York Cent. & H. R. R. Co. 66 N. Y. 181, 23 | The excavation would probably endanger the Am. Rep. 37. Mr. Eugene S. Ives, for respondents: The necessary effect of the contract whereby the defendants employed Mr. Goodwin was the trespass and the damage consequent thereupon. Under such cases the employer as well as the contractor is liable. Pierrepont v. Loveless, 72 N. Y. 211; Atlanta & F. R. Co. v. Kimberly, 87 Ga. 161. The claim of the appellants to the effect that the defendants had a right to enter upon the premises of the plaintiffs without permission is not sound. Johnson v. Oppenheim, 55 N. Y. 286. Andrews, Ch. J., delivered the opinion of the court: The entry by the contractors upon the premises without the license and against the protest of the plaintiffs was a trespass, and rendered them liable for the damages sustained by the plaintiffs to their possession, and to the merchandise in the store, resulting from the unlawful entry. The liability would extend also to any person who advised or directed the unlawful acts. It was upon this principle that the court charged the jury that the defendants were liable if the entry was without the license of the plaintiffs. The court regarded the contract made by the defendants with the contractors as in law a direction by them to the contractors to commit the trespass complained of. If this view is well founded, there was no error in the charge. But we are of the opinion that the construction placed upon the contract by the trial judge is not warranted. The Goodwins were independent contractors. This was so ruled by the court on the trial, and was conceded on the argument here. This fact is only important to exclude any liability founded on the ordinary relation of master and servant. Where this relation exists, the master may be liable for the wrongful act of the servant, although committed without his authority, and even in violation of his instructions, provided it was committed in the business of the master, and within the scope of the servant's employment. Higgins v. Watervliet Turnp. & R. Co. 46 N. Y. 23, 7 Am. Rep. 293. But where a trespass has been committed upon the rights or property of another, by the advice or direc adjacent wall of the building of the plaintiffs. No common-law duty was imposed upon the defendants to shore up or protect the wall from injury. The building of the plaintiffs had no easement of support by the land of the defendants. The rule of the common law placed the burden of protecting the wall from injury from the excavation upon the owners of the wall. The defendants were bound only to the exercise of reasonable care in making the excavation, doing no unnecessary damage. Dorrity v. Rapp. 72 N. Y. 308, and cases cited. Under the common law they had no right to enter upon the premises of the plaintiffs to shore up the wall, nor would they have been under any duty to do so, even if they were permitted by the owners of adjacent premises. The legislature, recognizing the hardships imposed upon owners of improved property by the rule of common law, intervened by the Act, chapter 6 of the Laws of 1855 as to the cities of New York and Brooklyn. By that Act the duty was imposed upon lot owners proposing to excavate their lots to the depth of more than 10 feet below the curb to protect at their own expense a wall on or near the boundary line of adjacent premises from injury from such excavation, "if afforded the necessary license to enter on the adjoining land, and not otherwise." The contract between the defendants and the contractors was made under this condition of the law. The defendants contemplated an excavation on their lot more than ten feet in depth. The Law of 1855 cast upon them the duty to protect the wall on the lot of the plaintiffs, "if afforded the necessary license to enter" for that purpose. The defendants made the contract, as is to be inferred, without having obtained the permission of the plaintiffs to enter upon their premises, but upon the assumption that the permission would be given. The contractors bound themselves to do the shoring "as required by law." They were not authorized by the contract to enter the adjacent premises without permission of the owners and occupants. It was necessarily implied that they were employed to discharge the obligation imposed upon the defendants by the Act of 1855, and it was a prerequisite that the consent of the owners or occupants should be obtained before entry could be lawfully made. The tion of a defendant, it is wholly unimportant defendants neither in terms authorized an entry what contractual or other relation existed be- by the contractors as trespassers, nor can such tween the immediate agent of the wrong and intention be presumed. On the contrary, the the person sought to be charged. The latter contractors were to act "as required by law." Sophia BOOTH, Respt., cannot shelter himself under the plea that the immediate wrongdoer did the act in execution of a contract, or that he came within the definition of an independent contractor as to the performance of the work in the execution of which the tortious act was committed. If he advised or directed the act, his liability is established. The