282; Carhart v. Auburn Gas Light Co., 22 Barb. 297, 308. Or where he pollutes the air by noxious gases and fumes from a lime-kiln, or from the engines of an elevated railway: Hutchins v. Smith, 63 Barb. 255; Caro v. Metropolitan etc. R. R. Co., 14 Jones & S. 169-171. So where a land-owner or canal contractor, in blasting or making improvements, casts rocks or other materials on another's land: Gourdier v. Cormack, 2 E. D. Smith, 202; St. Peter v. Denison, 58 N. Y. 421; S. C., 17 Am. Rep. 258; Mairs v. Manhattan etc. Ass., 89 N. Y. 505. So where one stored gunpowder in a magazine upon his premises, constructed with the usual safeguards, and it exploded without apparent cause, to the injury of the plaintiff's adjacent house, an instruction that the plaintiff could not recover without proof that the powder was negligently kept upon the premises, was declared erroneous, and it was held that the fact that the explosion took place without apparent cause, notwithstanding the precautions taken, evinced its dangerous character, and that it should have been left to the jury to determine whether, from its proximity to other buildings and from the other circumstances, the magazine was in fact a nuisance: Heeg v. Licht, 80 N. Y. 579, 583; S. C., 8 Abb. N. C. 360. So where a railroad contractor stored explosive materials, to be used in blasting, within the limits of a town, in the vicinity of a tunnel which he was excavating, and an explosion occurred, to the injury of adjacent property, the contractor was held liable without proof of negligence or unskillfulness: McAndrews v. Collerd, 42 N. J. L. 189, 191. But where nitro-glycerine, while being held in store by a carrier for transportation, exploded, to the injury of adjacent property, it was held, distinguishing the principal case, that the carrier was not liable without proof of knowledge of the dangerous character of the article, or of actual neg. ligence: Parrott v. Barney, 1 Sawy. 238; S. C., 2 Abb. Pr., N. S., 211. So where a steam-boiler in use on one's land accidentally exploded, occasioning injury to adjacent property, it was held that no action would lie without proof of negligence: Losee v. Saratoga Paper Co., 42 How. Pr. 385, 392. In a subsequent decision concerning the same accident, Potter, J., thought also that proof of negligence was unnecessary, but the majority of the court disagreed with him on this point, though they agreed with him in granting a new trial on other grounds: Losee v. Buchanan, 61 Barb. 105. But in Losee v. Buchanan, 51 N. Y. 476, 479, the decision in 61 Barb, was reversed, and it was held that the owner of the boiler was not liable for the explosion except on proof of negligence, distinguishing the principal case as one in which the injury was the direct and necessary result of the defendant's act. In McCafferty v. Spuyten Duyvil etc. R. R. Co., 48 How. Pr. 44, 49, it was held that a railroad company was not liable for the negligence of a subcontractor in blasting rock whereby adjacent property was injured, and the principal case was distinguished as raising no question upon this point.

Where the adjacent house of the plaintiff was jarred by the running of an engine upon the defendant's premises, and the inmates annoyed and terrified by the noise so that the occupancy of the house became uncomfortable, the defendant was held liable, under the rule of the principal case: McKeon v. See, 4 Robt. (N. Y.) 467. So where one cut trees on the dividing line between himself and an adjacent owner: Relyea v. Beaver, 34 Barb. 552. So where a landowner, in excavating on his own land, destroyed the support of adjacent land: Farrand v. Marshall, 19 Id. 383; S. C., 21 Id. 414. The case is cited on the same point in People v. Caral Board, 2 Thomp. & C. 278. But where, in a grant of land, the right to the minerals therein was reserved to the grantor, which right he subsequently conveyed to another, it was held that the grantes thereof could lawfully sink shafts and run tunnels to reach the minerals, so

