*

11. In a recent well-considered case, the rule in regard to what damage is to be included under the terms "lands injuriously affected," or equivalent terms, is thus laid down: "All direct damage to real estate by passing over it, or part of it, or which affects the estate directly, although it does not pass over it, as by a deep cut or high embankment, so near lands or buildings as to prevent or diminish the use of them, by endangering the fall of buildings, the caving of earth, the draining of wells, the diversion of water-courses," by the proper erection and maintenance of the company's works. "Also, as being of like character, blasting a ledge of rocks so near houses or buildings as to cause damage; running a track so near as to cause imminent and appreciable danger by fire; obliterating or obstructing private ways leading to houses or buildings,” — all these and some others, doubtless, are included.

12. "But that no damage can be assessed for losses arising directly or indirectly from the diversion of travel, the loss of custom to turnpikes, canals, bridges, taverns, coach companies, and the like; nor for the inconveniences which the community may suffer in common, from a somewhat less convenient and beneficial use of public and private ways, from the rapid and dangerous crossings of the public highways, arising from the usual and ordinary action of railroads, and railroad trains, and their natural incidents." 20

13. It is held also in this case, that no damages can be assessed under the statute, for cutting through a watercourse in making an embankment without making a culvert, whereby the water is made to flow back and injure the plaintiff's land, at a distance

20 Proprietors of Locks & Canals v. Nashua & Lowell Railw., 10 Cush. 385. Shaw, Ch. J. (391, 392). Nor is the party, whose lands lie near a railway line, entitled to compensation, for being injuriously affected, by persons in the trains overlooking the grounds, thus rendering them less comfortable and secluded, for the walks of the family and visitors. Nor can the party claim compensation for vibration of the ground caused by the use of the road, the statute only extending to damages caused by the construction of the works. Reg. v. Southeastern Railw., in re Penny, 7 Ellis & Black. 660, ante pl. 5. But actual injury during the construction of a railway, by vibration caused by the ballast trains, is to be compensated; but by Campbell, Ch. J., it is said such vibration caused by running trains after the road is completed will merit a different consideration. Ib. See also Croft v. London & N. W. Railw. Co., 3 B. & S. 436.

from the railway, no part of which is taken, the remedy being by action at common law.20

14. And where the company, by consent of the land-owner, enters upon the land and makes the requisite erections, which are subsequently conveyed to them with the land by the land-owners, it was held such grantor is not estopped from claiming damages resulting from want of proper care and skill in constructing the works, or from neglect to keep them in repair.2

15. The rule of the English courts that damages can only be recovered for injuriously affecting land, where but for the statute the act complained of would be just ground of action at common law, does not apply where part of the land is taken and damages are sought, not only for the part taken but for the rest of the land being injuriously affected, either by severance or otherwise.22 And it was here held that the owner of a mill was entitled to have damages assessed to him for the increased exposure of the same to fire by the passage of the company's trains. But loss of trade caused by the operations of the company during the construction of their works is not damages for which the party is entitled to compensation.23 But a person may claim damages on the ground of being injuriously affected on account of the obstruction or diversion of a public way by the construction of the works of a railway.24

16. The owners of land adjoining a railway track are affected with presumptive notice of the rights of the company from long use, the same as in regard to other owners in possession.25 And equity will enjoin an adjoining owner to a railway track against making erections which will interfere with the company repairing its track.26

21 Morris Canal & Banking Company v. Ryerson, 3 Dutcher, 457; Waterman v. Conn. & Pass. Riv. Railw., 30 Vt. R. 610; Lafayette Plank Road Co. v. New Albany, &c. Railw., 13 Ind. R. 90.

22 S. T. & A. Railw. Co., in re, 10 Jur. N. S. 614.

23 Senior v. Met. Railw. Co., 2 H. & C. 258, Cameron v. Charing-Cross Railw. Co., 16 C. B. N. S. 430; overruled in Exch. Ch., Ricket v. Same Co., 13 W. R. 455, where the proposition of the text is established.

24 Wood v. Stourbridge Railw. Co., 16 C. B. N. S. 222. See also Boothby v. Androscoggin & K. Railw. Co., 51 Me. R. 318.

25 Macon & Western Railw. Co. v. McConnell, 27 Ga. R. 481.

20 Cunningham v. Rome Railw. Co., 27 Ga. R. 499.

17. It seems scarcely needful to repeat what has been so often declared by the courts, that railways have the exclusive right to possession of their roadway, and to exclude all intrusions thereon, whether from persons or structures.27

§ 83. 1. The English statute provides for the protection of the interests of lessees in certain cases. And lessees from year to year have recovered, for the good-will of the premises, which would have been valuable as between the tenant and a purchaser, although it was not a legal interest as against the landlord.2 But not when the tenancy was from year to year, determinable at three months' notice, with a stipulation against underletting without leave.2 So, too, an under-tenant is entitled to compensation for good-will. But in a lease for fourteen years, with covenant to yield up the premises at the end of the term, with all fixtures and improvements, where the company suffered the lease to expire and then turned out the tenant, held that he was entitled to compensation for good-will and the chance of

3

27 Railw. Co. v. Hummell, 44 Penn. St. 375; Harvey v. Lackawanna & B. Railw. Co., 47 Id. 428.

1 8 & 9 Vict. c. 18, §§ 119 to 122, and 8 & 9 Vict. c. 20, § 43.

