、

SECTION I.

OF ACTIONABLE WRONGS, AND INJURIES THAT ARE NOT AC-
TIONABLE.

I. Of the 'conjunction of damage and wrong necessary to create a Tort.-To constitute a TORT, two things must concur— actual or legal damage to the plaintiff, and a wrongful act committed by the defendant. (a)

(a) Bayley, J., Rex. v. Pagham, Commissioners, &c., 8 B. & C. 362.

action-is a very ancient "There must," observes

Ex damno sine injuriâ non oritur rule or maxim of the common law. HOBART, C. J., "be a damage either already fallen upon the party or inevitable; there must also be a thing done amiss." (b)' "By injuria," observes WILLES, C. J., " is meant a tortious act,'

(b) Waterer v. Freeman, Hob. 266.

This has long ceased to be recognized as a maxim or rule of law. It received its death-blow from Lord HOLT, in the case of Ashley v. White, 2 Ld. Raym. 938, where he gave expression to the doctrine which has ever since been recognized by the courts of this country and England, that whenever there is a legal injury, there is legal even though not actual damage, and that the law will import damage to sustain the right. In commenting upon the maxim cited by the author, he said, "It is impossible to imagine any such thing as injuria sine damno. Every injury imports damage in the nature of it." Judge STORY, in the case of Webb v. The Portland Manufacturing Company, 3 Sum. (U. S.) 189, in commenting upon the doctrine announced by Lord HOLT, ante, said, The principles laid down by Lord HOLT are so strongly commended, not only by authority, but by the common sense and common justice of mankind, that they seem absolutely, in a judicial view, incontrovertible." The doctrine that a recovery may be had where there is an injury to a right, even though no actual damage ensues, has been recognized in numerous cases, English and American, and is now a settled rule of law in both countries. Barker v. Green, 2 Bing. (N. C.) 317; Maryetti v. Williams, 1 B. & Ad. 415; Hobson v. Todd, 4 T. R. 71; Pindar v. Wadsworth, 2 East. 162; Bower v. Hill, 1 Bing. (N. C.) 549; Mason v. Hill, 3 Brad. 394; Webb v. Portland Manufacturin g Company, ante; Blanchard v. Baker, 8 Greenleaf (Me.) 253; Fisher v. Clark, 41 Barb. (N. Y.) 327; Pickard v. Collins, 23 Id. 444; Wilts v. Swinton Waterwork› Company, 9 L. R. Ch. App. 451; Jerome v. Ross, 7 Johns. Ch. (N. Y.) 315; Lewis V. Stein, 16 Ala. 214; Corning v. Troy Nail and Iron Co. 40 N. Y. 191; Wool on The Law of Nuisances, 333-9, 817-21. But there may be both injury and damage as the result of an act, and yet no right of action. The rule is invariably, that whenever a legal right is invaded, an action lies therefor, even though 10 actual results; but where no legal right is invaded, an action will not lie, however great the damage. Thurston v. Hancock, 12 Mass. 220; La Sala v. Holbrook, 4 Paige Ch. (N. Y.) 169; BRONSON, J. in Radcliffe's Exrs. v. Brooklyn, 4 N. Y. 195 ; Strong v. Campbell, 11 Barb. (N. Y.) 138; Chatfield v. Wilson, 28 Vt. 49; Ellis v. Duncan, 21 Barb. (N. Y.) 280; Pickard v. Collins, ante.

damage

In Mahan v. Brown, 13

Wend. (N. Y.) 261, SAVAGE, C. J., said, "No one, legally speaking, is injured or damnined unless some right is infringed." Frazer v. Brown, 12 Ohio St. 294; Smith v. Bowen, 2 Disney (Ohio) 153; Quin v. Moore, 15 N. Y. 432. Kinsel v. Kinsel, 4 Jones (N. C.) 149.

The definition given by WILLES, J. of injuria is not complete, nor can it be said to be accurate; for injury, legal injury, may result from an omission to do an act which it is the duty of one to do, as well as from the doing an act which contravenes the legal right of another, and the one is a tort as much as the other.

