some lingering wretch, and were he to refuse, it were proper he were mulcted in damages. Yet whether such liability should be extended to a case like the one above is doubtful. It will be noticed that we harbor a leaning against the applicant by calling him a wight and a wag, and it would be well for our pharmaceutical friend for his own protection to attach a placard to his night bell, under Bogert v. Haight,20 Barb. 251, limiting the general license to extraordinary cases. Otherwise in the absense of any judicial utterance, it would assuredly seem as though he were liable to at least nominal damages for "if a man takes upon him a public employment, he is bound to serve the public as far as the employment extends."

LEOPOLD LEO.

RIGHT OF CITY TO BUILD WHARF.

MICHIGAN SUPREME COURT, OCTOBER 4, 1882.

BACKUS V. CITY OF Detroit.

Where land abutting on a non-tidal navigable stream was dedicated to a city for a public street, held, that the city was entitled to build a public wharf upon such land along

such stream.

BILL

DILL to restrain defendant, a municipal corporation, from constructing a wharf. From a judgment granting an injunction defendant appealed. The facts appear in the opinion.

Henry M. Duffield, for appellant.

Barbour & Rexford and F. A. Baker, for respondent. COOLEY, J. Complainant is owner of lots numbered 31 to 36, inclusive, on a subdivision of part of the Loranger farm, south of Fort street, in the city of Detroit, being part of private claims 338 and 474. The subdivision was made by a plat duly executed July 24, 1863, by Rosalie Loranger, then the owner, through whose conveyance complainant derives title. The lots all front on the Detroit river, and appear from the plat to be bounded upon it. Between lots 33 and 34 the plat shows a street 30 feet in width extending to the river. In front of lots 34, 35 and 36 complainant has constructed a wharf 285 feet in length, and in front of lot 33 another wharf 270 feet in length. The space between, being 30 feet in width between the side lines of the street extended, has been excavated by complainant for a slip, and is now used by him as such. The title, if any, which remained in Rosalie Loranger to the land under water between the street lines as thus extended, complainant claims to have acquired by conveyance. The city of Detroit however claims that by the plat a way was dedicated, not to the bank merely, but "up to and over the water of the Detroit river to the channel bank thereof, or as far toward the same as should be desirable or necessary to the people of the city of Detroit," and that the dedication so made was duly accepted by the city. The charter of the city confers power upon the common council to erect, repair and regulate public wharves and docks at the ends of streets or on the property of the city, and acting in the assumed exercise of this authority the city has entered into a contract with parties named in the bill for the construction of a wharf in extension of said streets to the outer line of complainant's wharves aforesaid.

This is an injunction bill to restrain the construction by the city of the wharf, for whose construction a contract has been made. The Superior Court granted the relief prayed. It does not appear what use the city proposes to make of the wharf when constructed, and the complainant contests the right to construct it for any purpose whatever. His claim is that the slip

is entirely upon his own land, and that the dedication terminated at the shore. If therefore the city has no authority to construct the wharf for any purpose, the decree from which the city has appealed must stand; but if the city may construct it for some purposes, but not for others, we should assume that the purpose intended was lawful, and sustain the appeal. This is an important question, for it is one that arises in many places, and considerable interests are likely to depend upon it whenever the land affected by the supposed dedication is valuable for commercial purposes. Each party claims that the position contended for is eminently reasonable and just, and asks judgment on that basis. But each party claims also that its contention is sustained by authority.

