That the defendant had a right to excavate the earth, for the purpose of making cellar rooms under that portion of his estate where the accident happened, is not contested. There is no pretence that the defendant was actuated by malice, and the only question is, whether he has been guilty of such negligence as to expose him to the plaintiff’s demand for damages by reason of the injury she has sustained, on the application of the maxim, sic utere tuo ut alienum non Icedas.

The defendant had a right to dig to the line of his estate , and as between abutters such digging is justified by ancient and modern decisions, on the well received principle that the proprietor has the entire dominion over the whole of his own estate. 2 Rol. Ab. 565. Thurston v. Hancock, 12 Mass. 220. Panton v. Holland, 17 Johns. 92.

The defendant did a lawful act on his own premises, and we cannot hold him responsible for injurious consequences that may have arisen by reason of it, unless it was so done as to constitute actionible negligence.

*374it is laid down in Com. Dig. Action upon the case for a Nuisance, C. that “ the action does not lie if a man make a ditch in his waste, which lies near the highway, within thirty six feet of the highway, into which the horse of another falls; for the ditch in his own soil was no wrong to the other, but it was his fault that his horse escaped into the waste.” 1 Rol. Ab. 88.

The cases put by the plaintiff’s counsel are those where the acts are lawful, but are done so negligéntly that an injury immediately follows to the property or person of another ; as a fire kindled negligently ; shooting a gun carelessly ; neglecting to take care of a dog, knowing he will bite, (fee. Com. Dig. Action upon the case for Negligence, A. 5, 6. Clark v. Foot, 8 Johns. 421. Here the plaintiff went out of the highway and met with the accident. If she had kept within it, no injury, would have taken place ; and though it is agreed, for the purposes of this trial, that she was guilty of no negligence, yet that will not throw upon the defendant the consequences of her going off the street; for he does not appear to have been guilty of negligence. And where neither party is in fault and an accident takes place, it is damnum absque injuria.

Though the defendant may have, before this, permitted the public to travel over this piece of ground, they acquired no right thereby; and he could use it differently, and for his own purposes, as like property is enjoyed, when and in such manner as he pleased. The public could not of right walk over it, and his intention to appropriate it to his private use had been sufficiently manifested by the work he had caused to be done there, for some time previous to the accident; and thus the permissive use had been taken away. We know of no rule of the common law requiring him to fence the premises in the situation in which they were then; and we have seen no by-laws of New Bedford, imposing duties upon the abutters on the highways, in matters of a like nature with this.

It has been said in argument, with apparent confidence,

*375that the town of New Bedford must be liable if this defendant is not. But before we can say that such a consequence can follow from this decision, we must hear what the town has to advance. Audi alteram partem. And in deciding this case, we express no opinion in regard to the liability of the town, if a suit against it should hereafter be brought. This is one of those cases where the lines which distinguish between the respective rights of the parties are very faint; but on the whole we think the plaintiff has no cause of action.

Exceptions overruled.