Thus, if A. suffers a building owned by him upon a public street, or near the premises of another, to fall into decay, and become weak or ruinous through lack of repair, although originally strong, and the building falls upon B. while passing

it need not be willful and malicious, for though it be accidental, an action will lie." (c)'

2. Damage and wrong-Dangerous things set in motion.--If

(c) Winsmore v. Greenbank, Willes, 577.

along the public street, and injures him, or if it falls upon his house or shed, or any property in the vicinity, and injures it, a legal injury is thereby inflicted upon B. for which an action will lie against A., and the injury is as much a tort as though it had resulted from the direct act of A. Benson v. Suarez, 28 How. Pr. (N. Y.) 511; Mullin v. St. John, 57 N. Y. 567. So, if a railway carriage, through defective construction, or a defect in materials, breaks down and injures a passenger lawfully riding therein, the company is bound to respond to A. in damages for the injury, if it could have been prevented by human foresight, and the omission to make a careful inspection of the carriage and its materials, is in law a tort. Ware v. Gray, II Pick. (Mass.) 109; McLean v. Burbank, 11 Minn. 277; Horne v. R. R. Co., 1 Cold. (Tenn.) 72. And this is generally true in all actions for negligence. The liability rests upon the ground that the party is guilty of a wrong by omitting to do what the law requires that he should do for the protection of the persons and property of others entrusted to his care. Therefore injuria has a broader signifi cance than that given it by the learned jutge, and may more properly be said to be the result of a tortious act done by another, which he had no legal right to do, or from an omission to do some act which the law required that he should do.

1 There are a large class of tortious acts which are actionable, whether the motive that actuated them is good or bad, but such instances are confined generally to that class of acts that are lawful in themselves, but are rendered unlawful by reason of the manner of their exercise and their results upon the rights of others. The maxim, sic utere tuo ut alienum non lædas, has all the force and effect of positive law, and is rigidly adhered to and enforced by the courts. Therefore, every person is bound at his peril to so conduct himself, and to so use and manage his own property, as not to infringe upon the legal rights of another, and failing in that, the motive with which the act was done will not excuse him from liability. This is peculiarly the case where the injury arises to real property from an act amounting to a nuisance, and from personal acts which, without fault on his part, produce injury to another.

This doctrine, so far as relates to injuries arising from real property, was laid down in the case of Poynton v. Gill, 2 Rolles Abr. 140, in which the defendant was sued for an injury to the plaintiff's premises by reason of the fumes and vapors arising from his lead works. The works were carried on to supply the government with munitions of war, and this was set up in defense, as a justification. The plaintiff predicated his action upon the injury to the vegetation growing upon his lands (wood and grass), and the loss of two horses and a cow depasturing there. The court said, "Though this was a lawful trade, and for the benefit of the nation, and necessary, yet this shall not excuse the action, for he ought to use his trade in waste places and great commons, remote from inclosures, so that no damage may happen to the proprietors of adjoining lands." From that day to this, the doctrine has mainly been uniform, that the motive with which a lawful act is done, has no effect either in upholding or defeating liability for resulting injuries.

An act, however lawful in itself, that infringes upon the rights of others, is actionable, whether the motive actuating it was good or bad, and without reference

the damage done is the immediate result of force exercised by the defendant, in a place where the probable and natural result of misdirected force would be to cause injury to others, the de

to the degree of care and skill exercised in doing it. Fletcher v. Rylandus, I L. R. Ex. 268, affirmed in House of Lords, 3 H. L. 330; Smith v. Fletcher, L. R. 7 Exch. 305; Rogers v. Ragendo Dutt, 13 Moore, P. C. C. 269; Cahill v. Eastman, 18 Minn. 324; Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., 2 N. Y. 161; Phinzey v. Augusta, 47 Ga. 263; Wilson v. City of New Bedford, 108 Mass. 261. While an act which does not operate as a legal injury is not actionable, however bad the motive that actuated it. Stevenson v. Nemenham, 13 C. B. Ex. 285: Chatfield v. Wilson, 25 Vt. 49; Harwood v. Benton, 32 Vt. 724; People v. Albany, &c. R. R. Co., 57 Barb. (N. Y.) 204; Pickard v. Collins, 23 Id. 444; Mahan v. Brown, 13 Wend. (N. Y.) 148; Thurston v. Hancock, 12 Mass. 220; Lasala v. Holbrook, 4 Paige Ch. (N. Y.) 164; Panton v. Holland, 17 Johnson (N. Y.) 72; Smith v. Bowlen, 2 Disney (Ohio) 153.

The rule is that, in order to maintain an action for a tort, the act or omission complained of must be legally wrongful; it must prejudicially affect another in some legal right. The fact that it has or will result to anɔtur's injury and damage is not enough; the injury must result from an act which is in violation of his legal rights, and malice is not an essential ingredient. Rogers v. Rajendro, ante; Pickard V. Collins, ante; Chatfield v. Wilson, ante.

