Art. 1. A Legal Right Must be Violated and Damage Ensue.

age, in the sense of the law, may arise out of injuries to the person or to the property of the party; as any wrongful invasion of either is a violation of his legal rights, which it is the object of the law to protect. Thus, for injuries to his health, liberty, and reputation, or to his rights of property, personal or real, the law has furnished the appropriate remedies. The former are violations of the absolute rights of the person, from which damage results as a legal consequence. As to the latter, the party aggrieved must not only establish that the alleged tort or trespass has been committed, but must aver and prove his right or interest in the property or thing affected, before he can be deemed to have sustained damages for which an action will lie."

It is of the very essence of the contract for fraud or deceit that it should be accompanied by damage, and neither damnum at sque injuria nor injuria absque damnum by themselves constitute a good cause of action. Deobold v. Oppermann, 111 N. Y. 531 (542).

In Holland House v. Baird, 169 N. Y. 136 (140), opinion Gray, J., it is said that wrong and damage must concur to create a cause of action, citing language of Andrews, Ch. J., in Booth v. R., W. & O. R. R. Co., 140 N. Y. 267.

To sustain an action for damages the violation of a legal right must be shown. The mere fact that the complainant has suffered damage is not enough. There must be a violation of the duty recognized by law on the part of the person occasioning the damage. There must be injury as well as damage. Pasley v. Freeman, 3 Term R. 51; Hale on Damages, 8; Jaggard on Torts, 87; Mechem's Cases on Damages, 3; Webb v. Portland Mfg. Co., 3 Sumn. 189; Day v. Brownrigg, 10 Ch. Div. 294.

Jessel, M. R., in Day v. Brownrigg, 10 Ch. Div. 294, says (at p. 304): "You must have in our law injury as well as damage;" and it is said in Rex v. Commissioners, etc., 8 B. & C. 355, that to constitute a tort, two things must concur, actual or legal damage to the plaintiff, and a wrongful act committed by the defendant.

At the foundation of every fraud must lie some violation of a legal duty, and therefore some unlawful act or omission. Cooley on Torts, 60, citing Rich v. N. Y. C. & H. R. R. R. Co., 87 N. Y. 382 (394).

In McGuire v. Bloomingdale, 8 Misc. Rep. 478 (480), 29 N. Y. Supp. 580, the court cites the language of Lord Westbury in Tip

Art. 1. A Legal Right Must be Violated and Damage Ensue.

ping v. St. Helen's Smelting Co., 116 Eng. C. L. 608, “If a man lives in a town, of necessity he must submit himself to the consequences of the operation of trade which may be carried on in his immediate neighborhood, which are actually necessary to trade and commerce, also for the enjoyment of property and for the benefit of the inhabitants of the town. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, and is carried on in a reasonable and fair way, he has no ground for complaint because to himself there may arise much discomfort from the trade carried on in that shop."

In Mahan v. Brown, 13 Wend. 262 (265), Savage, Ch. J., says: "The defendant has not so used his own property as to injure another. No one, legally speaking, is injured or damnified unless some right is infringed. The refusal or discontinuance of a favor gives no cause of action. The plaintiff in this case has only been refused the use of that which did not belong to her; and whether the motives of the defendant were good or bad, she has no legal cause of complaint."

Loss or damage to one person, arising from the use made by another of his own property, is damnum absque injuria, unless the former has previously acquired some legal right to restrict the use which the latter shall make of such property. The Auburn & Cato Plank Road Co. v. Douglass, 9 N. Y. 444.

There is no injury in a legal sense which could give a right of action unless it is occasioned by violation of some duty owing to the injured. Murphy v. City of Brooklyn, 118 N. Y. 575.

Another illustration of the rule damnum absque injuria is injury resulting from a change of grade of a public street under lawful authority. It is held not to be taking private property for public use and the owner may not recover for the injury sustained by him. Talbot v. N. Y. & Harlem R. R. Co., 151 N. Y. 155 (162).

The law is well settled in this State that where the property of an abutting owner is damaged, or even his easements interfered with in consequence of the work of an improvement in a public street conducted under a lawful authority, he is without remedy or redress, even though no provision for compensation is made in the statute. Whatever detriment the improvement may be to the abutter in such cases is held to be damnum absque injuria. Fries v. N. Y. & Harlem R. R. Co., 169 N. Y. 270 (276).

Art. 1. A Legal Right Must be Violated and Damage Ensue.

A possible damage to another, in the cautious and prudent exercise of a lawful right, is not to be regarded, and if a loss is the consequence it is "damnum absque injuria." Panton v. Holland, 17 Johns. 92 (100).

So long as the owner of property violates no duty which he owes to others or to the State, he cannot be called in question for the manner in which he uses or manages it; and if, in the lawful exercise of his right to so use it, another is injured, he is not liable. Victory v. Baker, 67 N. Y. 366.

A party is not liable for the consequences of an act done upon his own land, lawful in itself, and which does not infringe upon any lawful rights of another, simply because he was influenced in the doing of it by wrong and malicious motive; the courts will not inquire into the motive actuating a person in the enforcement of a legal right. Phelps v. Nowlen, 72 N. Y. 39.

