SUMMERS, Justice.
James Chaney instituted this suit in the City Court of Baton Rouge against the city of Baton Rouge, parish of East Baton Rouge and its contractor Jenkins Construction Corporation and the contractor’s insurer The Travelers- Insurance Company for damages to his dwelling house. The petition alleges that Jenkins contracted with the City-Parish to enlarge the Melrose Canal and install two lines of large concrete drainage pipe. Exceptionally heavy equipment and machines were required to accomplish this result. While the work was being performed, vibrations from the use of the heavy equipment in close proximity to Chaney’s house caused the interior shéet'rock and plaster near doors and windows to crack with the resulting damage.
[7]*7The parish of East Baton Rouge answered, denying liability to Chaney. On the basis of a hold harmless clause in the construction contract, the parish filed a third party demand against Jenkins and Travelers seeking judgment over against them in solido should the parish be cast; and, alternatively, the parish sought contribution against Jenkins and Travelers, should Chaney recover against the parish. By stipulation the city of Baton Rouge was deleted from the suit. It was also stipulated that the damage to Chaney’s house was $792.
Travelers and Jenkins answered, admitting the contract with the parish and the performance of the work, but denied liability in the principal demand. Travelers and Jenkins then assumed the position of third party plaintiffs and prayed for judgment against the parish for indemnity, or, alternatively, contribution should Jenkins and Travelers be cast in the principal action.
The trial judge awarded damages in the amount of $792 to Chaney and against the parish in the principal demand, and judgment in favor of the parish in the same amount in its third party demand against Jenkins and Travelers. The third party demand of Jenkins and Travelers against the parish was dismissed.
On ;appeal to the First Circuit the judgment. in favor of Chaney against the parish was affirmed. The judgment in favor of the parish against Jenkins and Travelers in the third party demand was reversed and set aside, Jenkins and Travelers being exonerated of all liability in the premises. 238 So.2d 847 (La.App.1970). We granted writs on the parish’s application. <
The testimony at the trial convinces us that both the parish and the contractor were responsible to Chaney for undertaking this work within ten feet of Chaney’s dwelling. A 100-ton capacity dragline,-the largest in the Baton Rouge area, was used as an excavator to widen and deepen the existing canal and as a crane to place the concrete pipe sections in the channel. A backrhoe was also used in the excavation and in the placement of the large concrete pipe sections. The dragline and a tractor grader were used in the back fill operation. Each pipe section had an inside diameter of 10J4 feet; a length of 8 feet and weighed 16 tons.
In the use of this heavy equipment no precautions were taken either by the parish or the contractor to minimize vibrations incident to the operations.
Dr. Capozzoli, an engineer specializing in foundation work, examined Chaney’s house after the work was completed and ■ found fresh cracks in the plaster and sheetrock of the walls and ceilings. He ascertained from the Department of Public Works the nature of the work carried on by Jenkins-in. the [9]*9canal. He observed a similar project in progress in another subdivision and was therefore familiar with the methods and equipment used. In his opinion the vibrations from the project activity caused the damage to Chaney’s house.
We are satisfied with Dr. Capozzoli’s qualifications, the facts upon which he based his opinion and his conclusion that the contractor’s activity caused the damage.
The record discloses that the excavation, pipe-laying and back-filling were all accomplished within an existing right of way or servitude furnished by the parish to the contractor on which to perform the work. The construction project was not, therefore, the direct result of expropriation proceedings as defined by the legislature (La.R.S. 19:1 et seq.) ; nor was the damage to Chaney’s house incidental to an expropriation proceeding conducted under statutory authorization or guidelines.
Article I, Section 2 of the Constitution announces the constitutional principle supporting legislation authorizing expropriation ; it provides that “private property shall not be * * * damaged except for public purposes and after just and adequate compensation.” Thus the damage here, since it has not been compensated as the Constitution directs, must be recovered by resort to other principles of our law allowing recovery in such instances. The contention is made that Chaney cannot recover, for no negligence or fault has been shown on the part of the parish or Jenkins. However, Chaney’s recovery can be sustained under Article 667 of the Civil Code which provides:
Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.
In the beginning it is necessary to note that the Court of Appeal erroneously considered itself bound by what was considered to be the majority decision in Reymond v. State, Department of Highways, 255 La. 425, 231 So.2d 375 (1970) declaring that Article 667 of the Civil Code is inapplicable in instances where an owner’s activities on his property causes damages to adjacent owners. The author of the Reymond opinion declares that Article 667 is only applicable to “structural changes' in or on the land, and it is the existence of.the thing, the construction, or the change upon the estate which must give rise to the damage,” not the activity on the property. There is, in fact, no majority opinion by this Court in the Reymond Case on the reasons for judgment, only on the result reached. One justice concurred in..the result, meaning he did not subscribe to the language or rationale of the opinion, only the result, while three other members of the [11]*11court dissented, from that portion of the opinion rejecting recovery under Article 667 on account of damage from activity on adjoining property.
