* 9. In a recent English case 12 it was held, after extended argument and careful consideration, that the owner of a house situated close to a railway, and which suffers depreciation in value from vibration and smoke, not caused by any negligent user of the railway, but being the inevitable result of the ordinary user, has no right to compensation under the English statute, or by distinct action at law. The case is put upon the ground that the legislature having legalized the use of locomotive steam engines by railway companies, adjoining proprietors must submit to the inevitable consequences of a lawful business, however inconvenient it may become; and can sustain no action for damages any more than for the exercise of any other legal business which might depreciate the value of property in the neighborhood. The English statutes are construed to give compensation only for injuries sustained by construction and not by the use of a railway.

proper use of the company's engines, to be considered in estimating land damages, it is certainly contrary to the general course of decisions upon the subject, if not to the very principle upon which such companies have been subjected to such damages as they cause to land-owners, beyond what accrues from the ordinary use of lands for building and agricultural purposes. These decisions in Pennsylvania are still maintained there, and the rule has been applied to the case of buildings where the owner is compelled to pay a higher rate of insurance in consequence of the proximity of the railway. Patten v. Northern Central Railw., 33 Penn. St. 426. It is here maintained that any claim for damages in consequence of the mere intrusion of noise and bustle upon one's seclusion is essentially anti-social, and at war with the fundamental laws of society, which we. should not be inclined to question. And as to all mere conjectural or contingent advantages and disadvantages, it may well be said they are too remote to form an element in estimating land damages. Searle v. Lackawanna Railw., 33 Penn. St. 57. But we cannot admit that either of these rules has any just application to exposure to fire from the company's engines, where the danger is certain and inevitable. Post, § 82.

12 Brand v. Hammersmith & City Railw. Co., Law Rep., 2 Q. B. 223; 12 Jur. N. S. 336. See also Lafayette Plank-Road Co. v. New Albany Railw. Co., 13 Ind. 90.

* 293

SECTION XIII.

Action for Consequential Damages.

1. Statute remedy for lands "injuriously af- | 5. Minerals reserved.

fected."

2. Without statute not liable to action.

6. Damages for taking land of railway for

highway.

3. Are liable for negligence in construction, or 7. Compensation for minerals, when recover

§ 75. 1. The liability of railways for consequential damage to the adjoining land-owners must depend upon the provisions in their charters, and the general laws of the state. In England railway companies are, by express statute,1 made liable to the owners of all lands "injuriously affected" by their railways. And under this statute it has been determined, that if the company do any act, which would be an actionable injury, without the protection of the special act of the legislature, they are liable under the statute.2 So that there, any act of a railway company amounting to a nuisance in a private person, and causing special damage to any particular land-owner, is good ground of claiming damages under this section of the statute.3

2. But in the absence of all statutory provision upon the subject, railways are not liable for necessary consequential damages to land-owners, no portion of whose land is taken, where they construct and operate their roads in a skilful and prudent manner.4

2 Glover v. The North Staffordshire Railw. Co., 16 Q. B. 912; s. c. 5 Eng. L. & Eq. 335; post, § 82.

3 Hatch v. Vt. Central Railw. Co., 25 Vt. 49. See § 82, post.

* Monongahela Nav. Co. v. Coons, 6 Watts & S. 101; Radcliff v. The Mayor of Brooklyn, 4 Comstock, 195; Phil. & Trenton Railw. Co., 6 Wharton, 25; Seneca Road Co. v. Aub. & Roch. Railw. Co., 5 Hill (N. Y.), 170; Hatch v. Vt. Central Railw., 25 Vt. 49; Richardson v. Vt. Central Railw. Co., 25 Vt. 465.