contract entered into between the defendants and the contractors did not, as we construe it, authorize the contractors to commit a trespass upon the premises of the plaintiffs. In construing the contract, it is important to consider the situation. The defendants were about to tear down the old building on their premises, and erect a new one accord ing to plans which required an excavation of their lot to the depth of twenty-two feet. They had a lawful right to make the excavation. It would have been a complete answer to a claim by the defendants for a breach of the contract by the contractors that the latter were unable to obtain the permission of the plaintiffs to enter the premises to do the work required, and that it could not have been done without such entry. If there was any evidence that the defendants advised or directed the trespass, other than that furnished by the contract, it should have been submitted to the jury. There was none to justify a ruling as matter of law that, in the absence of a license to enter, the defendants were liable. We think the trial judge erred, and that the judgment below should be reversed, and a new trial ordered, with costs to abide the event. Judgment reversed. All concur. 0. ROME, WATERTOWN & OGDENSBURG TERMINAL R. CO., Appt. (140 Ν. Υ. 267.) 1. Acts of a railroad or other private corporation in the execution of charter or statutory powers are not within the rule that legislative authority for acts causing consequential injury to private property is a bar to a claim for indemnity. 2. The use of explosives in blasting on one's own premises does not constitute a nuisance which will create a liability, with out regard to negligence, where the blasting is the only proper mode of accomplishing a necessary work. 3. Injury to another's house by a mere concussion, without throwing rock or other material on the premises, occasioned by blasting on one's own premises in order to adapt them to a lawful use, when that mode is the only proper one and the work is transacted with due care and diligence, creates no liability. (December 5, 1893.) ant's roadbed at the crossing should be depressed 15 feet or more below the surface of the street. The excavation required for this purpose involved also the necessity of continuing the cutting through the lot of the defendant so as to procure a uniform grade. The soil extended about 10 feet below the surface, and underlying that was rock, which it became necessary to remove to the depth of about 4 feet. It was loosened by blasting with gunpowder. It was claimed by the plaintiff, and evidence was given tending to show, that in consequence of the blasting the plaintiff's house was seriously injured; that the foundations were cracked, the beams and joists pulled apart, the plaster loosened, and that, generally, the house was wrenched, and rendered insecure. It is not claimed that any rock or materials were thrown by the blasts upon the plaintiff's lot. In what particular way the injury was produced was not shown. It may be inferred that it was caused by the jarring of the ground or the concussion of the atmosphere created by the explosions, or by both causes combined. It was, however, affirmatively proven, without contradiction, that there was no disturbance of the earth on the sides of the excavation, and that gas APPEAL by defendant from a judgment of and water pipes in the street, exposed by the General Term of the Supreme Court, Fifth Department, affirming a judgment of the Monroe County Circuit in favor of plaintiff in an action brought to recover damages for injuries to plaintiff's property by blasting for defendant's right of way. Reversed. Statement by Andrews, Ch. J.: This appeal is from a judgment of the general term of the fifth department affirming a judgment on verdict for the plaintiff. The principal facts upon which the question presented arises are as follows: The defendant is a railroad corporation organized under the general railroad law of this state. In 1887 it owned a lot in the city of Rochester extending from the west side of St. Paul street to the Genesee river, adjacent to a lot owned by the plaintiff on the south, purchased by her in 1885, on which was a dwelling occupied by her, fronting on St. Paul street, the north side of which was about six feet south of the north line of her lot. The defendant projected an extension of its road from a point east of St. Paul street to the Genesee river, and thence across the river by a bridge. It obtained the consent of the municipal authorities to cross St. Paul street by a tunnel or cutting, and proceeded to extend its road across the street to the river. Its line crossed St. Paui street from a point on the east side of the street opposite the lot of the defendant, striking the center of defendant's lot on the west side, and thence ran longitudinally through the lot to the bank of the river. It became necessary, in order to comply with the conditions imposed by the city authorities, that the defend the excavation, were not displaced or injured. It was substantially conceded that the defendant exercised due care in conducting the blasting, and that it was necessary in order to remove the rock. There was