The river Detroit is a navigable river, in the American sense of that term. The site of the proposed wharf is covered by navigable water. It is not claimed that the wharf, if constructed, will in any degree obstruct or embarrass navigation; and if a private individual were owner of the bank, his right to construct the wharf would be conceded. In examining the case on authority however, we are subject to some embarrassment in the application of cases decided arising from the different rules which prevail in different jurisdictions respecting the ownership of land under navigable waters, and also in the same jurisdictions, depending on the fact that the water is or is not navigable, in the commonlaw sense, as distinguished from the American sense of that term. At the common law the title to all land ou navigable waters below high-water mark is in the sovereign; but navigable waters are only those where the tide ebbs and flows. This rule was so far modified in its adoption in some of the American colonies, as to extend the bank ownership to low water mark; but in other respects it remains the law of this country at the present time. At the common law the owner. ship of the banks of fresh-water streams, whether subject to the public easements or not, extended to the middle of the stream; and if a river was capable of being navigated, the riparian proprietors were at liberty to make any use of the soil under it which was not inconsistent with the public easement, subject of course to the restraining, regulating and controlling authority of the sovereign power. They might therefore erect docks on ground below the line of either high or low water, provided no State regulation forbade, and no actual impediment to navigation was created. These are familiar rules. But in this country so many large rivers exist, with a capacity for navigation quite beyond that of any fresh-water stream known to the common law, that some eminent judicial tribunals have thought that the common-law rule of riparian ownership should be modified to adapt it to the different circumstances. They have therefore held that upon the large fresh-water streams of the country, which are navigable in the popular sense of that term, the riparian ownership must be limited to the water-line,- whether high-water line or low-water line has not always been indicated; and that while the public have an easement in the use of the water beyond that line, the State itself is owner of the soil under the water. This is the rule declared, or by implication recognized, in Wilson v. Forbes, 2 Dev. 30; Collins v. Bunting, 3 Ired. 277; s. c., 5 id. 118; State v. Glen, 7 Jones (N. C.) 321; Bullock v. Wilson, 2 Port. 436; Thurman v. Morrison, 14 B. Mon. 367; Morrison v. Thurman, 17 id. 249; State v. Jersey City,25 N. J. 525; McManus v. Carmichael, 3 Iowa, 57; Haight v. Keokuk, 4 id. 199; Tomlin v. Railroad Co., 32 id. 106; Bainbridge v. Sherlock, 29 Ind. 364; Bailey v. Railroad Co., 4 Harr. 389; Bates v. Illinois Cent. R. Co., 1 Black, 204; Barnes v. Keokuk, 94 U. S. 324; Wood v. Fowler, 26 Kans. 682. Some of these cases go so far as subtantially to deprive the owner of the bank of all riparian rights whatever,

and to limit his privileges within the lines of his ownership, one boundary of which is held to be the river bank.

Thus in Bailey v. Railroad Co., supra, it was held to be within the power of the State to permit a railroad company to construct a closed bridge across a navigable river, and that riparian proprietors above had no cause of action for the resulting injury. In Wood v. Fowler, supra, the bank proprietor on the Kansas river was held to have no right of action or interference as against a stranger cutting and removing the ice which formed immediately in front of him; and in Tomlin v. Railroad Co., supra, the authority of the State to permit a railroad company to take possession of the land below ordinary high-water mark on the Mississippi river, and to cut off the bank proprietor from access to it, was sustained. But in any view that may be taken of the line of ownership, the cases last cited appear unsound, and in the recent case of Ry. Co. v. Renwick, 102 U. S. 180, the better and more sensible doctrine is laid down that the land under the water in front of a riparian; proprietor, though beyond the line of private ownership, cannot be taken and appropriated to a public purpose without making compensation to the riparian proprietor.

