Congreve v. . Smith

Strong, J. The verdict of the jury, under the instructions given them by the court, involves the finding that the stone covering the area was unsuitable and unsafe for that purpose, wherefore it broke, and the plaintiff received the injury in question. The area was under the surface of the public street, and was maintained for the benefit of the property of the defendants, and the stone was placed over it under contractors with the defendants for the completion of the defendants' building, in pursuance of the contract. No license from the city for the area was proved. It certainly is just that persons who, without special authority, 7/ake or continue a covered excavation in a *82 public street or highway, for a private purpose, should be responsible for all injuries to individuals resulting from the street or highway being thereby less safe for its appropriate use, there being no negligence by the parties injured ; and 1 entertain no doubt that a liability to that extent is imposed on them by law. Such is clearly the legal responsibility for placing objects upon the surface of the ground, obstructing the full and free enjoyment of the easement, and there does not appear to be any distinction in principle as to the liability of a party for an act making the use of the easement dangerous, arising from the mode in which it is done, whether by objects upon or over the surface, which may be run .upon or against, or by holes in the earth into which persons may fall. The general doctrine is, that the public are entitled to the street or highway in the condition in which they placed it; and whoever, without special authority, materially obstructs it, or renders its use hazardous, by doing anything upon, above or below the surface, is guilty of a nuisance; and, as in all other cases of public nuisance, individuals~sustaining special damage from it, without any want of due care to avoid injury, have a remedy by action against the author or person continuing the nuisance. No question of negligence can arise, the act being wrongful. It is as much a wrong' to impair the safety of a street by undermining it as by placing objects upon it. There can be no difference in regard to the nature of the act or the rule of liability, whether the fee of the land within the limits of the easement is in a municipal corporation or in him by whom the act complained of was done; in either case, the act of injuring the easement is illegal. The case of Dygert v. Schenck (23 Wend., 466) appears to be directly in point. In that case, it was held that the -defendant, who had dug a race-way across a public road, -over his own land, to conduct water to his mill, and built -a bridge across it, was liable for an injury sustained in consequence of the bridge being out of repair. The court, by *83 Cowen, J., said that, in suffering the bridge to become unsafe, “the defendant came short of his obligation to the ¡ public. Any act of an individual done to the highway, if / it detract from the safety of travelers, is a nuisance.” And /- again: “ Special damage arising from it, therefore, furnishes^ ground for private action, without regard to the question,1 of negligence in him who digs it. The utmost care to prevent mischief will not protect him, if the injury happen without gross carelessness on the part of the sufferer.” . . It is no answer to the present action that the covering of the area was done under the contractors, who had contracted to do the work properly, and tliat the defendants are not responsible for the negligence of the contractors’ servants. The act was that of the defendants; they procured it to be done, and do not appear to have objected to it. Besides, the action may well stand on the basis of continuing the area and the stone covering it, they making the easement unsafe, compared with what it otherwise would have been. That is a sufficient ground of liability. The defendants were bound, at their peril, to make and at all times keep the street as safe as it would have been if the area had not been constructed. The defendants, therefore, have no ground for complaint with any of the rulings at the trial, or of the charge to the jury, and the judgment should be affirmed. Seed bit, J., was absent; all the other judges concurring, Judgment affirmed.