The opinion of the court was delivered by
Bennett, J.
This is an action on the case, and two questions are involved in the decision, which we are called upon to make. The case comes up, upon exceptions to the charge of the court below, and also upon the decision of the court upon the motion in arrest, for the insufficiency of the declaration, but the questions are substantially the same.
The first question which we shall consider is, whether the plaintiffs are entitled to recover damages, by reason of the defendants’ having made their excavation, in building them railroad, on their own land, so near the plaintiffs’ land as to occasion a portion of their soil to slide into it. If this is an actionable injury, this court, as a court of law, cannot measure its extent. There is no pretence, that the railroad company, in digging the excavation on their 'own land, were in the wrong; neither in so doing, did they remove any of the plaintiffs’ soil directly; but the slide was a consequence of it. It is a familiar law, that if a man build his house so near the line of his adjoining neighbor, that it falls, in consequence of his neighbor’s digging an excavation on his own land, still no action lies for the house.
This principle results from the fact, that a man has an entire dominion over his own soil, and of the space above and below, to any extent he may choose to use it, unless restrained by some covenant, or a counter user, for such a time as to warrant the presumption of a grant. The maxim, “ sic títere tuo, ut alienum non laedas,” [471]*471will not apply, for the reason that your neighbor has no rights to injure. The damages in such case are adventitious, and arise from the fault of the party himself, in putting his house so near the line. If there was a want of due care and precaution, a different result would follow, provided the injury resulted from the want of them.
Vaughn v. Menlove, 3 Bingham, N. C. 464. Frover v. Chadwick, 3 Bingham, 334, and Jones v. Bird, 5 B. & A. 837. The case of Whitcomb v. Vermont Central Railroad Co., decided at the last circuit session at Burlington, went upon this ground. If the house which was undermined had been an ancient one, so that a prescriptive right had been acquired to have it stand upon the line, the maxim, sic utere, &c., would well have applied.
In the ease before us, the plaintiffs’ soil has slidden into the ditch,} and though the damages may be small, still the inquiry is, have ^ the plaintiffs sustained an actionable injury. It should be remark- ;t ed, that they have not laid upon the soil any additional or artificial weight, which facilitated the slide; but it was purely the result of the defendants’ own act. The leading case in Rolli’s Abridgement, (^>65) holds, that if the house with its foundation, (not being an ancient one,) falls, in a case like the one supposed, still no action lies; yet the Reporter adds, “if my soil slides into the.pit, an action will lie for tins.” The distinction made by the Reporter, may seem at first shadowy, but, we apprehend, it is sound and substantial.
The injury is, in depriving the owner of a portion of his soil, to which his right was absolute.' In the other case, no right is violated, and the injury is the result of the party’s own folly, and it may well be said to be damnum absque injuria. The distinction alluded to, as made in Roll, was acted upon hi Thurston v. Hancock, 12 Mass. 220, and regarded as sound. See Hays v. Cohoes Co., 2 Comstock, 159, where the same distinction is made and recognized by Gardner, J. The right of action in such a case does not depend upon negligence. The natural state of the soil has been disturbed, a right violated, and the person causing it must answer for that which is but the natural, if not the necessary, consequence of his act. In Wyatt v. Harrison, 3 B. &• A. 871, it is added, by way of a query, whether an action would not have lain, if the complaint had been that the digging had occasioned a falling in of the soil of the plaintiff, to which no artificial weight had been applied. If there is any error in the decision of the case, in the 12 Mass., it is, I appre[472]*472hend, to be found in the court’s not discriminating between the soil, that fell into the excavation from its own inherent weight, and that which was pressed in by the house. If then the defendants stood as an individual, owning the adjoining fee, we think they could not defend successfully this part of the claim for damages; and can this corporation stand in a more favorable point of view ? They cannot justify the removal of the plaintiffs’ soil, from any powers attempted to be conferred upon them, either by their charter, or the general railroad law; and in Glover v. North Staffordshire Railway Co., 20 L. T. Q. Bench 376, and in 15 English Jurist 673, it was held, that if a railway company does that which would be an actionable injury to land, (unless done under the powers conferred by their act of incorporation,) the owner or occupier is entitled to compensation. So far then, the defendants cannot complain of the charge of the court below.
