If the plaintiff had wantonly erected his wharf where he did, with the intention of exposing his property to destruction and bringing damage upon himself, in order that by so doing he might aggravate the consequences of the defendants' wrongful act in building their bridge in an improper or unsuitable manner, a different question would be presented. But it seems to me the charge does not bear that construction. It is true, the jury were told that the plaintiff had no right to take advantage of the acts of the defendants to their prejudice, which, taken by itself, looks somewhat in that direction, although it is not perhaps entirely clear what was meant by taking advantage of the defendants' acts to their prejudice. But the difficulty is, the jury were further told that if the defendants' acts were wrongful, nevertheless, if the plaintiff would not have been injured had he allowed his property to remain as it was before the wrongful acts of the defendants, the defendants were not liable. The effect of which was, to deprive the plaintiff of all right to make a reasonable and customary use of his property *Page 215 in order to protect the defendants against the natural consequences of their own illegal act. He must so use his own as not to receive injury from the misconduct and wrong of his neighbor. This is not only an inversion of the rule Sic utere tuo ut alienum non laedas, but it adds the extraordinary mandate that you shall not use your own at all, if by so doing you incur a liability to be injured by the trespass or other wrongful act of another.
Some remarks of BEARDSLEY, J., in Cook v. The Champlain Transportation Co., 1 Den. 91, 100, 101, are so pertinent that I quote them. "It would be a startling principle indeed, that a building, placed in an exposed position on one's own land, is beyond the protection of the law; and yet it comes to this result upon the argument urged in this case. A land-owner builds immediately on the line of a railroad, as he has an unquestionable right to do; — it may be an act of great imprudence, but in no sense is it illegal. Is he remediless if his house is set on fire by the sheer negligence of an engineer in conducting his engine over the railway? * * The owner of a lot builds upon it, although in close proximity to the shop of a smith. The house is more exposed than it would be at a greater distance from the shop: but is this to exempt the smith from the obligation of care and to screen him from the consequences of his own negligence? "Several other apt illustrations are given, and the learned judge concludes: "We may run through every imaginable variety of position, some of more and some of less exposure and hazard, and we must at last, I think, come to the conclusion that, while a person confines himself to a lawful employment on his own premises, his positions, however injudicious and imprudent it may be, is not therefore wrongful; and that his want of due care and judgment in its selection can never amount to negligence, so as thereby to deprive him of redress for wrongs done to him by others."
I think it is impossible to sustain this part of the charge, and that for this reason the verdict must be set aside.
The ruling, that the award of the commissioners must be held to cover all damages which would result to the plaintiff from a suitable and proper construction of the railroad across his lands, was correct.
As to the requests, some of them seem to be quite unobjectionable; but at the same time, with the exception already pointed out, the charge appears to cover the whole ground, and to include everything in the requests that was germane, or called for by the facts in the case.