evidence tending to show that the persons engaged in the work were informed from time to time during its progress that injury was being done to the plaintiff's house. The trial judge instructed the jury that the defendant, in using powerful explosives in blasting rock, used them at its peril, and that if the plaintiff's house was injured thereby the defendant was liable for the damages occasioned, and "that it made no difference whether the work was done carefully or negligently." Exception was taken by the defendant to this instruction. The jury found that the damage to the house from the blasting was $1,750, and this sum was included in the verdict. The court overruled the contention of the defendant that in constructing its road it was acting under legislative authority, and was on that ground, in the absence of negligence, exempted from liability, even although, as between individuals, an action might be maintained. Other facts are stated in the opinion. Mr. P. M. French, for appellant: The owner of land has the natural right to the use of the same in the situation in which it was placed by nature, surrounded and protected by the soil of the adjacent lots, and the owners of such adjacent lots have no right to destroy his land by removing their natural supports or barriers. Where a person in the exercise of ordinary care and skill, in making NOTE.-The New York court of appeals in the present case not only reverses the decision below but overrules decisions of lower New York courts to which it does not refer but which are referred to in the note on injuries to land and buildings from blasting, with the case of Benner v. Atlantic Dredging Co. (N. Y.) 17 L. R. A. 220. As to duty of those engaged in blasting in respect to the safety of other persons, see Blackwell v. Moorman (N. C.) 17 L. R. A. 729, and note. As to liability for acts of independent contractors in blasting, see that part of note to Hawver v. Whalen (Ohio) 14 L. R. A. beginning on p. 830. an excavation for the improving of his own lot, digs so near the foundation of the house on the adjacent lot as to cause it to crack and settle he will not be liable for the injury if such injury would not have injured the adjacent lot in its natural state. Lasala v. Holbrook, 4 Paige, 170, 3 L. ed. 391, 25 Am. Dec. 524; Radcliff v. Brooklyn, 4 Ν. Υ. 196, 53 Am. Dec. 357; 2 Washb. Real Prop. 4th ed. pp. 360, 362, *76; Boone, Real Prop. § 144; Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623; Marvin v. Brewster Iron Min. Co. 55 N. Y. 538, 14 Am. Rep. 322; Wilde v. Minsterley, 2 Rolle, Abr. 565, title Trespass; Thurston v. Hancock, 12 Mass. 220, 7 Am. Dec. 57; Gilmore v. Driscoll, 122 Mass. 201, 23 Am. Rep. 312; McGuire v. Grant, 25 N. J. L. 356, 67 Am. Dec. 49; Hatch v. Vermont Cent. R. Co. 25 Vt. 64; Beard v. Murphy, 37 Vt. 99, 86 Am. Dec. 693; Richardson v. Vermont Cent. R. Co. 25 Vt. 465, 60 Am. Dec. 283; Charless v. Rankin, 22 Mo. 566, 66 Am. Dec. 642; O'Connor v. Pittsburgh, 18 Pa. 187; Quincy v. Jones, 76 Ill. 231, 20 Am. Rep. 243; Busby v. Holthaus, 46 Mo. 161; Northern Transp. Co. of Ohio v. Chicago, 99 U. S. 640, 25 L. ed. 337; Dixon v. Wilkinson, 2 McArth. 425; Tiedeman, Real Prop. ed. 1885, § 618. The building of the railroad being of a public nature, and the defendant having acted under lawful authority, it had a right to dig and blast on its own land so long as such digging and blasting were done in a careful and prudent manner. *Bellinger v. New York Cent. Railroad, 23 N. Y. 42; New York Cent. & H. R. R. Co. v. Kip, 46 N. Y. 551, 7 Am. Rep. 385; Atwater v. Canandaigua Trustees, 124 N. Y. 602; Conklin v. New York, O. & W. R. Co. 102 N. Y. 107; Moyer v. New York Cent. & H. R. R. Co. 88 Ν. Υ. 356; Pierce, Railroads, 143. One cannot confine the vibration of the earth or air within enclosed limits, and hence it must follow that if in any given case they are rightfully caused their extension to their ultimate and natural limits cannot be unlawful, and the consequential injury, if any, must be remediless. Benner v. Atlantic Dredging Co. 17 L. R. A. 220, 134 N. Y. 156. In the case at bar the work was of a public nature whether we consider the blasting done on the defendant's land for the purpose of construction of its road. Buffalo & N. Y. Cent. R. Co. v. Brainard, 9 Ν. Υ. 100; Bellinger v. New York Cent. Railroad, 23 N. Y. 48; его York Cent. & H. R. R. Co. v. Kip, and Moyer v. New York Cent. & H. R. R. Co. supra; Uline v. New York Cent. & H. R. R. Co. 101 N. Y. 107, 53 Am. Rep. 123, note, 54 Am. Rep. 661; Pierce, Railroads, 143. Or whether we consider the blasting done in the street for the purpose of restoring the highway so as not "unnecessarily to impair its usefulness." Conklin v. New York, O. & W. R. Co.supra. There is no evidence in the case upon which the jury could be warranted in finding a verdict on this account to exceed six cents. 