Other courts have not considered that the greater size of the American rivers was a circumstance that should vary the rule of private ownership on navigable fresh-water streams, and that they have held to and applied the common-law doctrine that the line of private ownership is the middle of the stream. Adams v. Pease, 2 Conn. 481; Stuart v. Clark, 2 Swan, 9; Gavit's Adm'r v. Chamaers, 3 Ohio, 496; June v. Purcell, 36 Ohio St. 396; Walker v. Board of Public Works, 16 Ohio, 540; O'Fallon v. Daggett, 4 Mo. 343; Middleton v. Pritchard, 4 Ill. 510; Canal Trustees v. Haven, 10 id. 548; Houck v. Yates, 82 id. 179; Washington Ice Co. v. Shortall, 101 id. 46; Ingraham v. Wilkinson, 4 Pick. 268; Commonwealth v. Chapin, 5 id. 199; Knight v. Wilder, 2 Cush. 199; Canal Com'rs v. Kempshall, 26 Wend. 404; Browne v. Kennedy, 5 H. & J. 195; Jones v. Pettibone, 2 Wis. 308; Mariner v. Schulte, 13 id. 692; Arnold v. Elmore, 16 id. 509; McCullough v. Wall, 4 Rich. 68; Brown v. Chadbourne, 31 Me. 9; Rundle v. Delaware, etc., Canal Co., 1 Wall. Jr. 275; Hart v. Hill, 1 Whart. 124; Morgan v. Reading, 11 Miss. 366; Steamboat Magnolia v. Marshall, 39 id. 110; Minto v. Delaney, 7 Or. 337; Moore v. Wilamette, etc., Co., id. 355; Schurmeier v. Railroad Co., 10 Minn. 82 (Gil. 59.) And these cases, so far as they declare the principle mentioned, have had the approval of this court. Lorman v. Benson, 8 Mich. 18; Ryan v. Brown, 18 id. 196; Watson v. Peters, 26 id. 517; Bay City Gaslight Co. v. Industrial Works, 28 id. 182.

The reason is well stated by Hosmer, J., in Adams v. Pease, 2 Conn. 481, 484, when he says that the doctrine of the common law, to which we adhere, "promotes the grand ends of civil society by pursuing that wise and orderly maxim of assigning to everything capable of ownership a legal and determinate owner. See Richardson v. Prentiss (Mich.), 11 N. W. Rep. 817. If therefore according to the law, as it exists and is recognized in this State, the strip of land which constitutes a street extending to the river banks between lots 33 and 34, had been granted by Loranger to an individual, the grantee, or any one claiming under him, would have had an undoubted right to construct the wharf in question. As before stated, it interferes in no manner with the navigation, and the ostensible purpose in constructing it is to aid navigation, not to hinder or embarrass it. But the strip of land was not granted to an individual, but was dedicated to the use of the public as a street. The city is not the public, though it represents the public for all the purposes of control, repair and improvement of the street. The

plat, under the statute which was in force when it was made and recorded, passed the fee in all streets marked upon it to the county in which the city is situated, (Comp. Laws, § 1345); but this was only in trust for street purposes. We attach no special importance to the fact that the title passed instead of a mere easement. The purpose of the statute is, not to give the county the usual rights of a proprietor, but to preclude questions which might arise respecting the public uses other than those of mere passage, to which the land might be devoted. The common-law dedication would be sufficient to stop the owner from setting up any claim, or asserting any right to the prejudice of the easement. Cincinnati v. White's Lessee, 6 Pet. 431. Hunter v. Sandy Hill, 6 Hill, 407; Dubuque v. Maloney, 9 Iowa, 450; Schurmeier v. Railroad Co., 10 Minn. 82 (Gil. 59); Brown v. Manning, 6 Ohio, 275; s. c., 27 Am. Dec. 255; Tingee v. Baltimore, 51 Md. 600;- and this is all that is important here.

Complainant refers to several cases in support of his view of the case. Boston v. Lecraw, 17 How. 427, seems to us to have no important bearing. A street was laid out to high-water mark on tide-water. By the law of Massachusetts, the land between high-water mark and low-water mark was subject to grant and individual enjoyment, and it had been granted to and held by the town of Boston. From the end of the street, at high-water mark, across this private domain of the town, which undisputably the town might improve and occupy, Lecraw claimed that the public had acquired a right of passage by dedication. This was the point of contention in the case, and was decided in favor of the town. The subsequent case of Richardson v. Boston, 19 How. 263, and 24 id. 188, throws no light upon this controversy.

