liable, as a municipal corporation, for insufficient sewers, whereby plaintiff's factory was overflowed in a freshet, and the property therein seriously injured.7

5. In a case, where the plaintiff's garden was overflowed, by the manner in which an excavation was made, in the course of construction of a railway across a road, or highway, by carelessly cutting into a drain, or culvert, and letting out the water, it seems to have been admitted, on all hands, that the company would have been liable for the injury if it had been done by persons under their control, or in accordance with the directions of their surveyor or engineers.8

6. And where the plaintiff owns a dock on the east side of Hudson River, on the margin of a bay, under a charter from the * state, in 1849, and the Hudson River Railway, in pursuance of its charter, granted in 1846, constructed their road across the bay, on piles, about nineteen hundred feet west of the dock, with a drawbridge sufficient to allow a passage to such vessels as had before navigated the bay, the charter of the railway containing a provision, that if any dock shall be "cut off" by the railway, the company shall extend the same to their road, it was held that this dock was not "cut off," within the meaning of the provision.9

7. And under the New York statute, and the same rule would probably apply in other states, a railway company which is compelled to divert a stream of water in the construction of its road is bound not only to restore it, as nearly as practicable, to its former state, but also to maintain it there, since the mere restoration of the stream may not leave it as secure as before.10

8. But surface water produced by the excavation in building the railway is not to be regarded in the same light as water confined to a natural channel, and in such case the company will be

7 Rochester White Lead Co. v. The City of Rochester, 3 Comst. 463. See also Radcliff v. Brooklyn, 4 Comst. 195; Mayor of New York v. Furze, 3 Hill, 612; Bailey v. Mayor of New York, 3 Hill, 531.

Steel v. Southeastern Railw., 16 C. B. 550; s. c. 32 Eng. L. & Eq. 366. See § 129, post, for a full statement of this case. But there is no liability incurred towards a mill-owner below, by cutting off springs, in sinking wells upon one's own land. Chasemore v. Richards, 2 H. & N. 168; s. c. 29 Law Times, 230.

9 Tillotson v. Hudson River Railw., 15 Barb. 406.

10 Colt v. Lewiston Railw., 36 N. Y. 214.

liable to an action for turning it upon the land of an adjoining proprietor, unless that becomes indispensable in order to maintain the railway, and is done in a manner to do the least injury to the land-owner.11

SECTION XVIII.

Obstruction of Private Ways.

1. Obstruction of private way matter of fact; 3. But railway may lawfully pass along pubneed not be illegal.

2. Farm road on one's own land, and private

way.

lic street.

§ 80. 1. Where the statute gives a right of action against the company, when in the construction or management of their road they shall obstruct the safe and convenient use of a private way, it was held not necessary to the maintenance of the action that the railway should be constructed or managed in an illegal and improper manner.1 But if the railway be shown to have been constructed and managed in a proper manner, and a passage over the railway provided for the private way, the court cannot decide, as matter of law, whether the safe and convenient use of the way is obstructed or not. That is a question of fact to be settled by the jury.2

2. But a farm road, which the owner of the land has constructed for the convenient use of his farm, is not to be regarded as a private way, within the meaning of a railway act.3 A private way, within the construction of the railway acts, is a way, or right of way, which one man has in the land of another.4

*The owner of a private way, for the purpose of recovering penalties for its obstruction, is the person who, for the time being, owns such road in possession."

3. But it has been held, that, where the plaintiff's right of way

11 Curtis v. Eastern Railw., 14 Allen, 55.

1 Concord Railw. v. Greely, 3 Foster, 237.

2 Greenwood v. Wilton Railw., 3 Foster, 261.

3 Clark v. The Boston, Concord, & Montreal Railw., 4 Foster, 114.

4 Bliss v.

6

Passumpsic River Railw., Vermont Sup. Court, not reported.

5 Mann v. Great Southern & Western Railw., 9 Ir. Com. Law Rep. 105. McLaughlan v. Charlotte & S. C. Railw., 5 Rich. 583. But this decision seems to rest upon the peculiar views of this state upon that subject, that it is lawful to take private property for public use without compensation, their state

in another's land was obstructed by the passage of a railway through the streets of a town, in accordance with their charter, no action for damages could be maintained, and that the party could have no redress, unless his case came within the provisions of the statute allowing compensation.