3 Sedgw. Damages, 8th ed. § 947. Mr. David Hays, for respondent: The blasting was a nuisance and defendant is liable to the plaintiff for the damage which she suffered from it. Wood, Nuisance, § 142; Cooley, Torts, pp. 607, 608. Each person should so use his own as not to injure his neighbor's property. Carhart v. Auburn Gas Light Co. 22 Barb. 297: The blasting by the defendant constituted a nuisance, for it directly and necessarily damaged the plaintiff's property, and the defendant is therefore liable, though the blasting may have been carefully done. Hay v. Cohoes Co. 2 N. Y. 159, 51 Am. Dec. 279. The question is ordinarily one of reasonable use. Such use of property as necessarily destroys one's neighbor's property is prima facie unreasonable. Cogswell v. New York, N. H. & H. R. Co. 103 N. Y. 10, 57 Am. Rep. 701; St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642; Fish v. Dodge, 4 Denio, 311, 47 Am. Dec. 254; Campbell v. Seaman, 63 N. Y. 568, 20 Am. Rep. 567; Radcliff v. Brooklyn, 4 N. Y. 195, 53 Am. Dec. 357; Bellinger v. New York Cent. Railroad, 23 N. Y. 42; Brennan v. Schreiner, 28 Abb. N. C. 481; McAndrews v. Collerd, 42 N. J. L. 189, 36 Am. Rep. 508. There is an obvious distinction between the liability of a private corporation to public prosecution for a legalized nuisance and its liability to a private action for damages arising from such nuisance. In the one case, the legislative authority is a protection, and in the other it is not. Wood, Nuisance, § 750; Tiffin v. McCormack, 34 Obio St. 638, 32 Am. Rep. 408; Bohan v. Port Jervis Gas Light Co. 9 L. R. A. 711, 122 N. Y. 18; Heeg v. Licht, 80 N. Y. 579, 36 Am. Rep. 654; Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623. Where the damage is the necessary consequence of just what the defendant is doing, or is incident to the business itself, or the manner in which it is conducted, the law of negligence has no application, and the law of nuisance applies. Hay v. Cohoes Co. 2 N. Y. 159, 51 Am. Dec. 279; McKeon v. See, 51 N. Y. 300, 10 Am. Rep. 659. A municipal corporation cannot license the erection or commission of a nuisance, by virtue of any implied or general powers. Dill. Mun. Corp. § 521; Ordway v. Canisteo, 66 Hun, 569; Cooley, Const. Lim. *194. We are not to infer that the legislature intended to alter the common-law principles further than is clearly expressed or than the case absolutely required. Sinnickson v. Johnson, 17 N. J. L. 144, 34 Am. Dec. 184; Arthur v. Bokenham, 11 Mod. 149; Dwarris, Stat. 695; Crittenden v. Wilson, 5 Cow. 165, 15 Am. Dec. 462. The latter drift of the law is in the direction of greater security to life and property. Story v. New York Elev. R. Co. 90 N. Y. 122, 43 Am. Rep. 146. Andrews, Ch. J., delivered the opinion of the court: We entertain no doubt of the correctness of the ruling at the circuit that the defendant may, in the public interest and for public purposes, authorize and legalize acts causing consequential injury to private property, not amounting to a taking, without providing compensation, and that the legislative authority may be pleaded in bar of any claim for indemnity, although if the act had been done with such authority an action would lie, has no application to acts of a railroad or other private corporation in the execution of chartered or statutory powers. The rule ad verted to, although operating in some cases with great severity, which compels an individual to bear a special loss for the benefit of the community at large, in place of distributing the burden, is an application of the maxim, "salus populi est suprema lex," and rests upon the transcendent power of the legisla stands in no better position in defending the | witnesses on the part of the defendant gave eviaction than if the controversy was between dence tending to show that the house was imindividuals. The rule that the legislature perfectly constructed, and that the foundation walls were giving way before the excavation was commenced. But, the verdict having been affirmed by the general term, there can be no controversy here that the blasting caused damage to the house to the amount of the verdict. But mere proof that the house was damaged by the blasting would not alone sustain the action. It must further appear that the defendant, in using explosives, violated a duty owing by him to the plaintiff in respect of her property, or failed to exercise due care. Wrong and damage must concur, to create a cause of action. If the injury was occasioned by the omission to use due care, this alone would sustain the action, even if the right of the defendant to use explosives in removing the rock was conceded. If one, by carlessness in making an excavation on his own land, causés injury to an adjoining ture, within constitutional limitations, to en- | building, even where the owner of the house act whether it may deem essential to the public welfare. But while there are decisions which give countenance to the view that an authority conferred upon a railroad corporation to construct a railroad carries with it immunity from liability in executing the work for consequential damage to private property, to the same extent as pertains to the sovereign in executing public works, (Bellinger v. New York Cent. R. 23 N. Y. 42) it is now the settled doctrine in this state that the powers granted to such corporations are to be construed as privileges conferred, but upon the understanding that they shall be exercised in strict conformity to private rights, and under the same responsibility