he has been more or less deprived, there will be an irreparable injury, and a corresponding failure of justice. This compensation the law provides for; and it is the principal object of legal actions to ascertain what it should be, fix the amount, and enforce its payment. In some actions the paramount purpose is to compel the defendant to yield up possession of specific property which the plaintiff claims to own, and incidentally to obtain compensation for its detention, as in ejectment and replevin. So in actions on contracts for the direct payment of money, the effect of recovery is apparently to compel the defendant to do the very thing he agreed to do; [2] compensation for the delay in the form of interest is a subordinate matter.

sum

§ 2. The right to damages; how amount ascertained. In contemplation of law, every infraction of a legal right causes injury; this is practically and legally an incontrovertible proposition. If the infraction is established, the conclusion of damage inevitably follows. This deduction is made though it actually appears and is recognized in the case that there was in fact no injury, but a benefit conferred. This legal conclusion of damage is generally indeterminate as to amount; it is that some damage resulted; if no proof is made of the actual damage, judgment can be given only for a minimum nominal damages. In cases of contract it may occur that for any breach a large and determinate sum will become due, for which judgment without proof may be rendered. But generally, within certain limits, the actual injury is to be established by proof as matter of fact. In many cases of tort, however, the injury complained of is of such a nature that compensation cannot be awarded by any precise pecuniary standard, and there is no legal measure of damages, because the injury does not consist of pecuniary elements, or elements of which the value can be measured or expressed in money. The compensation which shall be allowed for an injury of this character is by the common law referred to the sound discretion and dispassionate judgment of a jury. Where there is a legal measure of damages the jury must determine the amount as a fact according to that measure, otherwise the law

1 New York Rubber Co. v. Rothery, 132 N. Y. 293.

2 Murphy v. Fond du Lac, 23 Wis. 365. See SS 9, 10.

which measures the compensation would be of no avail; and whether they have done so or not in a given case may be proximately seen by a comparison of the verdict with the evidence. Courts of general jurisdiction have power over verdicts, and may set them aside when the jury have been influenced by passion or corruption, or have disregarded the legal measure of compensation. By the course of modern decisions, whether compensation for the actual injury in actions for torts is subject to legal measure or not, if the injury was done maliciously, fraudulently, oppressively or with wanton violence, such measure, if any, while not entirely ignored, ceases to be the limit of recovery. The jury are at liberty, in the exercise of their judgment, on finding such malice or [3] other aggravation, to give additional damages as a solatium to the party so wronged, and as a punishment to the wrongdoer. The sums so allowed by law and found by a jury for tortious injuries, or losses from breach of contract, are damages· the pecuniary redress which a successful plaintiff obtains by legal action. They are for the most part compensation for civil injury — exemplary damages being an exception; therefore, the law relating to the subject of damages is principally directed to defining and measuring compensation. The civil injury for which damages may be recovered must be one which is recognized as such by the law; it must result from the violation in some form of a legal right. No damages can be recovered for failure to fulfill a merely moral obligation, nor for any wrong or injury which consists in a neglect of social amenities.

§ 3. Damnum absque injuria; injuria sine damno. The right to damages constituting a legal cause of action requires the concurrence of two things: that the party claiming them has suffered an injury, and that there is some other person who is legally answerable for having caused it. If one suffers an injury for which no one is liable it gives no legal claim for damages: it is damnum absque injuria; so if one does a wrong from which no legal injury ensues, there is no legal cause of action: it is injuria sine damno.2 That no act char

1 Parke v. Frank, 75 Cal. 364, citing the text.

2 McAllister v. Clement, 75 Cal. 182;

Wittich v. First Nat. Bank, 20 Fla. 843.