far as necessary for the reasonable use and enjoyment of his property therein, leaving sufficient support for the surface as it was at the time of the grant, or as then contemplated by the parties, and would not be liable to an action or to an injunction, though the owner of the soil might thereby be prevented from using the premises in a particular way: Marvin v. Brewster Iron Mining Co., 55 N. Y. 538. Folger, J., delivering the opinion, thus distinguishes the principal case: "Nor does this case fall, in its main aspects at least, within the rule recognized and applied in Hay v. Cohoes Co., 2 N. Y. 159. There the adjacent owner, though following a lawful purpose upon his own land, in excavating a canal thereon, cast rocks from it upon his neighbor's land. He immediately and physically invaded his neighbor's exclusive possession. He had the right to dig the canal. His neighbor had the right of undisturbed possession of his property. It was held, on grounds of public policy, better, if these rights conflicted, that he should give up the right of a particular use than that his neighbor should lose the beneficial use of his altogether. Here, however, the case, if not reversed, is nearly so. The sole use which the defendant can make of its property is to excavate and remove it. If it is doing only what is necessary to that end, shall it give up altogether the sole beneficial use of its property, that the plaintiff may use his undisturbedly in one way, the most profitable, doubtless, and the most desirable, but still one way of several?" Where, without any negligence on the part of the owner, logs in a boom broke loose by reason of a freshet and lodged on the plaintiff's land, and were suffered to remain there several months, occasioning damage to his meadow, it was held that the owners were not liable for damages by the mere lodgment, but were liable for damages for the delay in removal, and the principal case was cited to the point that one is liable for a direct injury to another's property: Sheldon v. Sherman, 42 Barb. 368, 370.

In Pickard v. Collins, 23 Barb. 458, where the defendant built a high fence on his own land, which had the effect of darkening the plaintiff's windows in his adjacent house, and although he did so for that purpose, it was held that he was not liable, it not appearing that the plaintiff had any prescriptive or other legal right to an unobstructed view, citing the principal case as not in conflict with that doctrine.

TREMAIN V. COHOES COMPANY.

[2 NEW YORK (2 COMSTOCK), 163.]

LAND-OWNER WHO, IN EXCAVATING HIS LAND for a contemplated improvement, has cast dirt, stones, and rubbish upon adjoining land, to the injury thereof, can not defend an action for compensatory damages by evidence that the work was done with care and skill; he is liable for the actual injury, irrespective of negligence.

APPEAL from a judgment for defendants in an action of trespass on the case. The action arose out of the same general facts as those of Hay against the same company (reported ante, 279), Tremain being a land-owner near Hay, and suffering in the same way as he from the company's blasting operations. The difference between the two cases as presented on their respective trials was merely this: that in Hay's action neither party offered any

proof as to negligence; but in Tremain's, the company offered to prove that their agents and servants had proceeded in the most careful manner in making the excavations complained of. The presiding judge excluded this evidence, and the plaintiff had a verdict and judgment. The supreme court, in an opinion by Hand, J. (not reported), held that the excluded evidence was admissible on the ground that, though not a bar to the action, it was relevant on the question of damages, for it was adapted to aid the jury in determining how much injury was done, since if the work were done with care the actual injury would be less than if done carelessly. From this decision the plaintiff appealed.

Edward F. Bullard, for appellant, the land-owner injured.

John K. Porter, of counsel, for respondents, the company causing the injury.

By Court, GARDINER, J. The evidence offered by the defendants to prove "that the work was done in the best and most careful manner," was deemed by the court below relevant on the question of damages. The action was case. The declaration lays no foundation for exemplary damages; it does not aver that the injury was willful, or even that it arose from the negligence. of the defendants. No claim to them was made upon the trial, and the jury were expressly instructed to limit their verdict to a compensation for the actual injury sustained by the plaintiff.

If the plaintiff's windows were darkened one half the day, the inconvenience to him would be the same whether the light was obstructed by accident or design, with an intent to injure him or from an anxious wish to preserve his property. The actual damage to the plaintiff would be the same whatever might be the motive for the act which caused it.

How the defendants performed their work was in this view of no consequence: what they did to the plaintiff's injury was the sole question. And upon that issue the evidence offered was calculated to mislead instead of enlighten the jury: Hoyt v. Gelston, 13 Johns. 152; Conrad v. Pacific Insurance Co., 6 Pet. 262, 282; Bell v. Cunningham, 3 Id. 69; Tracy v. Swartwout, 10 Id. 80, 86.

We therefore think the common pleas right in excluding it, and that the judgment of the supreme court must be reversed. Judgment reversed.

LIABILITY FOR INJURIES BY ACTS DONE ON ONE'S OWN LAND: See Hay . Cohoes Co., ante, 279, and note. This case is cited as a companion case to

that in Relyea v. Beaver, 34 Barb. 552; Losee v. Buchanan, 61 Id. 105, 106; O'Riley v. McChesney, 3 Lans. 282; Radcliff's Ex'rs v. Mayor etc. of Brooklyn, 4 N. Y. 199; Pixley v. Clark, 35 Id. 523; St. Peter v. Denison, 58 Id. 423; McCafferty v. Spuyten Duyvil etc. R. R. Co., 61 Id. 187; Heeg v. Licht, 80 Id. 583; S. C., 8 Abb. N. C. 360; McAndrews v. Collerd, 42 N. J. L 191, 192. For a more particular mention of these cases, see the note to Hay ▼. Cohoes Co., ante, 279.

