Gardner v. Heartt
New York Supreme Court
This was an action on the case, tried before Parker, Cir. J., at the Rensselaer circuit, in April, 1847. -The cause had once before been tried before Willard, Cir. J., and a new trial granted.
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This was an action on the case, tried before Parker, Cir. J., at the Rensselaer circuit, in April, 1847. -The cause had once before been tried before Willard, Cir. J., and a new trial granted. For a statement of the pleadings and a report of the case as then presented, with the opinion of the court, see 1 Denio, 466. Upon the last trial the plaintiff offered in evidence a contract Detween the defendant and several other persons, owners of certain vacant lots in the city of Troy, of the one part, and one Downing of the other part, dated the 19th day of February, 1842, by which Downing agreed…
1Opinion of the Court
By the Court, Harris, J.
The maxim that a man must so make use of his own property as not to injure his neighbor, is undoubtedly to be so limited in its application as not to restrain the owner of property from a prudent and reasonable exercise of his right of dominion. If, in such an exercise of his right, another sustains damage, it is damnum absque injuria. It was therefore a proper question to be submitted to the jury in this case, whether the digging Which caused the slide was done with a cautious regard to the rights of others, or whether he who removed the earth, whoever he might be,…
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