The more important inquiry is, whether the defendants can be mulct in damages, for extending their excavation across what is called the Stowe road, and the raising of the embankments, for the purpose of carrying the road over the railway by a bridge, that the road might be restored to its former usefulness, by reason of which the plaintiffs were damnified with reference to their house and lot opposite to the road. It does not appear in this case, that the railroad passed over any part of the plaintiffs’ land, but passed over the defendants’ land, and across the adjoining highway, the fee in the soil of which, it is not alleged in the declaration, belonged to the plaintiffs, neither does it appear from the exceptions, that such was the fact, and the action was evidently not predicated or tried upon any such supposed state of facts. Though it may be true, that where a highway passes between the land of A. and B., the presumption prima facie is, that each owns to the centre of the road; yet this is only a presumption of fact, and not of law, so as to become a rule of property, and may at all times be rebutted, and is doubtless founded upon the supposition, that they originally owned the land taken for the highway equally. The declaration is, that the plaintiffs were possessed of a dwelling house, barn, shed and appurtenances thereto belonging, situate in "Waterbury, and that the plaintiffs had the right to pass to and from the same, to the highway leading by said buildings; and that the defendants, in building and grading a portion of their railway, exea[473]*473vated the earth upon the southerly, or southwesterly side of said piece of land, so near the same that the plaintiffs’ soil slid into the excavation, and they were prevented from passing to and from their house, barn and shed.
The declaration further states, that the defendants, in constructing their railway, raised upon the northerly or northwesterly side of said piece of land a high embankment, See., near to, and in front of, the house and buildings, so that the plaintiffs could not pass and re-pass to and from
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The opinion of the court was delivered by
Bennett, J.
This is an action on the case, and two questions are involved in the decision, which we are called upon to make. The case comes up, upon exceptions to the charge of the court below, and also upon the decision of the court upon the motion in arrest, for the insufficiency of the declaration, but the questions are substantially the same.
The first question which we shall consider is, whether the plaintiffs are entitled to recover damages, by reason of the defendants’ having made their excavation, in building them railroad, on their own land, so near the plaintiffs’ land as to occasion a portion of their soil to slide into it. If this is an actionable injury, this court, as a court of law, cannot measure its extent. There is no pretence, that the railroad company, in digging the excavation on their 'own land, were in the wrong; neither in so doing, did they remove any of the plaintiffs’ soil directly; but the slide was a consequence of it. It is a familiar law, that if a man build his house so near the line of his adjoining neighbor, that it falls, in consequence of his neighbor’s digging an excavation on his own land, still no action lies for the house.
This principle results from the fact, that a man has an entire dominion over his own soil, and of the space above and below, to any extent he may choose to use it, unless restrained by some covenant, or a counter user, for such a time as to warrant the presumption of a grant. The maxim, “ sic títere tuo, ut alienum non laedas,” [471]*471will not apply, for the reason that your neighbor has no rights to injure. The damages in such case are adventitious, and arise from the fault of the party himself, in putting his house so near the line. If there was a want of due care and precaution, a different result would follow, provided the injury resulted from the want of them.
Vaughn v. Menlove, 3 Bingham, N. C. 464. Frover v. Chadwick, 3 Bingham, 334, and Jones v. Bird, 5 B. & A. 837. The case of Whitcomb v. Vermont Central Railroad Co., decided at the last circuit session at Burlington, went upon this ground. If the house which was undermined had been an ancient one, so that a prescriptive right had been acquired to have it stand upon the line, the maxim, sic utere, &c., would well have applied.
In the ease before us, the plaintiffs’ soil has slidden into the ditch,} and though the damages may be small, still the inquiry is, have ^ the plaintiffs sustained an actionable injury. It should be remark- ;t ed, that they have not laid upon the soil any additional or artificial weight, which facilitated the slide; but it was purely the result of the defendants’ own act. The leading case in Rolli’s Abridgement, (^>65) holds, that if the house with its foundation, (not being an ancient one,) falls, in a case like the one supposed, still no action lies; yet the Reporter adds, “if my soil slides into the.pit, an action will lie for tins.” The distinction made by the Reporter, may seem at first shadowy, but, we apprehend, it is sound and substantial.
