Willoughby v. Middlesex Co.

Hubbard, J.

Two questions have been discussed in this case ; the one, whether, upon the facts proved, the plaintiff has any legal claim against the defendants; and the other, if he has, whether an action of assumpsit is the proper remedy.

The damage complained of arose from loosening the soil and earth through which the defendants’ drain was laid; in consequence of which, it was less capable of sustaining the weight of the tenements erected by the plaintiff, and he was put to ncreased expense by reason of it.

Whether this was an injury for which the defendants would be liable to any one must depend on the manner in which the work was done. If the drain was unskilfully constructed, and negligently laid, or the earth thrown in, and not replaced in a proper and workmanlike manner, and damage resulted from such want of skill, or negligence, the defendants would be liable for a breach of the condition or covenant which they assumed, on purchasing the right to carry a sewer through the land now owned by the plaintiff. But if the loosening of the earth, and rendering it less fit to build upon, was the natural consequence following from this opening of the ground and laying the drain, then the defendants, having paid for this right, and being guilty of no negligence, have done no act for which they are responsible in damages to any one.

This would present a question of fact for the jury to settle, if it did not appear that the laying of the drain, and the loosening of the earth, complained of in this suit, took place before the plaintiff acquired title to the land. The injury therefore was complete, when. Ames, the plaintiff’s grantor, was the owner. And if the work done by the defendants was performed in so negligent and unskilful a manner as to render them liable in damages, then there was a breach of the condition or covenant, and a right of action immediately accrued to Ames. This right could be enforced only by him; because, whatever estate or right passed by his deed to the plaintiff, this chose in action did not pass: it did not run with the land, but was a mere personal right in him.

It has been argued for the plaintiff, that the damage was sustained by him, as it was not discovered till the house was erected, and so no injury happened till then; and that the right of action accrued on the discovery of the injury. But we are of opinion that the wrong done, if any, for which the defendants would be liable, was complete when they had finished their work; and though the existence of it was not discovered until the plaintiff erected his houses, yet this cannot alter or vary the legal rights of the parties. They result from the act done, and at the time when done, and not from the time of discovery.

On this view .of the case, it becomes unnecessary to settle the fact in question, because quácmque via the plaintiff has no cause of action

If any subsequent injury should be caused to the plaintiff, or those claiming under him, by unskilful or negligent conduct in repairing the drain, the plaintiff may stand on a very different foundation from that on which he is now placed

The form of action also now becomes an immaterial question, and we need not express any opinion in relation to it.

Nonsuit to stand.