#

and some are not, perhaps, entirely consistent with the maintenance of the general rule."

8. It was held in one case, where the land damages had been assessed under the statute, and judgment rendered for the amount against the company, that a subsequent company, formed by the mortgagees of the first company, were responsible for the amount of such judgment, if they continued to operate the road and use the right of way for which the judgment was rendered.8 But this seems a considerable stretch of construction, although eminently just and reasonable.

*SECTION XX.

Lands injuriously affected.

1. Obstruction of way, loss of custom. 2. Equity will not enjoin legal right.

3. Liable for building railway, so as to cut off wharf.

4. Not liable for crossing highway on level.

9, 10. Remote injuries not within the statute. 11. Damages compensated, under statute of Massachusetts.

12. Damages not compensated, as being too

remote.

5. English statute only includes damages, by 13. For negligence in construction, remedy at

construction.

common law.

6. Equity will not enjoin a doubtful claim.
7. Damages unforeseen, at the time of the

14.

Or neglect to repair.

15.

Recovery under the statute, &c.

appraisal, may be recovered, in Eng-
land.

16.

Possession by railway, notice of extent of title.

8. Injuries to ferry, and towing-path, com- 17. Railways have right to exclusive possespensated. sion of roadway.

§ 82. 1. The right of a party to claim consequential damages, where his land was not taken, but only injuriously affected, was very thoroughly discussed by Lord Truro, Chancellor, in a late case,1 where the defendant, a furrier, claimed damage, in consequence of the dust and dirt, occasioned by the company, having injured his goods, and that his customers had been compelled, by the obstruction caused by the company's works, to quit the * Pettibone v. La Crosse & Milw. Railw. Co., 14 Wisc. R. 443; Vilas v. Milw. & Miss. Railw. Co., 15 Id. 233.

• Pfeifer v. Sheboygan & Fond du Lac Railw. Co., 18 Wisc. R. 155.

1 East & W. I. Docks & Birmingham Junction Railw. Co. v. Gattke, 3 Eng. L. & Eq. 59.

side of the road upon which the defendant's shop was situated, before they arrived at that point, and cross the street to get along, by reason whereof he had lost custom. The defendant also claimed that the company had obstructed a passage to his buildings, by which he had an entrance to the back part of his premises.

But where the railway company lowered a highway several feet, thereby greatly obstructing access to plaintiff's dwelling, and obliging him to make use of a ladder for that purpose, it was held that no claim could be maintained under that clause in the statute for injuriously affecting land, the injury complained of being one of a permanent nature, and therefore the subject of compensation under the general provision for land damages.2 But where the works of a railway intercepted water which would have percolated through the strata of the earth into plaintiff's well, and also drained off water which had reached the well by such percolation: It was held the land-owner had no remedy either under the statute or at common law.

*2. This case was an application, by the company, for an injunction to restrain the party from proceeding under the statute, and the court held, that as the party had a clear legal right, under the act of parliament, they could not be deprived of pursuing it in the mode pointed out, and fully affirmed the views of Lord Denman, Ch. J., in Regina v. Eastern Counties Railway Company, where the damage claimed was by lowering a road

2 Moore v. Great Southern & Western Railw. Co., 10 Ir. Com. Law Rep. 46, in Exch. Ch. S. P. Tuohey v. Same, Id. 98. But the English courts seem to consider that compensation in such a case may be given under the provision for damages where land is injuriously affected. Chamberlain v. West End of London & C. Railw., 8 Jur. N. S. 935.

3 New River Co. v. Johnson, 6 Jur. N. S. 374, Q. B. This question is a good deal discussed in a later case, Reg. v. Met. Board of Works, 3 B. & S. 710, where it was held that the railway company were not responsible for underground currents of water intercepted by their works, either at common law or under the statute.

4 2 Ad. & Ellis (N. s.), 347. See post, § 99. In this case the court held that the injuries complained of clearly came within the act, and Lord Denman, in closing his opinion, makes a very significant reply to a class of arguments, not uncommon upon all subjects. "Before we conclude, we shall briefly advert to an argument much pressed upon us; that if we make this rule absolute, any injury to land, at any distance from the line of railway, may become

upon which the land abutted, so as to impede the entrance to the land, and compel the owner to build new fences.

3. The construction of a railway across flats, in front of plaintiff's wharf, gives him a right to damage under the statute of Massachusetts, although the wharf itself remained uninjured.5 But the charter of a railway company having authorized them to make certain specified erections between the chanels of two rivers, and such erections having so changed the currents of the rivers as to render more sea-wall necessary to secure certain wharves and flats in the vicinity, it was held that the damage thereby occasioned was damnum absque injuria.6

8

4. One cannot claim damage of a railway company, by reason of their track crossing a public highway, near his dwelling, upon a level, the highway being the principal approach to his grounds.7 5. In a recent English case, it is held that the English statute, giving compensation, where lands are injuriously affected, was intended to include only such damages as were caused by the erection of the company's works, and not such as might in future * be caused by the use of the works, this being the case of Gas Works, and the 68th section of the Lands Clauses Acts being made a part of the company's special act. But this certainly could not extend to the ordinary use of a railway, which is the only or the principal mode of injuriously affecting lands not taken, and which could be as strictly estimated, at the time of the company's works being erected, as from time to time thereafter.

9

6. In a recent case, where the lessee of an inn and premises,

the subject of compensation. If extreme cases should arise, we shall know how to deal with them; but in the present instance, the alleged injury is to land adjoining a road, which has been 'lowered' under the provisions of the act, and which is therefore land injuriously affected, by an act expressly within the powers conferred by the company."