as though the acts done in execution of such powers were done by an individual, (Cogswell v. New York N. H. & H. R. Co. 103 N. Y. 10, 57 Am. Rep. 701.) This doctrine accords with reason, and with the presumed intention of the legislature. The franchises of a railroad corporation are conferred in consideration of supposed public benefits which will result from the construction of its road. The projectors of such an enterprise are moved by considerations of personal advantage. To acquire corporate character and privileges, they are willing to subject themselves to certain public duties. But it is quite unreasonable that in executing its corporate powers the corporation should be exempted from liability for injuries to private property, as though it was acting as a strictly public agent. There may be limited exceptions, as in cases of highway crossings, where an adjustment of the grade becomes necessary, working a consequential injury to adjacent landowners, which is remediless; and the legislative authority will also bar any remedy for certain discomforts consequent upon the necessary operation of the road, such as noise and smoke of passing trains. We therefore agree with the courts below that the right of the plaintiff to recover in this case, and the liability of the defendant, depend upon the same rule as would govern the parties if both were natural persons, and the injury to the plaintiff's dwelling had resulted from blasting by an adjacent owner on his land in the course of adapting it to individual uses. The plaintiff, upon the findings of the jury, sustained a serious injury. It is true that has no easement of support, he will be liable. Leader v. Moxon, 3 Wils. 460; Lawrence v. Great Northern R. Co. 16 Q. B. 643-653; Leake, Real Prop. 248. The law exacts from a person who undertakes to do even a lawful act on his own premises, which may produce injury to his neighbor, the exercise of a degree of care measured by the danger, to prevent or mitigate the injury. The defendant could not conduct the operation of blasting on its own premises, from which injury might be apprehended to the property of his neighbor, without the most cautious regard for his neighbor's rights. This would be reasonable care only under the circumstances. If it was practicable, in a business sense, for the defendant to have removed the rock without blasting, although at a somewhat increased cost, the defendant would, we think, in view of the situation, and especially after having been informed of the injury that was being done, have been bound to resort to some other method. There is evidence that rock from some parts of the excavation was loosend by the use of iron bars, and if this was practicable as to all of it, the jury might well have found that this means should have been adopted. So, also, if less powerful blasts might have been used, which, if used would not have occasioned injury, or would have lessened it, the omission to use them might well be considered as negligence. The mode of exercising a legal right, where there is a choice of means, may of itself give a cause of action. The plaintiff, however, on this record, is precluded from claiming that the judgment may be sustained because of negligence in the mode of blasting. It must be assumed from concessions made on the trial, and from the rule of law laid down by the court, that blasting was the only mode of removing the rock practically available, that it was conducted with due care, and that it was necessary to enable the defendant to conform the roadbed to the established grade. This is a case, therefore, of unavoidable injury to the plaintiff's house, occasioned by the act of the defendant in blasting on his own premises in order to adapt them to a lawful use; the mode adopted being the only practicable one, and the work having been prosecuted with due care and without negligence. The question is whether the act of the defendant, connected with the defen resulting injury, was a legal wrong, for which the plaintiff has a right of action. The general rule that no one has absolute freedom in the use of his property, but is restrained by the coexistence of equal rights in his neighbor to the use of his property so that each, in exercising his right, must do no act which causes injury to his neighbor, is so well understood, is so universally recognized, and stands so impregnably in the necessities of the social state, that its vindication by argument would be superfluous. The maxim which embodies it is sometimes loosely interpreted as forbidding all use by one of his own property, which annoys or disturbs his neighbor in the enjoyment of his property. The real meaning of the rule is, that one may not use his own property to the injury of any legal right of another. The cases are numerous where the lawful use of one's property causes injury to adjacent property, for which there is no remedy, because no right of the adjacent owner is invaded, although he suffers injury. The cases of excavation furnish a striking illustration. The easement of natural support of the land of one by the land of the adjacent owner applies only to lands in their natural condition, and does not extend so as to give