empowered to purchase land not exceeding 50 acres for station-yards. for cattle, the House of Lords (reversing the judgment of the Court of Appeal) held that the company were entitled to select the site, just as, in making the original railway, they were entitled to select a line. within the limits of deviation; and that the use for the purposes of the Act of the site so selected, although necessarily a nuisance, did not make them liable to an action.

In contrast to the last mentioned case is the case of Hill v. Metr. Asylum Board (H. L. 1881), 6 App. Cas. 201; 50 L. J. Q. B. 353. The defendants were a corporation constituted under the Metropolitan Poor Act 1867 (30 & 31 Vict. c. 6), which authorises the formation of districts and district asylums for the care and cure of sick and infirm poor, and enables the corporations constituted under the Act to acquire lands by voluntary purchase, and to erect buildings, for the purposes of the Act. The House of Lords held that the Act did not authorise these things to be done so as to create a nuisance to the neighbourhood of any land purchased or used. And the defendants, having erected buildings at Hampstead which they used as a small-pox hospital, and this having been found in fact to be a nuisance to the neighbourhood, the House decided that an injunction had been rightly granted by the Court of first instance. Lord SELBORNE observed that in granting the general powers of the Act, the legislature may be assumed to have thought it possible that they might be exercised somewhere, without creating a nuisance; and he distinguished the case from one where the legislature granted specific powers, to be exercised within well defined limits. And Lord BLACKBURN (6 App. Cas. p. 203) observes, referring to an expression of Lord CAIRNS in the Hammersmith Railway Case (L. R. 4 H. L. 215): "It is a reductio ad absurdum to suppose it left in the power of the person who had the cause of complaint, to obtain an injunction, and so prevent the doing of that which the legislature intended to be done at all events. The legislature has very often interfered with the rights of private persons, but in modern times it has generally given compensation to those injured; and, if no compensation is given, it affords a reason, though not a conclusive reason, for thinking that the intention of the legislature was, not that the thing should be done at all events, but only that it should be done, if it could be done, without injury to others. What was the intention in any particular Act is a question of the construction of the Act."

Intermediate in its circumstances, between the two last cited cases, is the older one of Reg. v. Bradford Canal Nav. Co. (1865), 6 B. & S. 631; 34 L. J. Q. B. 191, where the canal company having been empowered by their Acts, to supply their canal from two sources, both

of which were unpolluted at the time of the Acts, were held not to be justified in creating a nuisance by continuing to supply their canal from one of the sources which had since become polluted.

AMERICAN NOTES.

The rule of the principal case is universally recognized here, discarding the earlier rule of some other cases in England.

"We have not in this State adopted the rule of the English courts, which in substance holds that proof that the fire was communicated from the engines of the company throws upon the defendant the burden of showing that there was no want of care, diligence, or skill in their construction or management. Piggot v. E. C. R. Co., 54 Eng. Com. Law, 228. Our rule holds that the use of locomotive engines in the business of railroads being lawful, no presumption of negligence arises from the mere fact that fire has been communicated from them." Field v. N. Y. Cent. R. Co., 32 New York, 349.

"It seems to have been assumed in this country that the business of railways being lawful, no presumption of negligence arises from the fact of fire being communicated by their engines." Redfield on Railways, § 125 (5); Pierce on Railroads, 431; Lyman v. Boston, &c. Ry., 4 Cushing (Mass.), 288; Burroughs v. Housatonic Ry. Co., 15 Connecticut, 124; Morris, &c. R. Co. v. State, 36 New Jersey Law, 553. In the last case, in the court of errors and appeals, the principal case was cited and followed. In Burroughs v. Housatonic R. Co., supra, the court say: "It was indeed estimated that the legislature could not authorize the company to do the act they have done. If by this is meant that they could not authorize them to burn this building without making compensation, it will not be denied. But to say that they can pass no Act which, in its remote consequences, and in connection with other causes, may affect private property, is a refinement which has never been recognised." The court further hold that there is no difference between original and derivative rights, and conclude that "where there is neither negligence nor folly in doing a lawful act, the party cannot be chargeable with the consequences."

The same principle is laid down in Chapman v. Atlantic, &c. R. Co., 37 Maine, 92; Phila., &c. R. Co. v. Hendrickson, 80 Penn. St. 182; 21 Am. Rep. 97; Chicago, &c. R. Co. v. Pennell, 94 Illinois, 448; Gandy v. Chicago, &c. R. Co., 30 Iowa, 420; 6 Am. Rep. 682; Louisville, &c. R. Co. v. Richardson, 66 Indiana, 43; 32 Am. Rep. 94; Leavenworth, &c. R. Co. v. Cook, 18 Kansas, 261; Baltimore, &c. R. Co. v. Woodruff, 4 Maryland, 242; Burroughs v. Housatonic R. Co., 15 Connecticut, 131.

The principal case is cited in Cogswell v. N. Y., &c. R. Co., 103 New York, 10; 56 Am. Rep. 6, note, but only incidentally and illustratively; and so in Sawyer v. Davis, 136 Massachusetts, 239; 49 Am. Rep. 27. In the latter the court observe: "The legislative sanction makes the business lawful, and defines what must be accepted as a reasonable use of property and exercise of rights on the part of the railroad company, subject always to the qualification that the business must be carried on without negligence or unnecessary disturbance of the rights of others."

No. 9. - River Wear Commissioners v. Adamson. - Rule.

No. 9. RIVER WEAR COMMISSIONERS v. ADAMSON.