In Kean v. Stetson, 5 Pick. 492, the right to lay out a town road between high-water and low-water mark on tide-water was decided. The reason assigned was that the town highway would impede more or less the public right of passage in the natural highway already existing; and this could not be done by the towns without license from the Legislature. The same ruling had previously been made in Commonwealth v. Charlestown, 1 Pick. 180, and was sanctioned in Simmons v. Mumford, 2 R. I. 173. But no doubt under proper legislative authority the road might have been laid, though whether it could or not seems unimportant to the question whether a bank proprietor, whose ownership to the center of the river is conceded, must limit or must be presumed to limit his dedication to the shore line.

--

Prosser v. Wappello County, 18 Iowa, 327, though having more apparent relevancy, is really no more important. It must be borne in mind that in Iowa the boundary of private ownership on navigable freshwater rivers is at the bank. It was proposed to lay out a public highway across the land of a non-consenting proprietor to the river Des Moines, and the land owner contended that this would deprive him of an existing ferry landing, and enable the landing to be made use of for the ferry of a third party. On this contention he claimed large damages. The court held - First, that no ferry could be established there except under the grant of a franchise, and that he, as land owner, would have the first claim to such a grant-following, as to this, Memphis v. Overton,3 Yerg.387; and second, that laying out a highway to the river bank would not entitle the holder of a ferry franchise, not being the owner of the land, to make the highway a ferry landing. The reason for this second conclusion was that the appropriation of the land for a highway was the appropriation for an easement over land only and not over water, that the fee remained in the original owner, and to take it for a ferry landing would be the imposition of a new burden upon it, entitling

the owner to further compensation. Whether this is correct or not we do not care to question. Compare Murray v. Menefee, 20 Ark. 561. It is enough for our purposes that the decision is grounded upon the private ownership in the land, subject to the easement, which of itself will sufficiently distinguish the case from this. Here the fee passed from Loranger by the dedication, and the street became subject to all the ordinary uses of city streets. And one of these uses is for a ferry landing when a franchise for the purpose has been obtained.

There are a number of cases favoring the right of the city which are more directly in point, and some of which are referred to by counsel.

In Barclay v. Howell's Lessee, 6 Pet. 500, 511, it is declared that if a street, as laid out, is bounded by a navigable river, it is limited on that side only by the public right. "To contend that between this boundary and the public right a private and hostile right could exist, would not only be unreasonable but against law."

In People v. Lambier, 5 Denio, 9, it was decided that a proprietor, through whose land a highway extended, terminating on navigable water, could not, by filling up the land in front, obstruct the public right of passage from the land to the water; but that the street was, by operation of law, extended from the former terminus, over the newly-made land to the water.

This decision was approved in Newark, etc., Co. v. Newark, 15 N. J. Eq. 64, and the court in that case disposes of some objections which are suggested by the cases from Massachusetts before referred to. "It is objected," says the court, "that a highway cannot be laid across a navigable river. It may be admitted that there is no subsisting highway for horses or carriages in the channel of the river. But it is enough for all the purposes of this cause that the survey carries the highway to the river, and wherever the river is found there the highway extends. If the shore is extended into the water by alluvial deposits, or is filled up by the proprietor of the soil, the public easement is, by operation of law, extended from its former terminus over the new-made land to the water. The owner of the soil, in whom the unquestioned title is, caunot by filling in and thus extending his land toward the water, obstruct the public right of way to the river." The same doctrine had been previously laid down in Jersey City v. Morris Canal & Banking Co., 12 N. J. Eq. 547, and it is reiterated in Hoboken L. & I. Co. v. Hoboken, 36 N. J. 540. In this last case it is held that if the State authorizes private individuals to fill in and appropriate the water front, a street running to the water is extended as the filling goes on.

That accretions in front of land dedicated to public use go to increase the land thus dedicated is decided in New Orleans v. United States, 16 Pet. 662; Godfrey v. Alton, 12 Ill. 29; Cook v. Burlington, 30 Iowa, 94, as well as in the New Jersey cases referred to.