Moreover, the Reymond Case was not decided under the authority of Article 667, but was decided, instead, under principles of expropriation. Any statements relating to Article 667 are therefore dicta. Furthermore, we do not agree that we should follow the interpretation placed upon Article 667 by the opinion in Reymond. Instead, we adopt the dissent of Mr. Justice Sanders in that case, where he said (255 La. 425, 465, 231 So.2d 375, 389) :
Although reliance upon Article 667 of the Louisiana Civil Code is unnecessary for recovery in the present case, I must note that the language of the majority opinion unsettles the prior jurisprudence construing this Article. The majority (sic) advances the opinion that Article 667 applies only to buildings, edifices, structures, levees, and other structural changes in and on the land that produces damage to the neighbor. It restricts the Article to only one category of estate use, undermining the assumption that the Article serves as a statutory base for the sic utere doctrine. (So use your own as not to injure another’s property.) In so doing, the majority repudiates the rationale of the following decisions: Devoke v. Yazoo & M.V.R. Co., 211 La.
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SUMMERS, Justice.
James Chaney instituted this suit in the City Court of Baton Rouge against the city of Baton Rouge, parish of East Baton Rouge and its contractor Jenkins Construction Corporation and the contractor’s insurer The Travelers- Insurance Company for damages to his dwelling house. The petition alleges that Jenkins contracted with the City-Parish to enlarge the Melrose Canal and install two lines of large concrete drainage pipe. Exceptionally heavy equipment and machines were required to accomplish this result. While the work was being performed, vibrations from the use of the heavy equipment in close proximity to Chaney’s house caused the interior shéet'rock and plaster near doors and windows to crack with the resulting damage.
[7]*7The parish of East Baton Rouge answered, denying liability to Chaney. On the basis of a hold harmless clause in the construction contract, the parish filed a third party demand against Jenkins and Travelers seeking judgment over against them in solido should the parish be cast; and, alternatively, the parish sought contribution against Jenkins and Travelers, should Chaney recover against the parish. By stipulation the city of Baton Rouge was deleted from the suit. It was also stipulated that the damage to Chaney’s house was $792.
Travelers and Jenkins answered, admitting the contract with the parish and the performance of the work, but denied liability in the principal demand. Travelers and Jenkins then assumed the position of third party plaintiffs and prayed for judgment against the parish for indemnity, or, alternatively, contribution should Jenkins and Travelers be cast in the principal action.
The trial judge awarded damages in the amount of $792 to Chaney and against the parish in the principal demand, and judgment in favor of the parish in the same amount in its third party demand against Jenkins and Travelers. The third party demand of Jenkins and Travelers against the parish was dismissed.
On ;appeal to the First Circuit the judgment. in favor of Chaney against the parish was affirmed. The judgment in favor of the parish against Jenkins and Travelers in the third party demand was reversed and set aside, Jenkins and Travelers being exonerated of all liability in the premises. 238 So.2d 847 (La.App.1970). We granted writs on the parish’s application. <
The testimony at the trial convinces us that both the parish and the contractor were responsible to Chaney for undertaking this work within ten feet of Chaney’s dwelling. A 100-ton capacity dragline,-the largest in the Baton Rouge area, was used as an excavator to widen and deepen the existing canal and as a crane to place the concrete pipe sections in the channel. A backrhoe was also used in the excavation and in the placement of the large concrete pipe sections. The dragline and a tractor grader were used in the back fill operation. Each pipe section had an inside diameter of 10J4 feet; a length of 8 feet and weighed 16 tons.
In the use of this heavy equipment no precautions were taken either by the parish or the contractor to minimize vibrations incident to the operations.
Dr. Capozzoli, an engineer specializing in foundation work, examined Chaney’s house after the work was completed and ■ found fresh cracks in the plaster and sheetrock of the walls and ceilings. He ascertained from the Department of Public Works the nature of the work carried on by Jenkins-in. the [9]*9canal. He observed a similar project in progress in another subdivision and was therefore familiar with the methods and equipment used. In his opinion the vibrations from the project activity caused the damage to Chaney’s house.
We are satisfied with Dr. Capozzoli’s qualifications, the facts upon which he based his opinion and his conclusion that the contractor’s activity caused the damage.
