Company v. Shanahan , 65 N.H. 233 ( 1889 )

The city had authority to construct the sewer. G. L., c. 48, s. 8, c. 78, s. 6. If the plaintiffs have any interest or easement in the soil of the city streets, no part of it was taken for the sewer. They have now the same unimpaired right or interest which they had before the sewer was constructed. No damages could have been awarded the plaintiffs for a taking of their property under the law of eminent domain (G. L., c. 48, s. 8, c. 78, s. 13), if all that happened in the process of building the sewer had been foreseen. Kennett's Pet., 24 N.H. 139; Pet. of Mt. Washington Road Co., 35 N.H. 134; Eaton v. B. C. M. R. R., 51 N.H. 504; Thompson v. Androscoggin Co., 54 N.H. 545. The right of the city to build the sewer was at least equal to that of the plaintiffs to maintain their gas pipes in the street. Assuming that their rights were equal, each was bound so to exercise his right as not unnecessarily, unreasonably, or negligently to interfere with the other's right, and would not be liable in damages so long as he did so. National Water-Works Co. v. City of Kansas, 28 Fed. Rep. 921. It is found that the use of explosives, and the uncovering, exposure, and undermining of the plaintiffs' pipes, by the defendant, were necessary; in other words, that the sewer could not otherwise be constructed. The defendant was the city's servant or agent. In building the sewer, he could lawfully do whatever the city could do. He was authorized to do what was necessary to be done in the construction of the sewer. He did nothing more, and he exercised ordinary care to prevent injury to the plaintiffs. He was not in fault, and is not liable. Brown v. Collins, 53 N.H. 442; Lyons v. Child,61 N.H. 72; Holmes v. Mather, L. R. 10 Exch. 261, 268, 269. A householder, whose dwelling was destroyed or injured, or who was personally wounded by rocks blasted from the sewer by the defendant, could not recover damages, unless the blasting, being in itself lawful, was negligently done — unless the defendant by ordinary care could have prevented the injury. Nashua Iron Co. v. W. N. Railroad, 62 N.H. 159.

Judgment for the defendant.

BLODGETT, J., did not sit: the others concurred.