In Barney v. Mayor of Baltimore, 1 Hughes, 118, it is decided that if one dedicates a street which runs to navigable water, he thereby surrenders it for use as a wharf where vessels may load and unload. The same principle seems to be recognized in Dugan v. Baltimore, 5 Gill & J. 374, and is more formally declared in McMurray v. Mayor of Baltimore, 54 Md. 103. In that case the following language is used: "In our judgment the dedication of Coon street to the public use as a street extending to the water, carried with it by necessary implication the right of the city to extend it into the harbor by the construction of a wharf at the end thereof." Authority therefor is very clearly and decidedly with the city, and the cases which favor its claim make no account of the question whether the title to the land under the water was or was not in the proprietor of the shore,

But an argument on the statute is made for complainant which requires some attention. The statute for making and recording town plats requires that the plat shall particularly set forth and describe all streets, etc., by their courses, lengths, widths, etc. Comp. Laws, § 1345. The plat in this case gave the width of the street which was laid down upon it, and also by giving the dimensions of the lots gave the length also. The argument is that the plat dedicated to public use so much in width and so much in length, and no more, limiting the donation within the exact lines which would give that length and breadth. If this is the case, the proprietor might immediately, on recording the plat, have proceeded to take possession of the land at the end of the street; might have erected across it a barrier to prevent the public having access to the navigable water; might have sold it for the purposes of a warehouse, or made any other use which a private owner may lawfully make of his own possessions. It cannot be questioned that if she had asserted, exercised and been sustained in any such a right, it would have been a surprise to people purchasing lots embraced in the plat. They must have supposed that in dedicating a way to the river she was giving to the public access to the river, and not merely to a wall on its bank or some other obstruction put up to preclude access. It must have been understood by them, as it was by an eminent court under the circumstances of a similar dedication, that "the purpose was to provide means of access for the public to the navigable waters," and that "such was the scope and purpose of the dedication." Hoboken L. & I. Co. v. Hoboken, 36 N. J. 540-546. If Loranger had sold off every lot on her plat would it have entered into the head of any of her grantees that she still had upon the plat something which was salable? We think not. Whatever on the plat was not marked off as lots was dedicated to the public, and as the grant to an individual, when bounded by the water, extended to the middle line of the river, so the gift to the public had a similar extension. The dedication to the shore line no more had the effect to restrict the public use to that line than would a grant that was similarly bounded. The gift in the one case and grant in the other is to the river, and leaves in the donor or grantor nothing beyond.

But it is not to be inferred, from what is above said, that in our opinion the city has a right to appropriate the end of the street to private uses, or to any uses inconsistent with the dedication. It would be premature for us to undertake to indicate precisely what the city may and what it may not do, since the question is not now before us. It is enough for us to say that the city derives its authority from the dedication of the public way, and that the construction of a wharf which shall give the means of access from the highway by land to the highway by water, is not inconsistent with the gift.

The decree must be reversed and the bill dismissed with costs of both courts.

LIABILITY OF OWNER OF BUILDING FOR NEGLIGENCE OF BUILDER.

ENGLISH COURT OF APPEAL, APRIL 19, 1882.

PERCIVAL V. HUGHES, L. R., 9 Q. B. D. 441. The defendant was the owner of a house standing at the corner of two streets, between a house belonging to the plaintiff and a house occupied by B. The defendant being desirous of rebuilding his house employed a competent architect and competent builders to rebuild it. The defendant's new house was a story higher than the old house and the basement was lower. After the house had been nearly finished, the workmen employed by the builders

began to fix a staircase; in so doing they negligently and without the knowledge of the defendant or his architect, cut into a party wall dividing the defendant's new house and B.'s house. In consequence the defendant's house fell, and the girders having become displaced, injury was done to the plaintiff's house, for which he now sued the defendant. The fixing of the staircase was not in itself a hazardous operation, if it had been carried out with ordinary skill.

