dissenting.
I respectfully dissent for the reason that this does not seem to me to be a negligence situation, but rather a question of determining the rights granted by an easement. The complaint is not about the manner in which the work was done.
I agree that the easement was the dominant estate and that respondent Thompson had the right to use his dominant estate. However, he must use it so as not to injure unreasonably the adjacent property. This would be true if he had acquired the fee to the road strip. Why should it not apply to an adjacent easement — less than the fee? And does it make a difference that the adjacent fee extends to the middle of the road? I see no reason why it should. If the easement owner wishes to cross a gully with his road he should put in a culvert so as not to back water over the adjacent property. The fact that the easement is the dominant estate would not give him the right to damage the adjacent fee by backing water over it. I cannot see that there is any question of negligence involved. As I understand the majority opinion, an act done negligently (without due care) imposes liability while the same act done deliberately escapes liability. This brings the distinction down to the mental attitude of the actor, which, in my opinion, should be immaterial. Does it make a real difference whether the operator of a bulldozer carelessly cuts away lateral support while doing something else — say, just to get dirt for a fill, or why he does it at all? The overt act should govern.
The case of Lone Star Gas Co. v. Hutton, 58 S.W. 2d 19, volved a pipe line easement. The court said:
“* * * If grantee (under an easement) exercised the rights conferred in the conveyance with due care and without negligence, then no damages were recoverable. * * *”
“To hold in the face of the provisions contained in the deed that the gas company was not permitted to enjoy those privileges free from damages necessarily incident to the enjoyment of those rights, and permit the assessment of damages not due to the result of negligence or care on its part, would be a violation of its legal rights. The burden rested upon Hutton and wife to allege and prove that the gas company was guilty of negligence in this respect.”
*283I do not question this statemest of the law, but that does not solve the case at bar. In that case the company contended that the injury was caused by “means beyond its control.” Here the injury was caused by a deliberate act of the defendant. And the whole question is whether the right to cut away lateral support was a right “conferred in the conveyance.”
I would not resolve this question by the negligence formula but upon the basis of whether or not the facts at bar were a reasonable exercise of the rights granted in the easement. As for myself, I would hold that a retaining wall or natural retainer (grass sod) to support the sides of a cut is necessary for there to be a reasonable use of a road easement. Some years ago it might not have been considered reasonable to require that in constructing a road the naked sides of a cut be protected from washing and sloughing by a blanket of sod or other retaining device. Today this is required on virtually all public construe-' tion. What is unreasonable in one generation may be very reasonable in the next. If the respondent wished to make a cut in order to use his dominant estate, he should have covered the exposed cut.
Opinion delivered March 11, 1953.
Rehearing overruled April 22, 1953.