admissible as bearing upon the condition at the time of the accident; and it is desirable, if possible, to have testimony that the condition had not changed; these points are definitely of importance for the engineer to appreciate.

Functions of Judge and Jury. When the evidence is in, it is usually a question for the jury to determine whether or not, from the facts presented, there was negligence. In general, in lawsuits when there is no inharmonious testimony, when the facts are not in dispute, the judge decides what law applies to these established facts. In a case of negligence, however, the jury decides whether the facts existing do show a lack of care; in other words, whether there was a lack of care is a matter of fact and not a question of law. Sometimes when, as it is said, it is clear that reasonable men could come to but one conclusion, the judge will settle the matter as a question of law, but for the engineer this feature of a trial is of minor importance.

Measure of Damages. What is the measure of damages? In the case of injury to property, it is in general the difference in value before and after the offense. In the case of personal injuries, loss of time, expense of illness, decrease in capacity for work, bodily disfigurement and pain, mental suffering, shock or fright; all of these may have an influence upon the award; and in the case of gross negligence, exemplary damages may be awarded from a punitive standpoint. In some cases the loss of services of the person injured, a wife, daughter, or servant, may be the measure of the damage.

Care and Foresight by Engineers. While securing evidence is an important function of the engineer in many cases of negligence, a more important duty is for the engineer to exercise sufficient care and foresight to properly design work under his control or advice, to adequately maintain it, and to see that the operation is in good hands and that proper methods are used, so that few if any accidents shall occur which are not due to the contributory negligence of any one who may suffer injury. The engineer should intend to exert more skill, care, and diligence than the law definitely demands of him; this as a matter of good business. As an example, many railroads, both as to signals and as to braking apparatus, have made improvements more frequently than the law could demand, fairly interpreted; no doubt, other illustrations will occur to the reader.

The subject of negligence is of great importance in considering the relations of master and servant, or employer and employee, and in the chapter on agency, master and servant, some additional attention will be given to negligence.

TRESPASS

Definition. A duty exists not (a) to enter another's lands without permission, nor (b) to interfere with his possession of personal property. A violation of this duty is called "trespass."

Trespass and License. The engineer and contractor have special interest in trespass upon lands, as circumstances may make it easy for them to offend in this way. It should be understood that it is not necessary always to secure specific permission to enter a man's premises; whoever has the right to possession of land holds it in general subject to easements or licenses of some sort, and there are several classes of license.

Every one in business impliedly invites the public to enter his place of business, and, similarly, every householder invites certain tradesmen and neighbors to enter his grounds and perhaps his house; there are often limitations imposed as to the extent of the invitation. In other cases, the owner or lessee or tenant expressly invites certain persons upon his land to perform certain specific acts; such license may, in general, be recalled at any time.

Legal Entry. The law in some cases permits an entry; in case of a conflagration, the public authorities enter, and with dynamite demolish the building in order to stay the course of the flames. Where a highway is impassable, the traveler may lawfully enter upon adjoining lands; this as a matter of Common Law; but curiously enough where there is only a right of way its limits must not be transgressed.

Surveyor's Trespass or License. A surveyor with his rodman enters certain premises to make inquiries and sometimes does this under license; if he afterwards remains on the land without permission, in order to make a survey, he is doubtless a trespasser. Surveyors frequently do enter lands without previous permission and there is seldom any objection. They lay themselves liable to a suit for trespass; but ordinarily they can take the risk that no exception will be taken to their action; the damages probably would be small, or nominal, but any misdemeanor committed may result in exemplary damages which may be of considerable amount.

Entry under Rights of Eminent Domain. The law in most States allows a city, a railroad, or a water works company to take lands for public uses from any owner by legal process under the "right of eminent domain," and, when this process has been pursued to the proper point, the entry on the land becomes lawful; but if the city or town neglects to use this legal process, it has no more right on the land than any other trespasser and may be made to pay damages independent of whatever may be awarded later in the eminent domain proceedings if these are afterwards instituted.

Injury not Essential. In order that a trespass be committed, it is not necessary that any injury be done; the offense lies in the unlawful entry; furthermore the trespass is against the party in possession of the land rather than against the owner. The old form of pleading in trespass recites that "with force and arms" the defendant "entered and with his feet in walking trod down and trampled upon the grass and herbage."

Trespass is against Possession. It appears that possession is considered so important that, where the possessor has only a shadow of title, the owner, not then in possession, is not allowed to forcibly enter and disturb peaceful possession. The law does not allow the owner to assume the law's function (of deciding the title) to the extent of breaking the peace; however, the owner, when in possession, may forcibly resist invasion. The engineer or contractor who desires to use lands, for storing material or otherwise, should secure permission from the party in possession, the lessee or tenant perhaps, and for some uses also from the owner; for instance the tenant has limited powers, and may cut crops, but not chop down trees without the owner's permission; a tenant certainly cannot grant to a contractor a right which he does not himself possess.

Examples. The cutting or tramping down of crops, the carrying away of gravel, stone, ore, or coal, the carting across land unoccupied or otherwise, the deposit of lumber or other material, or dumping surplus earth or rock on lands; any one of these actions constitutes a trespass. The diversion of water, or collecting surface water and discharging it in volume on land, also constitutes trespass; but not disturbing or absorbing waters altogether underground; nor casting water upon a lot as the result of grading a street; the owner may raise a bank or dike and turn it back if he cares to.