Held, that an action was maintainable against the defendant for the injury done to the plaintiff's house.

ACTION for negligence in taking down two houses

standing on the defendant's land and in erecting a new house, whereby the adjoining house of the plaintiff was injured.

The cause came on for trial at Westminster, on the 3rd and 4th of December, 1880, before Manisty, J., and a special jury, when the following facts were in substance detailed by the plaintiff's counsel in his opening address.

The defendant was the owner of a piece of land at the corner of Panton street and the Haymarket, upon which stood two old houses, Nos. 1 and 2, Panton street. The plaintiff was the owner of No. 3, Panton street, which immediately adjoined the defendant's houses on the east side thereof. Between the defendant's houses and the plaintiff's house was a party-wall. On the south side of the defendant's house and immediately adjoining it there stood in the Haymarket a house occupied by one Baron. Between the defendant's houses and Baron's house also was a pai-wall, which was stated to be rotten. The defendant being desirous of pulling down his two old houses and rebuilding a new house in their stead, employed a competent architect to prepare plans and to superintend❘ the operations, and employed Newman & Mann as builders to execute the work. The old houses were pulled down, and the new house was built upon the defendant's land and nearly finished without injury to the adjoining houses. The party-wall between the defendant's and Baron's houses was taken down as far as the first floor, but it was left standing to the depth of twenty-two feet, and then twenty-five feet of new work was built on the top of what remained of it. The wall was underpinned to a considerable extent. From the old part of the wall an iron girder was placed to support the first floor of the defendant's new house. Some of the girders of the defendant's new house were fixed against the party-wall next the plaintiff's house. When the defendant's house had been nearly finished, it became necessary to fix a staircase, and in order to fix it the workmen of the builders cut into the partywall between the defendant's house and Baron's house to the depth of a few inches and to the height of about twenty feet, and to the width of about seven feet. The defendant's architect raised some objections to the proceedings of the builder's workmen in cutting away the wall. Very soon afterward the defendant's house fell; by the fall the party-wall between the plaintiff's house and the defendant's house was dragged over, and the walls of the plaintiff's house were cracked and the house itself was damaged.

This statement of facts not being disputed by the defendant's counsel, without any witnesses having been examined, the learned judge stated that there was a prima facie case of liability against the defendant which required an answer.

The defendant's counsel then proceeded to address the jury. He admitted that the new house of the defendant was to be a story higher than the old houses; but he stated that the defendant employed Mr. Wimple the architect to prepare plans which were accepted by him; that he entered into a contract with Newman & Mann, the builders, for the execution of these plans; that by the terms of that contract, except to comply with the provisions of some statute, no deviation from

those plans was to be committed without the authority of the defendant. The plans showed that the partywall between the defendant's two houses and Baron's house was to be rebuilt, The defendant himself did not personally interfere with the work during its progress, and never authorized any deviation from the plans. But in the course of the work it was agreed between Mr. Wimple and Mr. Wimperis, an architect acting for the owner of Baron's house, that the partywall between the defendant's old houses and Baron's house should be taken down only as far as the first floor, and that the wall should be underpinned in order to strengthen it, the basement or cellar of the defendant's new house being excavated to a greater depth than the basement of the defendant's old houses. The party-wall was accordingly taken down only as far as the first floor, instead of being wholly removed as provided for in the plans, and it was underpinned in order to give it additional strength. This was done without any signs of weakness, fracture, or settlement appearing in the party-wall. From the first floor the party-wall was newly erected. The work proceeded, girders were placed in the ordinary manner, and the house was roofed in. It became necessary to fix a wooden staircase from the basement, which was not in itself a hazardous operation; but the workmen of the builders, without any knowledge of the foreman of the works or of the defendant's architect, cut into the old part of the party-wall next Baron's house; this act was not permitted by the plans or specification, and was wholly unauthorized. Mr. Wimble, the defendant's architect, visited the works, and seeing the mischief which had been done, ordered it to be made good. Signs of weakness began to appear, and upon the very same night the defendant's house fell, injuring thereby the plaintiff's house in the manner above described.