SHORTER V. THE PEOPLE.

[2 NEW YORK (2 COMSTOCK), 193.]

HOMICIDE IS JUSTIFIABLE (both at common law and under 2 N. Y. R. S. 660, sec. 3), when committed in self-defense by one who, being attacked with. out his fault, believes, with good reason, that his assailant means to kill him or do him great bodily harm, even though he was mistaken in such belief.

USING DANGEROUS WEAPON TO RETURN BLOW WITH NAKED HAND, where there is no reason to apprehend a design to do great bodily harm, is unjustifiable.

PURSUING RETREATING ADVERSARY AND KILLING HIM is unjustifiable homicide, even though the deceased was the first assailant.

JUDGMENT WILL NOT BE REVERSED ON ERROR, FOR INCORRECT INSTRUC

TIONS, even in a capital case, if they can not have prejudiced the prisoner; as where, on a trial for murder, the explanations given to the jury as to the right of self-defense were narrower than the true rule, but the facts proved were such that no question of justifiable homicide could properly arise.

LAW OF BILLS OF EXCEPTION IN CRIMINAL CASES is the same as in civil.

ERROR to the supreme court to review a judgment sustaining a conviction for murder. The bill of exceptions stated the evidence below as having been to the effect that Shorter (the accused), who was a negro, and Brush (the deceased), meeting by chance, and without any previous difficulty, on a sidewalk in Buffalo, became engaged in a quarrel arising out of words uttered by Brush about negroes, at which Shorter took offense. Blows passed between the two men, and Brush, exclaiming, “He has a knife," retreated, pursued by Shorter, to the middle of the roadway, where in a few moments he fell, mortally stabbed by a knife in Shorter's hands. The witnesses disagreed as to which struck the first blow, but there is no dispute that Brush was endeavoring to retreat at the moment when the fatal wound was given. The prisoner's counsel, among other requests, asked the court to charge that, although the prisoner might have been mistaken, yet if he believed himself in imminent danger, and did not strike with the knife to gratify malice or revenge, he was justifiable; that the question was not whether there was

danger, but whether he believed that there was. The presiding judge refused this request, and instructed the jury, that in order to acquit they should be satisfied that there was in fact imminent danger; and the jury found the prisoner guilty. The supreme court sustained the conviction; two judges holding (in an opinion not reported), that the charge and refusal were substantially correct, because a mere belief that he was in peril would only reduce the grade of the prisoner's offense to manslaughter, and the third thinking the conviction good irrespective of the charge and refusal, because there were no facts proved to which they could apply; and the prisoner was sentenced to death.

Benjamin H. Austin, district attorney, for the defendants in error, the people.

Eli Cook, for the plaintiff in error, the accused.

By Court, BRONSON, J. When one who is without fault himself, is attacked by another in such a manner or under such circumstances as to furnish reasonable ground for apprehending a design to take away his life, or do him some great bodily harm, and there is reasonable ground for believing the danger imminent that such design will be accomplished, I think he may safely act upon appearances, and kill the assailant, if that be necessary to avoid the apprehended danger; and the killing will be justifiable, although it may afterwards turn out that the appearances were false, and there was in fact neither design to do him serious injury, nor danger that it would be done. He must decide at his peril upon the force of the circumstances in which he is placed, for that is a matter which will be subject to judicial review. But he will not act at the peril of making that guilt, if appearances prove false, which would be innocence had they proved true. I can not better illustrate my meaning than by taking the case put by Judge, afterwards Chief Justice, Parker, of Massachusetts, on the trial of Thomas O. Selfridge. "A. in the peaceable pursuit of his affairs sees B. walking rapidly towards him with an outstretched arm and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A., who has a club in his hand, strikes B. over the head, before, or at the instant the pistol is discharged; and of the wound B. dies. It turns out that the pistol was loaded with powder only, and that the real design of B. was only to terrify A." Upon this case the judge inquires, "Will any reasonable man say that A. is more criminal than he would have been if there had been a