURT. NOTE.-For 999-year lease, as distinguished from sale, see Morrison v. St. Paul & N. P. R. Co. (Minn.) 30 L. R. A. 546. sary retaining walls; and, further, that the whole cost of such improvement be assessed per front foot upon the lots bounding and abutting on said streets, and to be collected in ten annual instalments. In said petition said Henry Bostwick represented himself as the owner of said lots so bounding and abutting on said streets. Said petitions having been regularly presented to the council, it duly acted upon the same, and passed the proper resolutions and ordinances, and caused the said streets to be improved, as asked for in the said petitions, and assessed the cost and expenses thereof against the abutting property by the foot front, payable in ten annual instalments. After the said and said leasehold estate was duly fendants in error commenced their action in to which demurrers were sustained, but, in] the view taken by the court upon the main question, they become immaterial. The action was tried on appeal in the circuit court upon the petition and first defense, which raised issues as to the petitions signed by some of the defendants in error as to certain lots, and as to certain other irregularities in the case, and a judgment was rendered in favor of the defendants in error, reducing the assessment, except as to a few lots, to 25 per cent of the value of the lots after the improvements were made. The circuit court found its conclusions of fact separate from its conclusions of law, and, a motion for a new trial having been overruled and exceptions taken, the plaintiffs in error filed their petition in this court, seeking to reverse the judgment of the circuit court. Mr. Samuel B. Hammel for plaintiffs in No question is made by any of the parties as to the constitutionality of that part of § 2272, Rev. Stat., which applies to corporations in counties containing a city of the first or second grade of the first class, and therefore that question has not been considered. Section 2272, as it was then, is as follows: "In cities of the first grade of the first class when a petition subscribed by any owner or owners of property abutting upon any street or highway of any description, between designated points, is presented to the board of administration for the purpose, and in other cities of the first class, or in corporations in counties containing a city of the first or second grade of the first class, when a petition subscribed by three fourths in interest of the owners of property abutting upon any street or highway of any description, between designated points, is regularly presented to the council for the purpose, the costs of any improvement of such street or highway may be assessed and collected in equal annual instalments, proportioned to the whole assessment, in a manner to be indicated in the petition, or, if not so indicated, then in the manner which may be fixed by council; and the interest on any bonds issued by the corporation for the improvements, together with the annual instalments herein provided for, shall be assessed upon the property so improved; but when lot or land of one who did not subscribe the petition is assessed such assessment shall not exceed 25 per centum of the value of his lot or land after the improvement is made; provided, that whenever in this title the petition of the owners of property is required, a married woman shall have the same authority to sign that she would have if unmarried; and the guardians of infants or insane persons may sign such petition on behalf of their wards only when expressly authorized by the probate court on good cause shown." The plaintiffs in error contend that Mr. Bostwick, the lessee for ninety-nine years, renewable forever, was the owner of the property abutting on the streets in question, within the meaning of this section of the statute; while the defendants in error claim that he was not such owner. If he was not such owner, the judgment of the circuit court is right; out, if he was such owner, the judg ment is wrong. In this state, taxes and assessments are levied and assessed upon the corpus of real estate, and not upon the title by which the same may be held, unless otherwise provided by statute. Section 2897 provides that where lands held upon permanent leases are taxed in the name of the lessee, and are allowed to become delinquent, and are brought to sale for taxes, the sale shall be confined to the rights of the lessee, if the same shall be sufficient to meet the tax, interest, and penalty so assessed and due. This statute undertakes to protect the interests of the owner of the fee, but this protection is given only in case the interest of the lessee shall be sufficient to pay the taxes. If not sufficient, the interests of the owner of the fee must respond to make up the deficiency. This is the only statute on the subject, and it shows the policy of the state to be that the state must have its taxes; and, while it will first exhaust the interest of the lessee in the property, the state will require full payment, even though it takes the whole property, including the interest of the lessor. While this is the rule as to taxes, the same rule obtains as to assessments, because the statutes provide that, when assessments are certified to the auditor, they shall be collected the same as other taxes, which in this case would be by a sale of the leasehold estate, if sufficient to pay the assessment, and, if not sufficient, then by a sale of the whole property. It is urged that to hold the lessee, under such a lease, to be the owner, would put it in his power to cause an assessment to be put upon the property to an amount greater than the value of the whole property, and thereby, in effect, confiscate the estate of the lessor to the public. But this consideration is not of sufficient weight to override the public policy of the state as shown by its statutes. The rules of taxa. tion are prescribed by the statutes, and persons must make their contracts with