At the close of the opening address of the defendant's counsel, the learned judge intimated that even if the defendant proved by evidence all that had been alleged upon his behalf, he would have no defense to the action, and he directed the jury to find for the plaintiff, the damages to be agreed upon between the parties, or to be ascertained by an arbitrator.

The defendant obtained in the Queen's Bench Division, a rule to set aside any judgment which might be entered for the plaintiff and to enter it for the defendant, or for a new trial.

The rule came on for argument on the 2nd of June, 1881, before Lord Coleridge, C. J., Manisty and Bowen, JJ., sitting in the Queen's Bench Division.

Ultimately, on the 21st December, 1881, the judgment of the court discharging the rule was delivered by

BOWEN, J. It appears to us that the learned judge was right in his view of the law. The defendant being bound to do nothing to deprive the plaintiff's house of its support, had employed contractors to execute works which might endanger it. The defendant could not relieve himself of the responsibility arising from such an operation simply by employing competent contractors. It still remained the defendant's duty to see that effectual means were adopted to prevent any damage arising to the plaintiff's premises during the progress of the work, which was likely to be injurious unless sufficient precautions were adopted, and for which he himself had given the order.

It was argued before us that the mischief was caused by a negligent act of commission on the part of the contractors' men, done without orders. But this distinction cannot avail the defendant in the present instance. If the only duty cast upon the defendant had been the negative duty of abstaining from all acts which would damage the plaintiff's premises, it might with reason be argued that an act of commission done by workmen in violation of their instructions rendered

neither the contractors, their immediate masters, nor the defendant himself liable. But the duty of the defendant went further. It was to see that at all times during a hazardous operation set in motion by his order effectual support was given to his neighbor's house. This was a positive obligation, not a negative one. He was bound, not merely not to sanction injury but to prevent it; for willful acts of mischief he might not indeed be responsible, but it was his duty to hinder negligence whether in the shape of acts of omission or commission.

As the defendant has failed to fulfill this duty, the plaintiff is entitled to succeed. The case appears to us to fall within the principle of Bower v. Peate, 1 Q. B. D. 321, which must, now be taken to have superseded Butler v. Hunter, 7 H. & N. 826, so far as the cases are in conflict. See Dalton v. Angus, 6 App. Cas. 829. The rule must accordingly be discharged with costs. The defendant appealed.

Philbrick, Q. C., and Douglass Kingsford, for defendant.

The question is whether the facts of this case fall within the authority of Bower v. Peate; but that case is distinguishable, for the defendant intentionally caused an interference with the plaintiff's right of support.

[HOLKER, L. J. It has long been held that it is no defense to an action for intentionally interfering with a right of support, that the wrong-doer employed a competent contractor.]

In the present case the damage to the plaintiff was the result of an improper mode of executing a piece of work of a harmless description, for the fixing of the staircase was not in itself hazardous; the cause of the injury was an act purely collateral to the main scheme. The staircase was intended by the defendant's architect merely to touch the party-wall. The judgment of the court below has confounded the work of fixing the staircase with the dangerous operation of pulling down the defendant's two houses. An original contractor is not liable for the negligent acts of a sub-contractor: Rapson v. Cubitt, 9 M. & W. 710. In order to make an employer responsible for the act of a contractor, the act causing the injury must be either hazardous in its nature or an invasion of a neighbor's right. Gayford v. Nicholls, 9 Ex. 702, decided in 1854. To rebuild a house is an ordinary undertaking in a town, and to give judgment for the plaintiff will do away with the rule exempting an employer from liability for the acts of a contractor and his servants. When a person employs a contractor to do a lawful act, it must be presumed that by the terms of the employment the act was to be done in a lawful manner, and the employer is not responsible for negligence of the contractor in doing the act. Butler v. Hunter. Where the work to be done is not of a hazardous character in itself, the employer is not liable for the acts of the contractor unless the latter is employed to do unlawful acts. Ellis v. Sheffield Gas Consumers Co., 2 E. & B. 767; or unless the contractor is employed to do something which the employer is bound by statute to do. Hole v. Sittingbourne Ry. Co., 6 H. & N. 488.