The injury is, in depriving the owner of a portion of his soil, to which his right was absolute.' In the other case, no right is violated, and the injury is the result of the party’s own folly, and it may well be said to be damnum absque injuria. The distinction alluded to, as made in Roll, was acted upon hi Thurston v. Hancock, 12 Mass. 220, and regarded as sound. See Hays v. Cohoes Co., 2 Comstock, 159, where the same distinction is made and recognized by Gardner, J. The right of action in such a case does not depend upon negligence. The natural state of the soil has been disturbed, a right violated, and the person causing it must answer for that which is but the natural, if not the necessary, consequence of his act. In Wyatt v. Harrison, 3 B. &• A. 871, it is added, by way of a query, whether an action would not have lain, if the complaint had been that the digging had occasioned a falling in of the soil of the plaintiff, to which no artificial weight had been applied. If there is any error in the decision of the case, in the 12 Mass., it is, I appre[472]*472hend, to be found in the court’s not discriminating between the soil, that fell into the excavation from its own inherent weight, and that which was pressed in by the house. If then the defendants stood as an individual, owning the adjoining fee, we think they could not defend successfully this part of the claim for damages; and can this corporation stand in a more favorable point of view ? They cannot justify the removal of the plaintiffs’ soil, from any powers attempted to be conferred upon them, either by their charter, or the general railroad law; and in Glover v. North Staffordshire Railway Co., 20 L. T. Q. Bench 376, and in 15 English Jurist 673, it was held, that if a railway company does that which would be an actionable injury to land, (unless done under the powers conferred by their act of incorporation,) the owner or occupier is entitled to compensation. So far then, the defendants cannot complain of the charge of the court below.
The more important inquiry is, whether the defendants can be mulct in damages, for extending their excavation across what is called the Stowe road, and the raising of the embankments, for the purpose of carrying the road over the railway by a bridge, that the road might be restored to its former usefulness, by reason of which the plaintiffs were damnified with reference to their house and lot opposite to the road. It does not appear in this case, that the railroad passed over any part of the plaintiffs’ land, but passed over the defendants’ land, and across the adjoining highway, the fee in the soil of which, it is not alleged in the declaration, belonged to the plaintiffs, neither does it appear from the exceptions, that such was the fact, and the action was evidently not predicated or tried upon any such supposed state of facts. Though it may be true, that where a highway passes between the land of A. and B., the presumption prima facie is, that each owns to the centre of the road; yet this is only a presumption of fact, and not of law, so as to become a rule of property, and may at all times be rebutted, and is doubtless founded upon the supposition, that they originally owned the land taken for the highway equally. The declaration is, that the plaintiffs were possessed of a dwelling house, barn, shed and appurtenances thereto belonging, situate in "Waterbury, and that the plaintiffs had the right to pass to and from the same, to the highway leading by said buildings; and that the defendants, in building and grading a portion of their railway, exea[473]*473vated the earth upon the southerly, or southwesterly side of said piece of land, so near the same that the plaintiffs’ soil slid into the excavation, and they were prevented from passing to and from their house, barn and shed.
The declaration further states, that the defendants, in constructing their railway, raised upon the northerly or northwesterly side of said piece of land a high embankment, See., near to, and in front of, the house and buildings, so that the plaintiffs could not pass and re-pass to and from their house, barn and shed, with their teams, &c., into the public highway, by reason of the defendants’ excavation and embankment, and they were rendered worthless thereby, &c.
The evidence showed, that the plaintiffs’ house lot was on the east side of the Stowe road, and lying on the north side of the track of the railroad; and the injury, which the evidence tended to show, was first, the falling of the soil from the plaintiffs’ land into the excavation, by which the passage on the south side of the house on the plaintiffs’ land was narrowed from twelve to nine feet from the house to the edge of the railroad cut; and secondly, the egress to and from the house, and other buildings, to and from the highway, was obstructed, and rendered difficult, by reason of the embankment built in the highway; and the passage on the south side of the house with teams, rendered difficult by reason of the slide, occasioned by the cut on that side. The damages alleged and proved are purely consequential to the making of the cut upon the defendants’ own land, and the building of the embankment in the highway. If the injury from the embankment consisted in building it. upon the plaintiffs’ land, of which they had fee, subject only to the public easement, it should have been so alleged, and then the question would have arisen as to the constitutional power csf the Legislature to authorize a railroad company to construct their road on or across a public highway, without making further compensation to the owners of the fee in the highway. If they had no such power, the act would have been void, and the defendants trespassers. In no case where the Legislature have authorized a railroad company to construct their road on or across a public highway» without making further compensation to the owner's of the fee in the highway, to construct their road across a highway, have they, that I am aware of, required additional compensation to be made to the adjoining land owners, unless such cases may be brought [474]*474within the general provision for assessing damages, where lands have been taken for the purposes of a railroad, of which I have much doubt. The Legislature might have considered a railroad but as a public highway, though to be used in a particular manner, and that in the exercise of their right of eminent domain, they might take private property for the purposes of a railroad, whether to be constructed by the State, or a chartered company; and that when the State are possessed of a public highway, the Legislature might modify or change the mode of using it, without in such case subjecting themselves, or those acting under their authority, to the payment of a further sum in damages for the easement; and that in principle, it was immaterial, whether a common highway was changed to a turnpike or a plank road, or a railroad, and that in either case, the easement was used by the public for the purpose for which it was originally acquired, though in a more beneficial form. But the present case does not raise the question, and of course we do not express any opinion whether the sovereign powder ,of the State can, under our constitution, change the use of a (conpnon highway to a railway, without making further compensa¡.'tionpo the owners of the fee of the highway, as doubtless the use ,of the,way might be rendered more onerous to the adjoining proprietors, in many instances, by grading, than it was while used as a , comiaan highway.