There are many other cases confirming the same general view stated in the text. Henry v. Pittsburgh & Allegheny Bridge Co., 8 Watts & Serg. 85; Canandaigua & Niagara Railw. v. Payne, 16 Barb. 273, where it is held, that injury to a mill upon another lot of the same land-owner, in consequence of the construction and operation of the railway, is a matter with which the commissioners have nothing to do in estimating damages for land. So in Troy &

*3. But if the railways are guilty of imprudence, or want of skill, either in the construction or use of their road, they are * liable Boston Railw v. Northern Turnpike, 16 Barb. 100, it was held that the consideration that the business of a turnpike, which claimed damage, would be diminished by the construction of the railway along the same line of travel, should be disregarded in estimating damage to such turnpike. "Every public improvement," say the court, "must affect some property favorably, and some unfavorably, from the necessity of the case. When this effect is merely consequential the injury is damnum absque injuria. Though their property has undoubtedly depreciated by the construction of the railway, yet the turnpike company enjoy all the rights and privileges secured to them by their charter, and no vested rights have been violated."

Nor is one entitled to damage, in consequence of a highway being laid upon his line, thus compelling him to maintain the whole fence. Kennett's Petition, 4 Foster, 139. In Albany Northern Railw. v. Lansing, 16 Barb. 68, it is said, "The commissioners, in estimating the damages, should not allow consequential and prospective damages."

In Plant v. Long Island Railw., 10 Barb. 26, it is held not to be an illegal use of a street to allow a railway track to be laid upon it, and that the temporary inconvenience to which the adjoining proprietors are subject while the work of excavation and tunnelling is going on is damnum absque injuria. So also in regard to the grade of a street having been altered, by a railway, by consent of the common council of the city of Albany, who by statute were required to assess damages to any freeholder injured thereby, and who had done so in this case, it was held that no action could be maintained against the railway. Chapman v. Albany & Sch. Railw., 10 Barb. 360; Adams v. Saratoga & Wash. Railw., 11 Barb. 414.

And in a case in Kentucky, Wolfe v. Covington & Lexington Railw., 15 B. Monr. 404, it was held, the municipal authority of a city might lawfully alter the grade of a street, for any public purpose, without incurring any responsibility to the adjacent landholders, and might authorize the passage of a railway through the city, along the streets, and give them the power to so alter the grade of the streets, as should be requisite for that purpose, this being done at the expense of the company, and by paying damages to such adjacent proprietors as should be entitled to them. But one, who urged the laying of the road in that place, on the ground that it would benefit him, and who was thereby benefited, cannnot recover damages of the company, upon the maxim, "volenti non fit injuria." A railway, when so authorized, "is not a purpresture, or encroachment upon the public property or rights."

And where a railway company erect a fence upon land which they own in fee, for the purpose of keeping the snow off their road, they are not liable for damages sustained by the owner of land upon the opposite side of the fence, by the accumulation of snow, occasioned by the fence. Carson v. Western Railw., Mass. Sup. Court, 20 Law Rep. 350; s. c. 8 Gray, 423. See also Morris & Essex Railw. v. Newark, 2 Stock. Ch. 352.

And where the act complained of is the construction of an embankment, by a railway company, at the mouth of a navigable creek, in which the plaintiff

to any one suffering special damage thereby, as in needlessly diverting watercourses and streams, and not properly restoring them, whereby lands are overflowed or injured.5

4. And the remedy given by statute for taking or injuriously affecting lands is exclusive of all remedies, at common law, by action, or bill in equity, unless provided otherwise in the statute.6

* 5. But in a late English case, the House of Lords held, that has a prescriptive right of storing, landing, and rafting lumber, for the use of his saw-mill, whereby the free flow of the water is obstructed, and the plaintiff thereby deprived of the full enjoyment of his privilege, the injury is regarded as the direct and immediate consequence of the act of the company, and they are liable for the damages thereby sustained. Tinsman v. The Belvidere Delaware Railw. Co., 2 Dutcher, 148.

See also Rogers v. Kennebec & Portland Railw., 35 Me. 319; Burton v. Philadelphia W. & B. Railw., 4 Harr. 252; Hollister v. Union Co., 9 Conn. 436; Whittier v. Portland & Kennebec Railw., 38 Maine, 26.

Whitcomb v. Vt. Central Railw. Co., 25 Vt., 69; Hooker v. N. H. & N. Y. Railw. Co., 14 Conn. 146; post, § 79. And there is the same liability although the lands are not situate upon the stream. Brown v. Cayuga & Susquehannah Railw., 2 Kernan, 486.