Public Rights in Highways. Land bounded by a public highway commonly carries title to the center line of the highway. In many cases, however, there are statutes providing otherwise; moreover a deed conveying land, for instance only to the westerly side line of a street, often does not convey to the center, although the element of intent is important; but deeds in fee simple to a city or town, of lands for highways probably divest the owner of all title in the street, although there are some decisions to the contrary.

The public then have rights only for the proper purposes of a highway, and where a private party uses it to store material of any sort, or plows it and removes soil, trespass results; the same is true when trees have been removed from the sidewalk or where branches of trees have been cut to allow electric lighting wires to be strung from pole to pole.

Examples. In the case of a highway under construction and duly authorized, the court decided in one case that there was no trespass although the oxen used passed on the plaintiff's land, when this was neces

sary to the conduct of the work and no undue injury was done; and further stated that the law allows the highway surveyor to use necessary means to do such work.

But where a contractor built a duly authorized sewer in a street, he had no right to go upon abutting premises and put earth upon them; he committed a tort, a trespass, and was liable for damages. In blasting, if pieces of rock are thrown upon another's land, or through a window or roof, there is a clear case of trespass.

Engineer's Duty. In general, the railroad, the city, represented by the engineer or the contractor under his control, either of these is more likely to commit trespass than to be the sufferer from it; the nature of the duty required of the engineer is thus mainly defined.

VIOLATION OF RIGHT OF SUPPORT

Definition. A duty exists not to remove the lateral support from another's land in its natural state when not loaded with walls, buildings, or materials, nor to withdraw subjacent support. A failure to observe this duty, resulting in another's injury, constitutes a "violation of right of support."

Support of Soil Only. At Common Law, the landowner has the right to have his soil preserved intact as against its own weight by the ordinary elements, and if the adjoining owner excavates so near the line as to cause the same to crumble, he is liable for ensuing damages without regard to his care or negligence in so doing. The landowner has the right to lateral support of the soil only, but no natural easement for the support of his buildings, and upon notice of excavation in adjacent land, it is his duty to protect his building by underpinning perhaps; otherwise the excavator may enter and protect at the owner's expense, or proceed with his excavation, using ordinary care under the circumstances.

Buildings. Not only is there no liability when the weight of buildings helped to cause the soil to fall, but where the soil fell of its own weight only, and in no way due to the buildings thereon, and the buildings also fell in consequence of the dropping of the soil, the damage is measured by the injury to the soil and includes no part of the injury to the buildings. Such is the law in this country; in England a different rule prevails.

Negligence Immaterial. The offense occurs if the support of the soil is withdrawn, whether or not there has been any negligence; in proving a case, therefore, negligence need not be shown. Unlike trespass, however, actual damage must be shown or the case will be thrown out of court.

Easements Granted. It appears to be the case that, where a landowner sells land for a building, a highway, or a railroad, he grants also an ease

ment against himself for the support of any buildings on the land at the time it was sold, or for such support as may be necessary for the purpose for which the land was sold; a deed for a railroad, for instance, often specifies land for its right of way. Frequently land is sold for the specific object of building, and the purchaser then acquires a right to the support of his buildings from the seller which he does not have as to an independent neighbor.

Underpinning Buildings. It has been ruled also that, in underpinning a building, a man who uses a prop resting on his neighbor's land has a right of support against any stranger who removes it, although he may have no case against the neighbor if he removes it, and may even be a trespasser against the neighbor by placing the prop on his ground. A simple example of the principle stated occurs when a man builds two houses on his land with foundations abutting and sells the houses to different purchasers. Each purchaser has a right of support as to the neighbor. But when two houses have foundations which abut, and these houses were erected by independent owners, no such right of support attaches.

Avoid Negligence. It should not hastily be assumed that one may remove a contiguous foundation or even supporting soil from a neighbor's building. While not liable as a matter of right of support, he must nevertheless not exercise negligence toward his neighbor. He certainly should notify him, and thus give his neighbor opportunity to protect himself; on his failure to do so he may underpin his neighbor's building, using ordinary care only in so doing. It is not uncommon for an agreement to be made by which the contractor who excavates also undertakes to protect a neighboring building. In one case of this sort, although permission was given to enter the neighbor's land for this purpose, it was held that the contractor was not justified in digging away the soil underneath the foundation; this apparently was trespass.

Legal Advice. Where buildings are valuable, where the interests are large, it will be wise to consult a capable lawyer as to one's rights, unless some one concerned in the work has already acquired a knowledge of the law applicable, as interpreted by the laws of the State in which the work is done, and this should include a knowledge of the proper form of agreement in case an owner or his contractor undertakes the work of protecting his neighbor's building.

Ground Waters and Quicksand. In the construction of a sewer or other underground work, the withdrawal of ground waters does not constitute a tort even if some settlement of adjoining soil results; but if quicksand is encountered, and it flows into the trench causing subsidence of near-by soil, a suit for violation of right of support may properly be maintained without showing negligence. If negligence can be shown, it may