SECTION XIX.

Statute remedy Exclusive.

1. Remedy for land taken, exclusively under | 4. Important case in the House of Lords.

§ 81. 1. It seems to be well settled, notwithstanding some exceptional cases, that the remedy given by statute to land-owners for injuries sustained by taking land for railways, is exclusive of all other remedies, and not merely cumulative.1

constitution containing no provision upon the subject. But the reported cases in this state, from the first, Dun v. City Council of Charleston, 1 Harper, 189 (1824), manifest a scrupulous regard to the rights of property owners, when attempted to be interfered with for other than strictly public purposes. And we are not aware that practically, and as a general thing, the legislature of this state have exercised the theoretical right which it possesses, of taking private property for public use without compensation. We believe that is not the

fact.

1 East and West India Dock & Birmingham Junction Railw. Co. v. Gattke, 3 Mac. & Gor. 155; s. c. 3 Eng. L. & Eq. 59; Watkins v. Great Northern Railw. Co., 16 Q. B. 961; s. c. 6 id. 179; Kimble v. White Water Valley Canal, 1 Carter, 285; Knorr v. Germantown Railw. Co., 1 Wharton, 256; Mason v. Kennebec & P. Railw. Co., 31 Maine, 215; s. c. 1 Am. Railw. C. 62; McCormack v. Terre Haute & Richmond Railw., 9 Ind. 283. But in Carr v. The Georgia Railw. & Banking Co., 1 Kelly, 524, it was held, the statute remedy was not exclusive, but merely cumulative. This case professes to go upon the authority of Crittenden v. Wilson, 5 Cowen, 165, where it was held, that the party whose lands had been overflowed, by means of a dam erected by the authority of the legislature, which contained a provision for estimating damages to land-owners injured thereby, - might maintain an action as at common law. These decisions go upon the principle, found in some of the elementary books, that a statutory remedy for what was actionable at common law is prima facie to be regarded as cumulative merely. It seems now to be the generally received opinion upon this subject, that the statutory remedy, being more ample and

*2. But if the railway company have assumed to appropriate the land, in violation of the provisions of the statute to be complied with on their part, their acts are ordinarily to be regarded as trespasses; and where they have acquired the right to the use of the land, but have omitted some duty imposed by the statute, or where they have been guilty of negligence, or want of skill, in the exercise of their legal rights, they make themselves liable to an action upon the case at common law.2

more specific, is ordinarily to be regarded as exclusive. But the settled difference of opinion, among the judges of the Queen's Bench upon the subject, in Kennett Nav. Co. v. Withington, 18 Q. B. 531; s. c. 11 Eng. L. & Eq. 472, shows that the matter is not quite settled in that country.

The learned editors of the American Railway Cases have an able and very satisfactory note upon this subject in which most of the authorities bearing upon the point are thoroughly revised. 1 Am. Railw. C. 166, 167, 168, 169, 170, 171.

In Aldrich v. The Cheshire Railw., 1 Foster, 359; s. c. 1 Am. Railw. C. 206, it is held, that the statute remedy is exclusive of all others. So also in Troy v. The Cheshire Railw., 3 Foster, 83, it is held, that the statute remedy must be followed, as far as it extends, but if it only extend to part of the injury occasioned, the party may have his action at common law for the residue.

But where a railway company are ordered to make and maintain a private way, for the benefit of a party, and fail to comply, the appropriate remedy is the one pointed out in the statute. White v. Boston & Prov. Railw., 6 Cush. 420. And where the statute provides no specific remedy in such a case, an action on the case will lie probably upon general principles.