The owner of land may dig an excavation in his own premises, not substantially adjoining a public highway, and no action lies. against him by one who has strayed off the highway and fallen into the excavation. Hardcastle v. S. Y. R. R. Co., 4 Hurlst. & Norm. 67; Hounsel v. Smith, 29 L. J. (C. P.) 203; Ilott v. Wilkes, 3 Barn. & Ald. 304; Nicholson v. Erie Ry. Co., 41 N. Y. 525.

But a different rule prevails when the pit dug is so near the highway that a person in using the same with ordinary caution may fall in. See Beck v. Carter, 68 N. Y. 283, where the authorities are reviewed.

The reason of the rule in the latter case is that a person lawfully using the highway in a reasonable manner is liable to fall in the pit, and where such is the case, a duty is imposed upon the owner to protect the excavation. In other words the right of the passer-by is interfered with. McAlpin v. Powell, 70 N. Y. 126 (133).

The proposition that one cannot be held liable for the exercise of a legal right in a proper manner and that one is liable for the invasion of the right of another is shown by the rule as to liability for blasting. When the injury is not direct, but consequential, such as is caused by concussion by a blast, which, by shaking the earth, injures property, there is no liability in the absence of negligence. Benner v. Atlantic Dredging Co., 134 N. Y. 156; Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267.

But where a blast was exploded causing a piece of wood to fall upon a person lawfully traveling in a highway, the person explod

Art. 2. The Law Must Give a Remedy.

ing the blast was held liable, although no negligence was shown, upon the ground that he was a trespasser. Sullivan v. Dunham, 161 N. Y. 290.

In both cases plaintiff was injured through the act of the defendant. In the one he had the right of recovery; in the other no legal right was invaded and plaintiff could not recover.

In the one case the owner acted within his legal rights by setting off a blast with due care on his own land and it was damnum absque injuria, the adjoining owners though suffering damage, suffered no legal injury and had no right of recovery, in the other case, the trespass on his land gave him a right of action.

ARTICLE II.

THE LAW MUST GIVE A REMEDY.

Pollock (p. 22) says that it is a wrong to do willful harm to one's neighbor without lawful justification or excuse, and that since there is a positive duty to avoid harm, there exists a negative duty of not doing willful harm; but that only that harm which falls within one of the specified categories of wrong-doing entitles the person aggrieved to a legal remedy.

Cooley (p. 66) says of the rule that it is the conjunction of wrong and damage that creates a tort; that although damage is a necessary element in an actionable wrong, it is sometimes damage merely implied or presumed, not damage shown, citing, at page 69, the celebrated saying of Lord Holt from Ashby v. White, 2 Ld. Raym. 938; s. c., 1 Smith Lead. Cas. 425: "The damage is not merely pecuniary, for if a man gets a cuff on the ear from another, though it cost him nothing, no, not so much as a little diachylon, yet he shall have his action, for it is a personal damage."

And of Buller, J., in Hobson v. Todd, 4 Term R. 71 (73). "Here,” says this judge, " is a wrongdoer, and the plaintiff is entitled to an action without proving any specific damages."

This means that in a certain class of cases, in order to meet the requirement that damage must follow the invasion of a legal right, the law presumes damage. Bigelow (§ 58), places this presumption upon the ground that rights of liberty, property, and reputation must be protected. It will be noted that in actions for false imprisonment, slander, libel, and trespass, involving the liberty of the person, the protection of reputation, and the conversion of property, the law does presume damage upon

Art. 3. The Wrongful Act Must be the Cause of the Injury.

proof of the violation of the right, and it is only in such cases as the law does not make such an assumption, that it is necessary to prove actual damage in order to maintain an action.

Hale (p. 54 et seq.) makes the distinction between cases in which damage is presumed and damage must be proven; that is, between those cases where the law authorizes a recovery for a wrong without proof of damage being given, upon the ground that the law presumes damage for forbidden conduct, while for authorized conduct no such presumption is had and damages must be proven. His view is that the rights which correspond to "absolute rights," as classified by some writers, are such as must be preserved inviolate, and that in this class of cases it is sufficient to simply prove a wrongful act; proof of damage being relevant with respect to compensation, but not with respect to the existence of cause of action, he adds: "In all other cases the law indulges in no presumption, but leaves the party complaining of the wrong to prove it by showing the presence of both these essential elements, the conduct itself and the resulting damage." He says further (at p. 60), that with regard to conduct neither expressly authorized nor expressly forbidden, there is a third class in which liability must be referred to the right of immunity from harm; and that in this case damage is never presumed, but must be proven, where the violation of a right is not shown.

His conclusion is that the law has pursued no consistent theory of liability. Citing 7 American Law Review, 652; Holmes Ccmmon Law, 79; Jaggard on Torts, 48; Wabash, etc., R. R. Co. v. Locke, 112 Ind. 404.

ARTICLE III.

THE WRONGFUL ACT MUST BE THE CAUSE OF THE INJURY.

It is enough in all cases that the wrongdoer knows, or is bound to know from the facts of which he is aware, that harm will follow, or is likely to follow, his improper act or omission in the understood state of things. * * * This way of putting the case, which is now the usual way, puts aside the persistent doctrine or dogma that a man intends the natural and probable consequences of his conduct. Bigelow, 47.

There will be no tort where the loss or damage is such as would not usually be found to follow from the unauthorized act or omis sion, unless it can be shown that the defendant knew, or had