W. G. Harrison, Q. C. (R. A. McCall, with him), for plaintiff.

The defendant undertook to carry out a dangerous operation; and he is liable for the negligent act of the servants of the contractor. It was improper to cut into the party-wall, which probably was in an unsafe condition. Even if the fixing of the staircase was not in itself dangerous, the undertaking of pulling down the defendant's two old houses and of erecting and finishing a new building must be viewed as a whole. Lemaitre v. Davis, 19 Ch. D. 281, at p. 292, per Hall, V. C.

[PER CURIAM. That case does not help us, because there the acts of the contractor which caused the mischief were done under a contract and a specification.]

BAGGALLAY, L. J. I am of opinion that this appeal must be dismissed. The defendant caused certain works to be undertaken in the neighborhood of the Haymarket, in order to build a house on ground belonging to him. On the sides of the defendant's new house were party-walls dividing it from the plaintiff's house and also from Baron's. Girders were fixed into the party-walls, and they required proper support, but the foundation was weakened and the girders were let down, and the mischief was thus caused. The work of rebuilding was hazardous from the circumstance that the party- walls required support; they in turn supported the houses upon either side. There was some ground for believing that the party-wall next Baron'shouse was dangerous from age; the defendant's house was a story higher than the two former houses, and the cellar was re-made, and some underpinning of the walls was necessary. The hazard to the neighboring houses was very materially increased, and every precaution ought to have been taken. The workmen however committed a dangerous act, and the architect in the course of his employment having observed it, directed measures to be taken in order to remedy it. Before the mistake could be remedied, the foundation gave way and a settiement took place, causing the downfall of the defendant's house and injury to the plaintiff's.

I am at a loss to understand how this appeal can succeed. There was an omission on the part of the defendant to fulfill a duty which is imposed upon a building owner; it was his duty to prevent negligent acts, whether of omission or commission. I agree with the judgment of the Queen's Bench Division. A duty was imposed upon the defendant to take care that the girders of his new house did not slip out of their places.

BRETT, L. J. The main question is, was there any duty due from the defendant to the plaintiff, and to auswer this question it is necessary to consider the circumstances under which the alleged duty arose. In starting, I may say that the party-wall between the defendant's house and Baron's ought not to have been tampered with; it was the wrongful act of the workmen in cutting into it which caused the mischief. The defendant undertook to pull down two old houses standing on ground belonging to him, and to erect in their place a new building; could he do that without danger of injury to the plaintiff's house? It was in effect admitted that he could not, especially as the new house was to be deeper and higher. The duty was so to do the work of rebuilding as not to injure the adjoining owners. The defendant was bound to take al reasonable means to avert danger. The duty began immediately after he undertook the work, and ended only when the new house was so built up and finished as to be a support to the plaintiff's house. During that time is the defendant liable only for the things which he has done, or at least has ordered to be done? The defendant cannot delegate his duty so as to get rid of his liability. A negligent act was committed in the course of re-building; the workmen of the contractors employed by the defendant tampered with the partywall so as to cause injury to the plaintiff's house. The negligent act was committed long after the undertaking was commenced, in fact it was nearly concluded; but the negligent act was committed before the whole intention was carried out. The workmen did something which they were not ordered to do; but they did it with the inteution of doing work for the benefit of the defendant; the result is the same as if the architect himself had ordered the act to be done; for the wall was tampered with before the whole undertaking was finished. The negligent act was done