The record discloses that the excavation, pipe-laying and back-filling were all accomplished within an existing right of way or servitude furnished by the parish to the contractor on which to perform the work. The construction project was not, therefore, the direct result of expropriation proceedings as defined by the legislature (La.R.S. 19:1 et seq.) ; nor was the damage to Chaney’s house incidental to an expropriation proceeding conducted under statutory authorization or guidelines.
Article I, Section 2 of the Constitution announces the constitutional principle supporting legislation authorizing expropriation ; it provides that “private property shall not be * * * damaged except for public purposes and after just and adequate compensation.” Thus the damage here, since it has not been compensated as the Constitution directs, must be recovered by resort to other principles of our law allowing recovery in such instances. The contention is made that Chaney cannot recover, for no negligence or fault has been shown on the part of the parish or Jenkins. However, Chaney’s recovery can be sustained under Article 667 of the Civil Code which provides:
Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.
In the beginning it is necessary to note that the Court of Appeal erroneously considered itself bound by what was considered to be the majority decision in Reymond v. State, Department of Highways, 255 La. 425, 231 So.2d 375 (1970) declaring that Article 667 of the Civil Code is inapplicable in instances where an owner’s activities on his property causes damages to adjacent owners. The author of the Reymond opinion declares that Article 667 is only applicable to “structural changes' in or on the land, and it is the existence of.the thing, the construction, or the change upon the estate which must give rise to the damage,” not the activity on the property. There is, in fact, no majority opinion by this Court in the Reymond Case on the reasons for judgment, only on the result reached. One justice concurred in..the result, meaning he did not subscribe to the language or rationale of the opinion, only the result, while three other members of the [11]*11court dissented, from that portion of the opinion rejecting recovery under Article 667 on account of damage from activity on adjoining property.
Moreover, the Reymond Case was not decided under the authority of Article 667, but was decided, instead, under principles of expropriation. Any statements relating to Article 667 are therefore dicta. Furthermore, we do not agree that we should follow the interpretation placed upon Article 667 by the opinion in Reymond. Instead, we adopt the dissent of Mr. Justice Sanders in that case, where he said (255 La. 425, 465, 231 So.2d 375, 389) :
Although reliance upon Article 667 of the Louisiana Civil Code is unnecessary for recovery in the present case, I must note that the language of the majority opinion unsettles the prior jurisprudence construing this Article. The majority (sic) advances the opinion that Article 667 applies only to buildings, edifices, structures, levees, and other structural changes in and on the land that produces damage to the neighbor. It restricts the Article to only one category of estate use, undermining the assumption that the Article serves as a statutory base for the sic utere doctrine. (So use your own as not to injure another’s property.) In so doing, the majority repudiates the rationale of the following decisions: Devoke v. Yazoo & M.V.R. Co., 211 La. 729, 30 So.2d 816 (refueling of locomotives causing smoke); Craig v. Montelepre Realty Co., 252 La. 502, 211 So.2d 627 (pile driving); Gulf Insurance Co. v. Employers Liability Assur. Corp., La.App., 170 So.2d 125 (pile driving); Hauck v. Brunet, La.App., 50 So.2d 495 (pile driving) ; Fontenot v. Magnolia Petroleum Company, 227 La. 866, 80 So.2d 845 (subterranean explosion in oil exploration); Wright v. Superior Oil Company, La.App., 138 So.2d 688 (subterranean explosion in oil development) ; Gotreaux v. Gary, 232 La. 373, 94 So.2d 293 (aerial dusting of crops with insecticides) ; Trahan v. Bearb, La.App., 138 So.2d 420 (aerial dusting of crops with insecticides). See also Dainow Property, 21 La.L.Rev. 294-295; Stone, Tort Doctrine in Louisiana: The obligations of Neighborhood, 40 Tul.L.Rev. 701.
The sole basis for repudiating the rationale of these decisions is the example of “works” given by Domat, a French legal scholar whose writings contributed substantially to the Code Napoleon. It is to be noted, however, that the illustrations used by Domat have been made the subject of specific articles in the Louisiana Civil Code. See LSA C.C. Arts. 691-698. It seems doubtful that these examples were designed as a limitation upon the neighborhood concept.
[13]*13Writing in 40 Tul.L.Rev. 701, 705-706, Dr. Stone states:
“It is obvious that the passages cited from the Roman law by Domat list the type of ‘works’ which were the most usual sources of damage to neighbors in that day. Domat himself gives as examples a roof which protrudes over and discharges water upon a neighbor’s land, the failure to leave proper distances between structures, the placing of stoves and fireplaces against a common wall; but he quite wisely continues by saying that with regard to those works by which damage might result and which one ought not to be able to do except at a certain distance from the neighbor and with proper precautions, these ought to be governed by rules laid down by the customs and usages of the place. Louisiana has made these more precise by articles 692 through 695.