Acts done with reasonable care

acterized by these negations is actionable is, in the abstract, a truism. When we say that a person who suffers an injury which does not arise from any other person's fault has no cause of action, a self-evident proposition is stated; and equally so when we say that no person has a cause of action against another for the latter's wrongful act unless he is injured by it. The former precludes any action for lawful acts lawfully done, though some actual hurt or loss results to some person therefrom. Thus, for example, adjoining land-owners have a mutual right of lateral support to the soil in its natural state, but not under the pressure of buildings. When one has so loaded down his soil near the line, the other still has the right to make any use he pleases of his premises, and may excavate to the line, if he does so with due care, upon proper notice to the other; and if by such excavation the stability of the buildings [4] of the adjoining proprietor is endangered, or they are in fact destroyed, it is an injury for which no action lies.' The exercise of one's right to dig in his own land may have the effect of diverting an underground stream of water which is beneficial to another, or of draining his well, but the act of digging which causes either result not being wrongful if done without malice, there is no redress for the injury. The owner of property may thus and otherwise, whilst in the reasonable exercise of established rights, casually cause an injury which the law regards as a misfortune merely, and for which the party from whose act it proceeds is liable neither at law nor in the forum of conscience. No legal liability is incurred by the natural and lawful use of his land by the owner thereof in the absence of malice or negligence. Thus one opening a coal mine in the ordinary and usual manner may, upon his

pursuant to valid statutes will not render those who perform them liable for damages resulting. Highway Com'rs v. Ely, 54 Mich. 173.

1 Wyatt v. Harrison, 3 B. & Ad 875; Thurston v. Hancock, 12 Mass. 220; Panton v. Holland, 17 Johns. 92; Lasala v. Holbrook, 4 Paige, 169; McGuire v. Grant, 25 N. J. L. 356; Hay v. Cohoes Co., 2 N. Y. 159; Winn v. Abeles, 35 Kan. 91.

2 Acton v. Blundell, 12 M. & W. 324; Chasemore v. Richards, 7 H. L. Cas. 349; 2 H. & N. 168; Mosier v. Caldwell, 7 Nev. 363; Chase v. Silverstone, 62 Me. 175; Greenleaf v. Francis, 18 Pick. 117; Trustees, etc. v. Youmans, 50 Barb. 316; Ellis v. Duncan, 11 How. Pr. 515; Lybe's Appeal, 106 Pa. St. 626.

3 Pennsylvania Coal Co. v. Sanderson, 113 Pa. St. 126.

own land, drain or pump the water which percolates into his mine into a stream which forms the natural drainage of the basin in which the mine is situate, although the quantity of the water may thereby be increased and its quality so affected as to render it totally unfit for domestic purposes by the lower riparian owners. In cases of this nature a loss or damage is indeed sustained, but it results from an act which is neither unjust nor illegal done by another free and responsible being.2 The prosecution in good faith of a groundless action may give the defendant great annoyance, and cause him loss of time and money; but the plaintiff in such case is exercising a legal right, and the defendant, according to the weight of authority, if there has been no interference with his person or property, is entitled to no compensation for the injury he suffers beyond the costs which may be taxed in his favor. Every man is entitled to come into a court of justice and claim what he deems to be his right; if he fails he shall be amerced (according to the old principle) for his false claim; and the defendant is entitled to his costs, and with these he must be content. But if the suit be malicious, as well as false or groundless, the party bringing it is answerable in an action at law by the party injured. The making bona fide of defamatory statements, though they are harsh, untrue and injurious, in the assertion of rights, in the performance of a duty, or in fair criticism upon a matter of public interest, is also damnum absque injuria. Private houses may be pulled down in [5] the interest of the public to prevent the spread of fire, and bulwarks may be raised on private property as a defense against a public enemy. So owners of land exposed to the

1 Id.

2 Broom's Max. 151.

3 Woodmansie v. Logan, 2 N. J. L. 67; Canter v. Am. & O. Ins. Co., 3 Pet. 307; Muldoon v. Rickey, 103 Pa. St. 110; Eberly v. Rupp, 90 id. 259. See vol. 3, ch. 35.

+ Id.; Henry v. Dufilho, 14 La. 48; Davies v. Jenkins, 11 M. & W. 745.

5 Id. See vol. 3, ch. 25.

6 Todd v. Hawkins, 8 C. & P. 88; Huntley v. Ward, 6 C. B. (N. S.) 514; Mackay v. Ford, 5 H. & N. 792; Revis

v. Smith, 18 C. B. 126; Barnes v. McCrate, 32 Me. 442; Henderson v. Broomhead, 4 H. & N. 569; White v. Nicholls, 3 How. 266; Lawson v. Hicks, 38 Ala. 279; Calkins v. Sumner, 13 Wis. 193; Allen v. Crofoot, 2 Wend. 515; Lawler v. Earle, 5 Allen, 22.