5 Ashby v. The Eastern Railw. Co., 5 Met. 368; s. c. 1 Am. Railw. C. 356. And in Bell v. The Hull & Selby Railw., 2 Railw. C. 279, a similar decision is made under the English statute.

Fitchburg Railw. v. Boston & Maine Railw. 3 Cush. 58; s. c. 1 Am. Railw. C. 508; Ante, § 75.

Caledonian Railw. v. Ogilvy, 29 Eng. L. & Eq. 22.

* Law Times, February, 1857, p. 329, not yet reported in this country.

• The London & N. W. Railw. Co. v. Bradley, 6 Railw. C. 551.

situated near a tunnel on the company's road, claimed damages, because the vibration caused by the trains prevented him keeping his beer in the cellar in a fit state for his customers, and the value of the house was thereby lessened, being rendered unfit for a public-house; and the plaintiffs moved for an injunction to restrain the defendant from proceeding to assess damages under the statute; the Lord Chancellor denied the motion, upon the ground that the remedy at law was altogether adequate. But his lordship intimated a very decided opinion, that no such damages could be recovered. He says, "Whether an action will lie on behalf of a man who sustains a private injury, by the exercise of parliamentary powers, done judiciously and cautiously, is not an easy question, or rather it is not easy to come to the conclusion that an action will lie. I entertain a decided opinion, (probably however erroneous,) that no such action will lie.” 10

11

7. And where the plaintiff's damages for land taken by the company, and by severance and otherwise, were determined by an arbitrator, but from the road being built across certain flats, with insufficient openings, the waters became dammed up and injured the plaintiff's remaining lands, it was held, he was entitled to recover "as for an unforeseen injury, arising from the manner in which the railway was constructed." But it is here said, "The company might, by erecting their works with proper caution, have avoided the injury." It seems this is the only ground of an action.

*

8. In a doubtful case the court issued an alternative mandamus and required a return of the facts.12 So, too, a party whose

10 Hatch v. Vermont Central Railw. Co., 25 Vt. R. 49; s. c. 28 Id. 142. 11 Lawrence v. Great N. Railw. Co., 6 Railw. C. 656; s. c. 4 Eng. L. & Eq. 265; ante, § 79, n. 6 ; § 74, n. 7 ; L. & Y. Railw. v. Evans, 19 Eng. L. & Eq. 295. Under most of the American statutes, the damages, as well prospective as present, must be assessed at once, and no recovery can be had for unforeseen injury, more than in any case of a recovery of damages for a tort. But in the case of Lancashire & Y. Railw. v. Evans, it is obvious, from the elaborate review of the case by the Master of the Rolls, that the English courts now regard the land-owner as entitled to make new claims, from time to time, as they occur, for any injurious consequence of the construction of the works. For any unlawful act, in the construction or use of the works, an action at common law is the proper remedy.

12 Queen v. The North Union Railw. Co., 1 Railw. C. 729.

ferry has been materially lessened in value, by obstructing access to it, may recover damages of the company under the statute.18 So, too, if a towing-path be obstructed, or the navigation. diverted from it, the owner under a similar statute may have compensation.14 So, too, an occasional flooding of lands, caused by a proper execution of parliamentary powers, is within the remedy given by statute.15

9. Some questions under this head have arisen, in regard to mines and minerals, not of sufficient importance to be stated in detail.16 Where the damage resulted from the company turning a brook, the court ordered a mandamus.17 But brewers, accustomed to take water from a public river, are not entitled to receive compensation when the waters were deteriorated by the works of a dock company.

18

10. It was held that a tithe-owner is not entitled to compensation unless the act contain an indemnity in his favor.19 The interest of a tithe-owner is too remote and incidental to be the subject of general indemnity. It often forms the basis of special statutory provisions for indemnity.

13 In re Cooling, 19 Law J. Q. B. 25; s. c. Hodges on Railways, 277. It is said here that a ferry is different from a public-house, whose custom is said to be injured by obstructing the travel and access to the house, by cutting through thoroughfares leading to it, which, it has been held, is no ground of claiming damage under a similar statute. The King v. The London Dock Co., 5 Ad. & Ell. 163. But this case is considered as overruled by Reg. v. The Eastern Counties Railw. Co., 2 Q. B. 347; Chamberlain v. East End of London & Crys. Pal. Railw. Co., 8 Jur. N. S. 935.

14 The King v. Commis. of Thames & Isis, 5 Ad. & Ell. 804.

15 Ware v. Regents Canal Co., 3 De G. & Jones, 212.

16 Fenton v. Trent & Mersey Nav. Co., 9 M. & W. 203; Cromford Canal Co. v. Cutts, 5 Railw. C. 442; The King v. Leeds & Selby Railw. Co., 3 Ad. & Ell. 683.

17 Reg. v. North Midland Railw. Co., 2 Railw. C. 1.

18 The King v. Bristol Dock Co., 12 East, 429. But where mines below the company's works are injured in consequence of the negligent or imperfect mode of constructing or maintaining the company's structures and cuttings, the person so injured may maintain a common-law action against the company. Bagnall v. London & N. W. Railw., 7 H. & N. 423. Affirmed in Exchequer Chamber, 31 Law J. 480. See also Reg. v. Fisher, 3 B. & S. 191 B. & S. 191; s. c. 9 Jur. N. S. 571; Elliot v. Northeastern Railw. Co., 9 Jur. N. S. 555; s. c. 10 Ho. Lords Cas. 333.

19 Rex. v. The Commissioners of Nene Outfall, 9 B. & C. 875; London & Blackwall Railw. Co. v. Letts, 3 H. L. Cases, 470; Hodges on Railways, 289, n. (m); 8 Eng. L. & Eq. 1.