(H. L. 1877.)

RULE.

WHERE a statute imposes upon persons of a general description a liability in respect of a matter for which a common-law liability would attach, the court will, if possible, read into the statute the common-law exception of inevitable accident.

So that where by a Harbour Act it was enacted that the owner of every vessel or float of timber should be answerable to the Harbour Commissioners for any damage done by such vessel &c., it was held by the House of Lords, affirming the judgment of the Court of Appeal, that in a case where damage to the pier had been occasioned by a vessel, through the violence of the winds and waves at a time when the master and crew had been compelled to escape from the vessel, and had consequently no control over it, the owners were not liable.

River Wear Commissioners v. Adamson.

47 L. J. Q. B. 193; 2 App. Cas. 437.

This was an appeal against a decision of the Court of Appeal, reversing a decision of the Court of Queen's Bench.

The appellants were the Commissioners appointed under the Harbours, Dock, and Piers Act, 1847 (10 Vict. c. 27), for constructing and maintaining a pier at the mouth of the river Wear.

The respondents were the owners of the steamship Natalian, which, on the 17th of December, 1872, was caught by a violent storm while on a voyage from London to Newcastle. While endeavouring to enter Sunderland harbour she was driven aground near the appellants' pier, and the master and crew were compelled to save their lives by abandoning the ship. As the tide rose, the abandoned ship floated, and was driven by the storm against the appellants' pier, causing injury to the amount of £2825 138.

This action was brought by the appellants to recover damages for the injury from the respondents as owners of the vessel. Allegations of negligence were mutually made by both parties, but withdrawn at the trial.

The case was tried before QUAIN, J., at the Durham Summer Assizes, 1873, when a verdict was entered for the plaintiffs, the appellants, with leave to move to enter a nonsuit or a verdict for the defendants.

The Court of Queen's Bench refused the rule, but their decision was reversed by the Court of Appeal. This appeal was brought to the House of Lords.

The section of the Act on which the case turned, is as follows (10 Vict. c. 27. s. 74): "The owner of every vessel or float of timber shall be answerable to the undertakers for any damage done by such vessel or float of timber, or by any person employed about the same, to the harbour, dock, or pier, or the quays or works connected therewith; and the master or person having the charge of such vessel or float of timber, through whose wilful act or negligence any such damage is done, shall also be liable to make good the same; and the undertakers may detain any such vessel or float of timber until sufficient security has been given for the amount of damages done by the same; provided always that nothing herein contained shall extend to impose any liability for any such damage upon the owner of any vessel where such vessel shall, at the time when such damage is caused, be in charge of a duly licensed pilot, whom such owner or master is bound by law to employ and put his vessel in charge of."

Argued for the appellants: The object of the legislature was to protect the undertakers of these works; and the words of the 74th section show clearly that the protection was to be without restriction, and beyond that afforded by the common law. The circumstance of the persons in charge of the vessel not being on board cannot deprive the pier constructors of this protection. Eglington v. Norman, 46 L. J. (Ex.) 557. The meaning of this section of the statute was considered in Dennis v. Tovell, L. R., 8. Q. B. 10. There, it is true, the master and crew were on board, but it was distinctly found that the mischief was "inevitable." The principle of Rylands v. Fletcher (p. 235, ante) is an authority for establishing the liability of the shipowner; for he brought to the pier something which would be mischievous if not kept under

No. 9. River Wear Commissioners v. Adamson.

proper control. In R. v. Leigh (1839), 10 A. & E. 398, it was held that a landowner may be liable by prescription to repair sea-walls, though destroyed by extremely tempestuous weather. In Nichols v. Marsland (p. 262, ante) the obligation was created by a mere implication of law, and cannot be compared to that imposed by the unequivocal words of a statute. In The Merle (1874), 31 L. T. 447, it was held in similar circumstances that the shipowner was under this (74th) section prevented from setting up the defence of inevitable accident. There was not here any evidence of such an overwhelming power of storm as to excuse the defendants from not doing something else; but even if there had been, that would not take them out of the operation of the express words of the

statute.

Argued for the respondents: The object of the statute was to regulate procedure, not to create a new liability; so that where there was a proper title to indemnify, the pier undertakers should have somebody to resort to without being embarrassed by legal technicalities. There was no proper cause for compensation here. The damage was occasioned by the storm, after the men had been with difficulty saved from the wreck, and when no human power had any control over the vessel. The cases of liability under a covenant to pay rent, although the premises have been destroyed by fire (Paradine v. Jane, Aleyn, 26; Brewster v. Kitchell, 1 Salk. 198), have no analogy to the question under a legislative provision like the present. The case of R. v. Commissioners of Sewers for W. Somerset (1799. 4 R. R. 659; S T. R. 312) showed that although the adjoining owners were bound to repair a sea-wall, if that wall was destroyed by tempest, the expense fell not upon them but upon the owners generally of the level. In Nugent v. Smith (1876), 1 C. P. D. 423, a common carrier was held not to be an insurer against the death of an animal which during tempestuous weather struggled violently and in the end died.

The LORD CHANCELLOR (Lord CAIRNS). The steamship Natalian was attempting, under stress of water, to enter the Sunderland Docks, belonging to the appellants. While she was still in the open sea, about forty or fifty yards from the pier, she struck the ground, canted with her head to the south, and drifted bodily ashore. The crew were rescued from the ship by the rocket apparatus. The tide was low at the time, and, as the tide rose, the flood and the storm drifted the ship against the pier, and