7 American Print Works v. Lawrence, 23 N. J. L. 9; S. C., 21 id. 248; Surocco v. Geary, 3 Cal. 69; Russell v. Mayor, 2 Denio, 461; Field v. Des Moines, 39 Iowa, 575.

inroads of the sea, or commissioners having a statutory power to act for a number of such owners, have a right to erect barriers, though they are consequentially prejudicial to others.1 Owners of land adjoining streets are often subjected to temporary inconvenience while work is being done thereon for their improvement, or to change their grade, or by their temporary use for the deposit of building material or the delivery of merchandise; yet there is no right to compensation therefor; no legal injury is recognized. The construction of a new way or the discontinuance of an old one may very seriously affect the value of property; the same may result from the removal of a state capital or county seat; but persons suffering loss from such causes have no legal remedy. A new business may, by competition, greatly impair the productiveness of an old one, but there is no redress for the loss. These instances will serve as examples of damnum absque injuria.

[6] The futility of cases of wrong without injury is illustrated by cases in which damages are the gist of the action and none are shown." A statute making it a misdemeanor 1 King v. Pagham, 8 B. & C. 355.

2 Reading v. Kepplemann, 61 Pa. St. 233; Griggs v. Foote, 4 Allen, 195; Benjamin v. Wheeler, 8 Gray, 409; Green v. Reading, 9 Watts, 382; O'Connor v. Pittsburgh, 18 Pa. St. 187; Macey v. Indianapolis, 17 Ind. 267; Terre Haute v. Turner, 36 Ind. 522; Radcliff v. Mayor, etc., 4 N. Y. 195; Mills v. Brooklyn, 32 N. Y. 489; Rome v. Omberg, 28 Ga. 46; Hovey v. Mayo, 43 Me. 322; Denver v. Bayer, 7 Colo. 113.

3 Cooley's Const. Lim. 384. See Weeks' Dam. Absque Injuria, ch. 1; Stout v. Noblesville & E. Gravel R. Co.. 83 Ind. 466.

4 Masterson v. Short, 3 Abb. (N. S.) 154; Hanger v. Little Rock J. Ry., 52 Ark. 61.

See Macomber v. Nichols, 34 Mich. 212; Waffle v. Porter, 61 Barb. 130 Farmer v. Lewis, 1 Bush, 66; Pontiac v. Carter, 32 Mich. 164; Michigan C. R. Co. v. Anderson, 20

Mich. 244; Winters' Appeal, 61 Pa. St. 307; Tinicum Fishing Co. v. Carter, id. 21; Conger v. Weaver, 6 Cal. 548; Baker v. Boston, 12 Pick. 184; Winchester v. Osborn, 62 Barb. 337; Ellis v. Duncan, 11 How. Pr. 515; Gould v. Hudson R. R. Co., 6 N. Y. 522; Benedict v. Goit, 3 Barb. 459; Rood v. New York, etc. R. Co., 18 Barb. 80; Tyson v. Commissioners, 28 Md. 510; Tonawanda R. Co. v. Munger, 5 Denio, 255; Gardner v. Heartt, 2 Barb. 165; Radcliff v. Mayor, etc., 4 N. Y. 195; Botsford v. Wilson, 75 Ill. 132; Mitchell v. Harmony, 13 How. 135; Cleveland, etc. R. Co. v. Speer, 56 Pa. St. 325; Frankford & B. T. Co. v. Philadelphia & T. R. Co., 54 Pa. St. 345; Snyder v. Pennsylvania R. Co., 55 Pa. St. 340; Hollister v. Union Co., 9 Conn. 436; Runnels v. Bullen, 2 N. H. 532.

6 Ford v. Smith, 1 Wend. 48; Badeau v. Mead, 14 Barb. 328; Kimball v. Connolly, 3 Keyes, 57; 33 How. Pr.