the owner of a building erected on the confines of his land the right to have it supported laterally by the land of his neighbor; and so it has become the settled doctrine of the law that if one, by excavating on his own land adjacent to the land of his neighbor, using due care, causes a building on the neighbor's land to topple over, there is no remedy, provided the weight of the building caused the land on which it stood to give way There is, in the case supposed, injury, but no wrong, because what was done by the adjacent owner was in the lawful and permitted use of his own property. Wyatt v. Harrison, 3 Barn. & Ad. 871; Partridge v. Scott, 3 Mees. & W. 220; Lasala v. Holbrook, 4 Paige, 170, 3 L. ed. 391, 25 Am. Dec. 524; Thurston v. Hancock, 12 Mass. 220, 7 Am. Dec. 57. The fundamental proposition upon which the plaintiff's counsel rests his argument in support of the recovery is that the use of the explosives in blasting constituted, under the circumstances, a private nuisance, and that, according to the general rule of law, one who creates or maintains a nuisance is liable for any special injury to person or property resulting therefrom. The right of the defendant to excavate on its land for its roadbed is not challenged, but the right to use the destructive agency of gunpowder in the work of excavating, liable to produce injury, and which did occasion it, is denied. The exception is not to the thing done, but to the mode of doing it. It is to be observed, however, that, under the concessions in the case and the rulings on the trial, it must be assumed that the excavation could not have been done except by the use of explosives. This mode of doing the work was therefore of the substance of the right, if the right existed at all. It has been frequently said that the right of an owner of land to use his property as he likes does not justify the maintaining of a nuisance or the commission *a trespass; and Blackstone after stating that where one, by smelting works on his own land, causes noxious vapors, which injure the corn or grain on his neighbor's land or damages his cattle, this would be a nuisance, proceeds to say "that if you do any other act in itself lawful, which yet being done in that place, necessarily tends to the damage of another's property, it is a nuisance, for it is incumbent on him to find some other place to do that act, where it will be less offensive." 2 Bl. Com. chap. 13, p. 218. There are many illustrations in the books, of the doctrine stated by the learned commentator, that the use of one's own land for the purpose of a lawful trade may become a nuisance to his neighbor. But whether a particular act done upon, or a particular use of, one's own premises, constitutes a violation of the obligations of vicinage, would seem to depend upon the question whether such act or use was a. reasonable exercise of the right of property, having regard to time, place, and circumstances. It is not everything in the nature of a nuisancewhich is prohibited. There are many acts which the owner of land may lawfully do, although it brings annoyance, discomfort, or injury to his neighbor, which are damnum absque injuria. The case of the building caused to fall by an excavation in an adjoining lot, already referred to, is an illustration. The right of an owner of a mine to excavate the mineral in his mine, although by so doing it causes the water to collect therein, and to be discharged into an adjacent mine on a lower level, thereby causing damage to the mine of such adjacent owner, is another illustration of a lawful use of property, followed by damage to the property of another, for which no action lies. Smith v. Kenrick, 7 C. B. 515; Baird v. Williamson, 15 C. B. N. S. 376; Wilson v. Waddell, L. R. 2 App. Cas. 95. In referring to these cases in Hurdman v. North-Eastern R. Co. L. R. 3 C. P. Div. 168, the court said: "The owner of lands holds his right to the enjoyment thereof subject to such annoyance as is the consequence of what is called the 'natural use by his neighbor of his land,' and that, where an interference with his enjoyment by something in the nature of a nuisance is the cause of complaint, no action can be sustained,. if this is the result of a natural use by a neighbor of his land." Whether a particular act or thing constitutes a nuisance may depend on the circumstances and surroundings. The use of premises for mechanical or other purposes, causing great noise, disturbing the peace and quiet of those living in the vicinity, and rendering life uncomfortable, or filling the air with noxious vapors, or causing vibration of the neighboring dwellings, constitute nuisances, and such use is not justified by the right of property. Fish v. Dodge, 4 Denio, 311, 47 Am. Dec. 254; McKeon v. See, 51 N. Y. 300, 10 Am. Rep. 659; Cogswell v. New York, N. H. & H. R. Co. supra. These and like cases are those where the property of the owner is appropriated to a permanent use, which is a constant and serious interference with the enjoyment by other property owners of their property. But there is a manifest distinction between acts and uses which are permanent and continuous, and temporary acts, which are resorted to in the course |