But in an English case, Ambergate, Nott. & Boston & E. J. Railw. v. Midland Railw., 2 El. & Bl. 823; s. c. 22 Eng. L. & Eq. 289, where the statute gives a penalty for one company running its engines upon the track of another company, without first having obtained the requisite certificate of approval of the engines by the second company, it was held, that this did not take away the common-law right of seizing the engines, while upon their track, damage feasant. And having made the distress upon the engine, while so unlawfully on their track, and the first company having demanded its surrender, after it had been removed off the defendant's line, with the declared purpose of using it again in the same way; that such demand was illegal, and the defendants justified in not acceding to it. See also, in confirmation of the general proposition of the text, New Albany & Salem Railw. v. Connelly, 7 Porter (Ind.), 32; Leviston v. Junction Railw., id. 597; Lebanon v. Alcott, 1 N. H. 339; Victory v. Fitzpatrick, 8 Ind. 281. See, also, Colcough v. The Nashville & N. W Railw. Co., 2 Head, 171; Brown v. Beatty, 34 Miss. 227; Indiana Central Railw. Co. v. Oakes, 20 Ind. 9.

2 Watkins v. Great Northern Railw. Co., 12 Q. B. 961; s. c. 6 Eng. L. & Eq. 179; Dean v. Sullivan Railw. Co., 2 Foster, 316; s. c. 1 Am. Railw. C. 214; Mayor of Lichfield v. Simpson, 8 Ad. & Ellis (N. s.), 65; Furniss v. Hudson River Railw. Co., 5 Sandf. S. C. 551; Turner v. Shef. & Rotherham Railw., 10 M. & W. 425. In this last case, the injury complained of was, the

3. And the courts of equity will in many cases interfere by injunction, where railway companies are proceeding to take land contrary to the provisions of the act of parliament.3

4. In the House of Lords, in a recent case, this principle is very extensively discussed, although not arising in the case of a railway, or where the land itself was proposed to be taken. But here the injury complained of was, that the company's works, in the manner in which they had been carried on, rendered the respondent's land useless. This was done by means of the gas escaping from the company's works deadening the life of vegetation, the respondent being a market gardener. The respondent had brought an action against the company for the nuisance, which, by agreement, upon the suggestion of the court, had been referred to an arbitrator, who had reported damages, as having accrued in the mode complained of, to a considerable extent. obstruction of ancient lights by the erection of the company's station-house, done under the act; and the dust, &c., drifted from the station-house and embankment into the plaintiff's house. The plaintiff's house not being upon the schedule attached to the bill, the company had no right under the act to take it, or injuriously to affect it. So that the parties stood as at common law. See also Shand v. Henderson, 2 Dowl. P. C. 519; Davis v. London & Blackwall Railw., 2 Scott, N. R., 74; s. c. 2 Railw. C. 308.

3 Stone v. Commercial Railw., 9 Sim. 621; s. c. 1 Railw. C. 375; Lord Chancellor in Manser v. N. & E. Railw. Co., 2 Railw. C. 380, 391; Priestly v. Manchester & L. Railw. Co., 4 Yo. & Col. Ex. 63; s. c. 2 Railw. C. 134; London & Birmingham Railw. Co. v. Grand Junction Canal Co., 1 Railw. C. 224. In this case, as well as the next preceding, it is said the company is to be the judge of the most feasible mode of carrying forward its own operations, and is not liable to be called to account for the exercise of his discretion, so long as they act bona fide, and with common prudence.

But it affords no just ground of equitable interference, that the special tribunal, provided by statute to have exclusive jurisdiction of certain claims, is altogether incompetent to decide such questions as naturally arise. If any such defect exists, the legislature alone can afford redress. Barnsley Canal Co. v. Twibill, 7 Beav. 19; s. c. 3 Railw. C. 471.

Nor is the land-owner entitled to maintain a common-law action, because he refused to join in the proceedings under the statute, the company having proceeded ex parte, and caused an appraisal, and deposited the sum awarded for compensation. Hueston v. Eaton & H. Railw., 4 Ohio N. S. 685. See also The Western Maryland Railw. Co. v. Owings, 15 Md. 199; Sturtevant v. Milw. Wat. & B. Railw. Co., 11 Wisc. 61; Powers v. Bears, 12 Wisc. 213; Davis v. La Crosse & Milw. Railw. Co., id. 16; Burns v. Milw. & Miss. Railw. Co., Wisc. 450.

4 Imperial Gas Light & Coke Co. v. Broadbent, 7 Ho. Lds. 606; s. c. 5 Jur. N. S. 1319.