This rule is well illustrated by ROLLE, in the case of Wilde v. Minst rly, cited by him in vol. 2, p. 204, of his Abridgment. In that case it was held that "If A. seized in fee of land next adjoming the land of B. erects a new house on his land, and part of his house is erected on the confines of his land, next adjoining the land of B., if B. afterwards dies, his land near the foundation of the house of A. whereby the foundation of the house, and the house itself falls into the pit that B. has dug, still no action lies at the suit of A. against B., for this was the fault of A. himself that be built his house so near to the lant of B., for he could not by his act hinder B. from making the most profitable use he could of his lands.” Here is a case where great damage resulted from an act done by another, yet no liability therefor existed; for the reason that no legal right was invaded. The case is silent as to the use B. intended to make of his lands, or the motive that actuated him in digging the pit, but the doctrine is stated generally, and the motive would have had no effect in determining the question of liability.

In Thurston v. Hancock, 12 Mass. 220, the plaintiff and defendant were adjoining owners of land on Beacon Street, in Boston. The plaintiff erected a house upon his lands near to the land of the defendant, and took the precaution to sink the foundation of his walls to an unusual depth. The defendant excavated his lot to the depth of thirty-two feet, in consequence of which the walls of the plaintiff's house cracked, and he was compelled to take it down. The motive that actuated him does not appear, but that it was to improve his lot, or to lay the foundation for a building, was neither proven or claimed in the case, but the court held that no recovery could be had by the plaintiff for the injury to his building-for the defendant had a right to 'excavate upon his own land so long as he did not disturb the integrity of his neighbor's soil. The plaintiff's right to support from the defendant's land, only extended to such as was necessary to preserve his soil intact, and did not include the right to have an artificial substitute for the soil supported by it. Foley v. Wyeth, 2 Allen (Mass.) 131.

fendant will be responsible for the damage done, though it happened accidentally, or by misfortune, (d) unless the force was used strictly in self-defense. Thus, where one shooting at

(d) Dickenson v. Watson, 2 Jones, 205.

When, however, an act is done by one which, however lawful in itself, may result in injury to the rights of another, the party doing the act is bound at his peril, to see that no injury does result, and the question of motive or intention is not material.

The law presumes that every person intends all the natural and probable consequences of his acts, and this may be said to have all the force of a conclusive presumption, for direct evidence to show that the result was not intended, is not admissible to defeat legal liability, nor in mitigation of damages when only actual damages are claimed. Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., 2 Id. 101; Cahill v. Eastman, 18 Minn. 324.

In the two first named cases actions were brought against the defendants for injuries to the plaintiff's buildings, by reason of blasting done by the defendants, to construct a raceway for their mills. They offered evidence to show that, in the prosecution of the work they were in the exercise of the highest degree of care and skill, and that the work was necessarily done in that way, but the court rejected the evidence, holding that their liability did not depend upon the question of the degree of care or skill exercised by them, or upon their motives, but that, when they resorted to a method of doing their work which might result in injury to another, they were bound at their peril to see to it that no injury did result. The same doctrine was held in Cahill v. Eastman, ante, in reference to an interference with a watercourse.

So in Phinzey v. Augusta, 47 Ga. 263, where the city government brought water into the city in a canal built by it, for manufacturing purposes. In a time of high water, when the city was threatened with inundation unless an escape for the water of the canal was furnished, they turned a portion of the water from the canal into the sewers, and, although sufficiently strong to discharge the sewage, yet, under the increased burden imposed upon them in discharging the surplus water from the canal, some of the pipes burst, and the court held that, irrespective of the motives or the necessity that actuated the turning of the water into the sewers, yet the city having brought the water into the city by artificial means, were liable for all damages resulting therefrom.

In the great case of Fletcher v. Ryland, L. R. 3 H. L. 330, the liability of parties who interfere with the natural condition of things is ably illustrated by Lord CRANWORTH, who, in the course of his opinion says: "The question is not whether the defendant has acted with due care, but whether his acts have occasioned the damage." In a late English case, Smith v. Fletcher, decided in Exchequer, June, 1872, and reported in L. R. 7 Exch. 305, the doctrine of this case was reaffirmed. See also Wilson v. City of New Bedford, 103 Mass. 251; also opinion of BLACKBURN, J., in Fletcher v. Ryland, L. R. 1 Exch. 263, where this whole question is most ably discassed and the doctrine aptly illustrated.

In reference to the general proposition advanced by the author as applied to personal property, the doctrine is well illustrated by the old case of Michael v. Alestree, 1 Ventris, 295, where the defendant was held liable for injuries received by the plaintiff, by a kick from the defendant's horse, which he was exercising in a public place. So in Lynch v. Nurdin, 1 Q. B. 36, where the defendant was held