2 Ex parte Farlow, 2 B. & Ad. 341; The Matter of Palmer v. Hungerford Market, 9 Ad. & Ellis, 463.

* Rex v. The Hungerford Market, 4 B. & Ad. 592.

beneficial renewal, but not for improvements, but nevertheless these might be considered by the jury in estimating the chance of beneficial renewal.4

2. The loss which a brewer sustained by having to give up his business till he could procure other premises, suitable for carrying it on, was held a proper subject of compensation under a similar statute.5 Where the act required tenants from year to year to give up premises to the company, upon six months' notice to quit, *without reference to the time when their term began, but allowed them compensation, if required to leave before their term expired, it was held, that when the six months' notice required the tenant to leave at the end of his term, he was not entitled to compensation. But where a tenant gives up premises under a six months' notice from a railway company, when he is entitled to compensation, without demanding it of the company, he is still bound to pay full rent to his landlord.7

3. Church property in England is estimated with reference to the cost of a new site and similar erections, to be fixed by agreement between the company and the diocesan and archbishop of the province. But after this appropriation of the site of a church to secular purposes, the rector is entitled to have his interest in the premises connected therewith estimated at its value for secular uses.8

4. Where the charter of a company imposed a penalty upon them for any obstruction or interruption of a road, and in the case of a private road gave the right to recover the penalty to the owner of the road, it was held, that the tenant of the farm over which the road passed could not sue for the penalty.9

5. Where land of a deceased person is taken for a railway,

* Rex v. The Hungerford Market, 4 B. & Ad. 592. But the case of Rex v. Liv. & Manchester Railw., 4 Ad. & Ellis, 650, seems to treat a similar estate as absolutely gone, at the end of the term, and the company bound to make no compensation.

5 Jubb v. Hull Dock Co., 9 Ad. & Ellis (N. s.), Q. B. 443.

6 The Queen v. London & Southampton Railw. Co., 1 Railw. C. 717.

7 Wainwright v. Ramsden, 1 Railw. C. 714.

Hilcoat v. The Archbishops of Canterbury & York, 10 C. B. 327.

• Collinson v. Newcastle & Darlington Railw., 1 Car. & Kir. 546.

the heir and not the administrator is entitled to the damages for such taking, and to prosecute for the recovery thereof, although the administrator had previously represented the estate insolvent, and afterwards obtained a license to sell the real estate for the payment of debts.10

6. And a tenant, whose lease began before, and who was in possession at the time an injury was done, is entitled to recover damages for an injury sustained by him, in building a turnpike road.11 But the lessor and lessee are each entitled to recover compensation for the damage sustained by them respectively.12

7. And where the plaintiff had no access to his land except over the land of his grantor, it was held, that he had a way, by necessity, across such land, and that he was entitled to maintain an action against a railway company for obstructing it.13

8. So also where the free flow of water from a saw-mill is obstructed by the erection of a railway bridge below the mill, the company are liable to the owner of the mill in an action of tort.14 But they are not liable for any increased expense thereby occasioned to the mill-owner, in getting logs up the stream to his mill, whether the stream be navigable for boats and rafts, or not.14

9. Where the statute gives remedy against all persons interested, the occupant of land is liable to be effected by the proceedings, and a similar construction will prevail where the remedy is given to all interested.15

It seems indispensable to the asserting of any valid claim for land damages that the claimant prove the character and extent

10 Boynton v. Peterboro & Shirley Railw., 4 Cush. 467.

11 Turnpike Road v. Brosi, 22 Penn. St. 29.

12 Parks v. City of Boston, 15 Pick. 198. See also Burbridge v. New Albany & S. Railw., 9 Ind. R. 546.

13 Kimball v. The Cocheco Railw., 7 Fost. 448.

14 Blood v. Nashua & Lowell Railw., 2 Gray, 137.

15 Gilbert v. Havermeyer, 2 Sand. 506. The term "owner" in a statute requiring compensation by railway companies for land taken by them includes every person having any title to or interest in the land, capable of being injured by the construction of the road, and extends to the interest of a lessee or termor. Balt. & Ohio Railw. v. Thompson, 10 Md. R. 76; Lewis v. Railw., 11 Rich. 91; Sacramento Railw. v. Moffatt, 7 Cal. R. 577.