It js;$. serious question, whether the owner of the fee in the common highway, and in the adjoining lands, must not hold it subject to the,p¡ai;ajnoant authority and right of the State to improve the highway by grading and otherwise, so as to render it more suitable •to the, p.ujdic .wants than when first constructed, and be subject al,so t,o. the improved modes of constructing and using public ways, ■whether.as plphk,roads or railroads.
Though the, qase before us may have taken a more extended ar-guipept by cpupsel, than the recent case of Hatch against this same railroad company, deqided at the last circuit session of this court, vholdop,at Bprlingipn..; yet we think, in this point, this case is the .same in principle with that- In neither has there any lands been takpn. fpr railroad purposes, belonging to the plaintiffs, and both are actions for consequential,damages to premises adjoining the public highways, ,w]iich theq’&il-road crossed.
It was.settled in,that easq, that as the railroad charter only re[475]*475quirecl the company to make compensation for lands which were taken for railroad purposes, and did not, as in England and in many of the States, require damages to be paid for lands which were injuriously affected, they could not, by the terms of the charter, be responsible for such consequential damages ; and that the Legislature might, in their exercise of the right of eminent domain, take private property for the use of the public; and that they were not required in a case like that, by the terms of our constitution, to make compensation, for the obvious reason, that simply the affecting of land injuriously, by the construction of their railroad, was not a taking of it for public use, within the purview of the constitution ; and consequently the railroad company were fully justified under the authority of their charter, in building their rail road in a prudent and reasonable manner, and could not be subjeeted'to damages resulting to individuals, whose lands had not been taken by them. I do not feel called upon to vindicate the soundness of that decision. Neither shall I enter into the reasons or the authorities upon which it was founded. Suffice it to say, that has been fully done by the Chief Justice, and I will only add, that the decision is, in my view, according to the adjudged cases. I may be permitted, however, to state, that since the argument of these cases and the decisions agreed upon, I have seen a recent English case, Berkinshaw v. Birmingham & Oxford Junction Railway Co., reported in the 6 Eailway Cases, 609, which is in point, in relation to the construction which we have given the defendants’ charter. The English statute is, “ if any party shall be entitled to any compensation, in “ respect to any lands, or of any interest therein, which shall have- “ leen taken for, or injuriously affected, by the construction/’ &c. In the case in the 6th Eailway Cases, it was held, that “ lands taken” in that section of the statute, mean those, and only those, which are taken into the actual possession of the company. There is no allegation in the present declaration, that the defendants constructed their railroad in an improper manner, or were wanting in due care, and nothing of the kind appeared in evidence, as the bill states.
We do not apprehend the plaintiffs can sustain this action, because it did not appear on the trial, that the alteration of the highway had ever been accepted by commissioners appointed for that purpose, or by the select men of Waterbury. Neither the restor[476]*476ing the highway to its former state of usefulness, as near as may be, or causing the same to be accepted, are conditions precedent to the defendants’ right to cross the highway with their railroad. If, however, they have failed to do it, the company or their agents might be liable probably to an indictment for a nuisance; and the plaintiffs, if they had suffered special damages peculiar to themselves, by the obstruction of the highway, might have their special action for it; but we cannot well see how it could aid the plaintiffs to maintain this suit. We see no reason why the declaration is not good for so much as is actionable in it. The motion in arrest was rightly disposed of in the court below; the declaration might have been met, so far as the matter was not actionable, by a demurrer.
The judgment of the county court must then be reversed, and the case remanded for a new trial.