(91 Hun, 211.)

#### NEWELL v. WOOLFOLK et al.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

1. Negligence—Blasting.

Blasting by “breasts” or rows of holes from 14 to 20 feet deep, charged with dynamite, and simultaneously exploded, making blasts so powerful that the surrounding earth for a considerable distance was shaken, and logs placed on the rocks to deaden the blast were thrown 200 feet, and over the tops of houses, shows a want of due care and regard for the interests of others on the part of the operators, for which they are liable, where it appears that the work could have been accomplished by smaller blasts, though not so expeditiously.

*3282. Appeal—Objections not Raised Below.

In an action for damages to real property, the objection that a finding that plaintiff is the owner of the property in question is not supported by the evidence cannot be raised for the first time on appeal.

Appeal from judgment on report of referee.

Action by Sue West Newell against Edward Q-. Woolfolk and another to recover damages to plaintiff’s property caused by the blasting of rock. There wras a judgment in favor of plaintiff, and defendants appeal.

Affirmed.

Argued before BROWN, P. J., ánd DYKMAN and PRATT, JJ.

Thomas D. Husted, for appellants.

Milo J. White, for respondent.

BROWN, P. J.

This action was brought to recover for injuries to the plaintiff’s property caused by the blasting of rocks by the defendants. The defendants were engaged from September, 1892, until January, 1894, in excavating in a rock cut near Mt. Vernon, upon the property of the New York, New Haven & Hartford Railroad Company. The plaintiff’s house was situated about 200 feet from where the blasting was carried on. The referee found upon sufficient evidence, and after a personal examination of the premises, made with the consent of the parties, that the walls and ceilings of the plaintiff’s house were cracked and broken and injured as the result of concussions and vibrations from such blasting. The rule of law applicable to a case of this character was stated by the court of appeals in Booth v. Railroad Co., 140 N. Y. 267, 35 N. E. 592. Mere proof of injuries sustained from the blasting would not sustain the action. It must appear that defendants failed to exercise due and proper care. The maxim, “Sic utere tuo ut alienum non laedas,” does not prevent an owner of property from making proper use thereof, although such use may inflict an injury upon his neighbor. The real meaning of the rule is as stated in the case cited,—that one may not use his property to the injury of any legal right of another. The defendants’ liability, therefore, depends upon the degree of care exercised; and this was to be determined by the danger to the adjoining property that was reasonably to be anticipated from the character of the work carried on.

It appeared that, in conducting the work of blasting, “breasts” or rows of holes from 14 to 20 feet deep were charged with dynamite, and simultaneously exploded, making blasts so powerful that the surrounding earth for a considerable distance was shaken, and logs placed upon the rocks, to deaden the blast, were thrown a distance of over 200 feet, and over the tops of houses. It was not disputed but that the rock could have been removed with much smaller blasts but it would not have been removed so expeditiously, and there would, in using smaller blasts, have been much less profit to the defendants. The method adopted by the defendants was the usual one for excavating rock, and the one most profitable to themselves. It is very evident that the defendants, in conducting this work, had regard only to their own interests. Reasonable care, *329however, required from them a due regard for the interests of the ■adjoining property owners.

In the case cited it was said:

> “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.”

The judgment has ample support in the testimony, and must be affirmed.

An objection is made by the appellants that the finding that the plaintiff is the owner of the property is not sustained by the evidence. This point does not appear to have been raised specifically upon the trial. There was a motion to dismiss the complaint at the close of the case, upon the ground that no cause of action had been proven, but it was not suggested that there was a failure to prove ownership of the property. We think the defendants must be deemed to have waived the objection. If attention had been called to it, it would probably have been obviated by the production of ■the deed.

The judgment must be affirmed, with costs. All concur.