“The important thing is that these are only illustrations of the type of ‘works’ which at the time of the adoption of the Code could be expected to damage one’s neighbor. The listing was never intended to be exclusive. The list grows as the society develops. The world of the Romans or that of Domat did not contemplate the use of dynamite in conducting geophysical explorations, the use of pile-driving equipment to prepare a foundation for buildings, the operation of jet planes over residential areas, the dusting of crops by airplanes, the operation of huge factories, the storing or use of radioactive materials. As man’s ingenuity in creating works upon his lands and in conducting operations thereon has increased, so has his capacity to cause harm to his neighbors, with the corresponding necessity for regulation in the interest of the good of all.”
Dr. Dainow also writes:
“Article 667 of the Civil Code provides for the legal servitude that one property may not be used in such a way as to cause damage to another. There are also principles of tort law which impose liability on a landowner for damage caused to another — sometimes based on fault or negligence, sometimes as a strict liability. This multiplication of devices permits the court to have a greater range of flexibility in the handling of specific cases and in directing the development of the law concerning responsibility where both damage and causality are proven.”
Adding to the overwhelming argument against the interpretation of Article 667 expressed in the Reymond Case are these comments by Professor Yiannopoulos:
While the literal interpretation of Article 667 in the light of its historical [15]*15..sources' might leave room for the view ■ that the word “work” means merely .“constructions,” a teleological interpretation of the same article leads to the conclusion that the word “work” ought to in-.'elude “acts.” In other words, as a mat.ter of policy, it is preferable to apply article 667 to all situations in which constructions or activities cause unwarranted :,harm to property. The contrary view Iwould not only unsettle Louisiana jurisprudence and would write out of the , Code the sic utere doctrine, but it would eliminate a most important legislative basis for civil responsibility and result in unnecessary importation of a common law tort doctrine.
: For almost two centuries, Louisiana courts, following an uninterrupted civilian tradition, have understood article •667 -to establish the sic utere doctrine and to cover constructions as well as 'activities on an estate that cause unwarranted harm to another estate. It is true, of course, that courts have not always been consistent in the application of article 667, and that this article has been said to establish liability for negligence, liability without fault, and even quasi-contractual liability. In this respect, there is room for clarification and for a much needed improvement of the law, but it is an unacceptable solution to- suppress the article and to sweep the old cases “under the rug.” (31 La.L.Rev. 221 [1971]).
See also Hardy, Mineral Rights-Correlative Rights, 31 La.L.Rev. 263, 282 (1971).
Our view will not accept, the proposition that a proprietor is responsible for damage to a neighbor for a “work”, that is, a structure on his premises which harms his neighbor without imposing a like responsibility for harmful activity.
Article 667 is therefore a limitation the law imposes upon' the rights of proprietors in the use of their property. It is a species of legal servitude in favor of neighboring property, an expression of the principle of sic utere. An activity, then, which causes damage to a neighbor’s property obliges the actor to repair the damage, even though his actions are prudent by usual standards. It is not the manner in which the activity is carried on which is significant; it is the fact that the activity causes damage to a neighbor which is relevant. This being ascertained, it remains only to calculate the damage which ensued.
And the proprietor is likewise responsible not only for his own activity, but also for that carried on by his agents, contractors and representatives with his consent and permission. This liability which the law imposes attaches also 'to the agent or contractor, who, as in -this ■ case, [17]*17becomes solidarity liable with the proprietor if his activity causes damage to a neighbor.
Under these concepts we find the parish and Jenkins and his insurer, liable in solido to Chaney.
The parish’s third party demand against -Jenkins for indemnification on account of the hold harmless clause in its contract presents the final issue. The clause states:•.
It is further agreed that the contractor shall hold owner free and harmless from all’claims or damages to persons and/or property that may arise out of or by reason of the performance of the work
Since Article 667 of the Code imposes liability on the parish for damages “that * * * arise out of or by reason of the performance of the work,” this hold harmless clause compels Jenkins and its insurer to indemnify the parish to the extent of the parish’s liability.
For the reasons assigned, because Chaney did'not apply for writs, judgment is rendered in favor of James Chaney, against the parish -of East- Baton Rouge, only, in the sum' of $792. It is further ordered that there' is judgment in favor of the parish of 'East Baton Rouge on its third party' demand agáinst -Jenkins Construction, J. H.' Jenkins Contractor, Inc., and their insurer or indemnitor for indemnification in' any amounts-which the said parish shall pay unto James Chaney on account of the judgment rendered herein. -'' ! •: : -