A party is liable to an action for diverting the water from a spring, which ran in a well-defined channel into a stream supplying a mill, at the suit of the millowner, notwithstanding he had permission from the owner of the land where the spring arose. Aliter if the spring spread out upon the land, having no channel. As the land-owner might drain his land, so he may give permission to others to do so. Dudden v. The Union, 1 Hurlstone & Norman, 627. See also Brown v. Illius, 27 Conn. 84; Robinson v. New York & Erie Railw., 27 Barb. 512; Waterman v. Conn. & Pass. Riv. Railw., 30 Vt. 610; Henry v. Vermont Central Railw., id. 638. But in this last case it was decided that the effect of erecting a bridge in a stream upon the course of the current below was so far incapable of being known or guarded against, that there was no duty imposed upon railway companies to guard against an injury to land-owners below by a change of the current. See, also, New Albany & C. Railw. Co. v. Higman, 18 Ind. 77; Same v. Huff, 19 id. 315; Colcough v. Nashville & N. W. Railw. Co., 2 Head, 171.

• Regina v. Eastern Counties Railw., 2 Q. B. 347, 569 ; s. c. 3 Railw. C. 466. But in this case the act expressly provided, that the verdict and judgment should be conclusive and binding, which most railway acts do not; but it seems questionable if this will make any difference. E. & W. I. Docks, &c. v. Gattke, 3 Mac. & Gor. 155; s. c. 3 Eng. L. & Eq. 59; post, § 81.

7 Caledonia Railw. v. Sprot, 2 McQu. Ho. Lds. 499; s. c. 39 Eng. L. & Eq. 16. But in Bradley v. New York & New H. Railw., 21 Conn. 294, where the defendants' charter gave them power to take land, and made them liable for all damages to any person or persons, and they excavated an adjoining lot to plaintiff's, so as to weaken the foundations of his house, and erected an embankment in the highway opposite his house, so as to obscure the light, and render it other

a railway company which had been condemned to pay for land, the owner reserving the minerals, were not liable to the landowner, by reason of his inability to work a mine which he had discovered under the railway. The Lord Chancellor said, "The conveyance of the surface of land gives to the grantor an implied right of support, sufficient for the object contemplated, from the soil of the grantor, adjacent as well as subjacent."

6. And it has been held, that in estimating damages to a railway in consequence of laying a highway across land occupied by them, it is not proper to take into account the probable increase of business to the company in consequence.8

7. And where the company take land, but decline to purchase the minerals after notice from the owner of his intention to work them, pursuant to the English statute, the company is not entitled to the subjacent or adjacent support of the minerals. And where the company gave notice, under the statute, that the working of the mines was likely to injure the railway, the owner was held entitled to recover compensation which had been assessed under the statute.9

wise unfit for use, it was held, that this did not constitute a taking of plaintiff's land, but that defendants were liable to consequential damage under their charter.

But in the early case of the Wyrley Nav. v. Bradley, 7 East, 368, it is considered that, where the act of parliament reserved the right to dig coal to the proprietor of mines, unless the company, on notice, elected to purchase and make compensation, where the canal was damaged by the near approach of the mine, after such notice, and no compensation made, the coal-owner was not liable, although it is there said to be otherwise in case of a house, undermined by digging on the soil of the grantor. But this case seems to turn upon the reservation in the grant.

8 Boston & Maine Railw. v. County of Middlesex, 1 Allen, 324. The reservation in a deed of land to a railway company of the right to make a crossing over the land, creates an easement in the land, but does not extend such easement across the other lands of the company. Ib.

9 Fletcher v. Great Western Railw., 4 H. & N. 242. And in North Eastern Railw. Co. v. Elliott, J. & H. 145; s. c. 6 Jur. N. S. 817, it was held that the general principle, that a vendor of land sold for a particular use cannot derogate from his own grant by doing any thing to prevent the land sold from being put to that use, applies to sales to railways under compulsory powers. But it was here said that this principle will not compel the vendor of land to perpetuate any thing upon the portion of the land retained by him, which is merely accidental, though existing and of long standing at the date of the sale. Hence, where a railway company took land for a bridge in a mining district, where a shaft had been sunk many years before, but the working of the mines abandoned and the shaft filled with water for a long time before the taking of the land, it was held that the land