reference thereto; and if the power is given to a lessee to deal with property as owner, to have it stand in his name for taxation, the lessor becomes bound by the acts of his lessee, and has no cause for complaint. A mortgagor is regarded as the owner of the real estate, even though the mortgage is for more than the value of the land, and in such cases the mortgagor may sign a petition as owner for improvements of streets and avenues, even though the assessments should exceed the value of the land, and thereby cause a total loss to the mortgagee. As the lessee in this lease is bound personally for the payment of the taxes and assessments, it must be presumed that he would not sign petitions for improvements recklessly, for the mere pur pose of injuring the holder of the fee; anc the same is true of a mortgagor. He is, by | for taxation and assessment, and now, when statute, made personally liable for the assess- a loss occurs by reason thereof, they desire ments in some cases to the amount of the to shirk it themselves, and throw it upon the value of the abutting property, and in others public. We think the loss should fall upon to the amount of 25 per cent of such value, those who engaged in the speculation, and and this personal liability is sufficient usual- not upon the public; and, if the lots of the ly to deter the lessee, as well as the mort- defendants in error are assessed for what Mr. gagor, from signing petitions for improve- Bostwick agreed to pay, defendants must ments whose cost would equal or exceed such look to him for reimbursement. We think value of the property. This personal liabil- that Mr. Bostwick was so far the owner of ity is usually a sufficient protection to the the property as to make him the proper perlessor and mortgagee, but cases may arise, as son to sign the petition for the improvements in the case at bar, where unforeseen depres- and that the signatures of the lessors were sions take place, and shrinkages in value oc- not necessary. Holding the lessee under cur, to such an extent as to wipe out all prof- such a lease to be the owner of the property its, and most, if not all, of the capital; and under said § 2272 harmonizes the statutes in such cases each party attempts to save and decisions of this court upon the subhimself as far as possible from the wreck, ject of permanent leases. By § 4181 such and to shift the responsibility upon others, leases are subject to the same law of descent or the public. In this case it was reason- as estates in fee simple. By §§ 5374 and ably expected that Mr. Bostwick, by platting 5375 such leasehold estates are regarded as the lands and improving the streets, would real estate, and subject to levy and sale upnot only be able to pay the ground rent, but on execution as such, and are bound by the pay the assessments, and make large profits lien of a judgment the same as other lands. by sales of lots. But by reason of unforeseen See also the cases of Loring v. Melendy, 11 causes, all this failed, and there is a loss to be Ohio, 355, and Northern Bank v. Roosa, 13 borne by someone. Shall it be by the pub- Ohio, 335. The case of Baltimore v. Boyd, lic, or those who engaged in the speculative 64 Md. 10, does not seem to throw much light venture? The defendants in error accepted upon the question, as in that case the lessee the promise of Mr. Bostwick to pay the taxes was by statute made the owner for the purand assessments, knowing that, if he failed poses of signing petitions for street improveto pay the same, the real estate would be held ments. therefor,-first the leasehold estate, and, if that should prove insufficient, then the whole property. The defendants in error so drew the lease as to enable the lessee to have the property stand in his name on the duplicate The judgment of the Circuit Court will be reversed, and the cause remanded to that court, with instructions to overrule the de murrer to the second and third defenses, and for further proceedings according to law. The NEW YORK COURT OF APPEALS. Walter R. SMITH, Respt., v. City of BROOKLYN, Appt. (160 N. Y. 357.) draining of the underground sources of a surface stream by pumping water from wells to supply a city reservoir renders the city liable to the owner of the land through which the stream naturally flows, although the city is the owner of the and on which the wells are located. (October 10, 1899.) Messrs. John Whalen and William J. Carr, for appellant: The owner of land may dig ditches or sink wells, or in any other manner exercise his dominion over his own land, without being liable at law for the interception of any underground percolating waters consequent upon such use of his own property. Ellis v. Duncan, 21 Barb. 230; Goodale v. Tuttle, 29 N. Y. 459; Pixley v. Clark, 35 N. Y. 520, 91 Am. Dec. 72; Delhi v. Youmans, 45 N. Y. 362, 6 Am. Rep. 100; Bloodgood v. Ayers, 108 N. Y. 400; Van Wycklen v. Brooklyn, 118 N. Y. 424; Covert v. Brooklyn, 6 App. Div. 73; Acton v. Blundell, 12 Mees. & W. 324; Rawstron v. Taylor, 33 Eng. L. & APPEAL by defendant from a judgment Eq. 428: Broadbent v. Ramsbotham, 34 F. of the Appellate Division of the Supreme Court, Second Department, affirming a judgment of a Trial Term for Queens County in favor of plaintiff in an action brought to recover damages for alleged unlawful draining of a pond belonging to plaintiff. Affirmed. The facts are stated in the opinion. NOTE. For rights in subterranean waters generally, see Southern P. R. Co. v. Dufour (Cal.) 19 L. R. A. 92. and note: also Willis v. See also 46 L. R. A. 820. L. & Eq. 553; Chasemore v. Richards, 7 H. L. Cas. 349: Bradford v. Pickles [1895] A. C. 587; Roath v. Driscoll, 20 Conn. 533, 52 Am.. Dec. 352; Brown v. Illius, 27 Conn. 84, 71 Am. Dec. 49; Greenleaf v. Francis, 18 Pick. 117; Davis v. Spaulding, 157 Mass. 431, 19 L. R. A. 102; Frazier v. Brown, 12 Ohio St. 294; Haldeman v. Bruckhart, 45 Pa. 514. Perry (Iowa) 26 L. R. A. 124; Tampa Waterworks Co. v. Cline (Fla.) 33 L. R. A. 376; and Wheelock v. Jacobs (Vt.) 43 L. R. A. 105. |