In St. Peter v. Denison (supra) it was contended that because the contractor was engaged in a State work he was not responsible for blasting which injured private property, and the court said: "The point is made by the defendant that the State having authorized him to do this work, and, impliedly, to do it by blasting, holds the relation to him and to the plaintiff of a principal in an agency.Summary of this case from Turner v. Degnon-McLean Contracting Co.
Argued September 25, 1874
Decided October 6, 1874
Frank Hiscock for the appellant. R.W. Peckham for the respondent.
Even if it should be conceded that the defendant had the right, from being a contractor with the State, to do all that which the State might do, in the progress of the work; I do not think that this would justify him, in the state of facts which this case presents, in casting material upon the premises of a private owner, upon which the plaintiff was lawfully engaged. The State could not intrude upon the lawful possession of a citizen, save in accordance with law. Unless authorized by law so to do, the casting of stone from the bed of the canal upon the land of an adjoining proprietor, either by the State or an individual, was a trespass. ( Hay v. Cohoes Co., 2 N.Y., 159.)
The defendant claims that he was authorized by law, in that he was, as the servant of the State, in the exercise of the right of eminent domain, belonging to his principal. The State, however, cannot ordinarily exercise that right save in accordance with a special act of the legislature, or through the constituted authorities by virtue of some general statute. He fails to show such special act, or any action of the constituted authorities. He may not claim that, by virtue of his contract, he had such delegation of sovereign power, as that he could, of his own motion, confiscate private property to the public use, permanently or temporarily. The general statutes relating to this subject confer power upon the canal commissioners to enter upon and take possession of lands of an individual for the construction of the canals. The authority is personal, is a trust and confidence reposed in them, the exercise and application whereof is matter of judgment and discretion, and cannot be delegated unless there be special power of substitution. It was accordingly so held in Lyon v. Jerome (26 Wend., 485), in the Court of Errors, reversing the judgment of the Supreme Court in the same case; and that an engineer or other subagent of the State could not lawfully take stone from the quarry of an individual, for the building of locks upon a canal, save by the express direction of the canal commissioners. Now the case in hand is not of the repair of a canal, but of its enlargement and improvement; hence of its construction on the enlarged plan. The defendant does not show any authority from the commissioners save that given by his contract. That confers no more power, gives no greater direction and authority, than was bestowed in the case just cited. Hence the defendant had no right, greater than any other individual, to take or intrude upon the premises outside the external lines of the enlarged canal. It makes no difference, that in the case cited there was a taking away and permanent appropriation of a part of an individual's land, and that here it is a temporary intrusion upon or use of it. If the defendant can justify the casting of stone upon adjacent premises, though not for the purpose of leaving them there permanently, he may justify such an occupation as would be permanent, or such an injury to property as would be a destruction of it. It is true that the statutes provide for the taking of lands for the temporary use of the canals. (Laws of 1833, p. 261, chap. 196, § 1; 1836, p. 407, chap. 287.) But the power so to do is confided to the canal commissioners, and its exercise must be by them, as is laid down in the case just cited. In the case cited by defendant from 4 Denio, 356 ( Lynch v. Stone), it appeared that Commissioner Enos had directed the act complained of; and in Wheelock v. Young (4 Wend., 647), the sole question considered was of the constitutionality of the act of 1817. There is a remark in Baker v. Johnson (2 Hill, 342-349), which seems to favor the defendant. But the question here raised was not in that case. That action was trover, for stone taken from land within the external lines of the canal, and the fact that they had been removed on to the plaintiff's land beyond those lines, but no farther than necessary for more convenient dressing of them, was incidentally alluded to. It was not in the scope of the action for the plaintiff to claim of the defendant as a trespasser upon his lands, and his right to do so was not passed upon.
Nor can the defendant protect himself from liability, for that his act of blasting out the rock with gunpowder was necessary; and hence, that the effects of it upon the adjacent premises were an unavoidable result of a necessary act. The case of Hay v. Cohoes Co. ( supra) shows that unless there is a right to the use of the adjacent lands for the purposes of the work, it matters not that the mode adopted of carrying on the work was necessary. There are decisions, that an act done under lawful authority, if done in a proper manner, will not subject the party doing it to an action for the consequences whatever they may be. ( Radcliff's Executors v. Mayor, etc., 4 N.Y., 196; Bellinger v. N.Y.C.R.R., 23 id., 42.) These are cases where the actor confined his direct action to the boundaries within which he had a right to work; and the effects complained of were not the immediate and direct results, but consequences therefrom. In the first of these cases (4 N.Y.), which is relied upon in the other (23 id.), Hay v. Cohoes Co. ( supra), is cited with approval. They do not declare any rule in conflict with that. They go upon the principle that the defendants in those cases, being in the exercise of public authority, if they acted with due caution, were not liable for the consequential damages to the property of any one not invaded by them.
It follows, then, that the defendant having no right to invade the premises, which, for the purposes of this case, were the possession of the plaintiff, it matters not whether and no he made his invasion without negligence. ( Tremain v. Cohoes Co., 2 N.Y., 163; Pixley v. Clark, 35 id., 520.)
The testimony warranted the finding of the referee, that the plaintiff had no knowledge or notice that the blast was about to be or had been set off, until he was struck by the piece of frozen earth and stone cast up by it. And the testimony and findings sustain the conclusion of law, that the plaintiff was not bound to exercise any care or vigilance to escape from missiles thrown by the blast; that the defendant was bound either to adopt such precautions as would prevent such missiles from reaching the place where the plaintiff then was, or to give him personal and timely notice of the setting off of such blast, to enable him to escape. The plaintiff was not bound to assume that the defendant was about to do a wrong, and so be on the watch to avoid it. The plaintiff was of lawful right where he was, and had the right to assume, until personal notice or knowledge of the contrary, that others would not unlawfully intrude upon him.
The point is made by the defendant that the State, having authorized him to do this work and impliedly to do it by blasting, holds the relation to him and to the plaintiff of a principal in an agency. This may not be maintained. The relation of the State is plain. It had work to do. The defendant agreed to do it, looking for his own profit in it. All the authority he had from the State went no farther than that he should do it in a lawful way. He was not the agent of the State. The State could not interfere with him so long as he lived to his contract. The manner of doing it was his own, and the State was not responsible for it.
The statute of 1870 (Laws of 1870, chap. 321, p. 749), upon which the defendant relies, was not enacted until after the plaintiff had suffered his injury; and it provides for the hearing and adjustment of claims against the State, meaning, in the view to which it is cited by the defendant, well founded claims, for which the State, if suable, might be proceeded against by action, and cast in judgment. It is not available to the defendant so as to enable him to invoke the application to this case of the rule, that where a remedy is provided by statute a party is confined to that.
The judgment should be affirmed.