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The company were now proceeding to make a very extensive addition to their works, when the respondent obtained an injunction against them, which, upon final hearing before the chancellor, assisted by the common-law judges, had been made perpetual," and the question was then appealed by the company into the House of Lords.

5. It was here held, affirming the decision below, that in such case the plaintiff in equity cannot claim a perpetual injunction, until his right is first established at law. But this was sufficiently done in the present case, by the award of the arbitrator. But after the right is once established at law, it is the province of the equity judge to determine how far the cause of complaint may have been removed by any subsequent alteration of the works; and this question will not be referred to a trial at law.

6. It was also held here that the respondent had no remedy under the statute, and consequently, although such statutory remedy to its extent was necessarily exclusive of all others, yet where the wrong done is not authorized by these powers, the common-law right of action still remained."

7. The general principle that the statute remedy, as far as it extends, is exclusive, seems to be universally adhered to in the American courts, with slight modifications, some of which are, * 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. But this seems a considerable stretch of construction, although eminently just and reasonable.

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s. c. before V. C. Wood, 2 Jur. N. S. 1132; before the Chancellor, 3 id. 221.

See the following cases cited in argument: Hole v. Barlow, 4 C. B. (N. S.), 334; Attorney-General v. The Sheffield Gas Consumers' Co., 3 De G. M. & G. 304; Same v. Nichol, 16 Vesey, 338; Wynstanley v. Lee, 2 Swanst. 333; Haines v. Taylor, 10 Beavan, 75.

7 Pettibone v. La Crosse & Milw. Railw. Co., 14 Wis. 443; Vilas v. Milw. & Miss. Railw. Co., 15 id. 233.

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* Pfeifer v. Sheboygan & Fond du Lac Railw. Co., 18 Wis. 155.

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

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§ 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, 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 * 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.

The Lord Chancellor considered that if the party had any claim for compensation it was to be procured under the statute and estimated by the sheriff's jury, and dissolved the injunction. It seems now to be settled by the decision of the House of Lords (Rickett v. Metropolitan Railway), that unless the injury is of such a nature as to be actionable aside from the statute, it will not entitle the party to compensation under the statute, and that interruption of business therefore, by making access more inconvenient, will not entitle the party to such compensation. But where the

1 East & W. I. Docks & Birmingham Junction Railw. Co. v. Gattke, 3 Mac. & Gor. 155; s. c. 3 Eng. L. & Eq. 59.

2 Law Rep. 2 H. L. 175.

works of a railway diminish the light of premises, although the pecuniary value of plaintiff's interest is not diminished, property in the neighborhood generally having advanced in price, the owner is entitled to compensation. Where the value of a house is lessened by railway works producing noise, smoke, and vibration, the party is entitled to compensation under the statute.1

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.5 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

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3 Eagle v. Charing Cross Railw., Law Rep. 2 C. P. 638. A. owned a house on a highway; a railway company, under powers given them by statute, made an embankment on the highway opposite the house, thereby narrowing the road from fifty to thirty-three feet, thus materially diminishing the value of the house for sale or letting, and obstructing the access of light and air. Held, 1. That A. had sustained particular damage from the works; 2. That the damage would have been actionable if not authorized by statute; 3. That the injury done was an injury to A.'s estate, and not a mere injury to A. personally or to his trade; and that, these three things concurring, A. was entitled to compensation under stat. 8 Vict. cc. 18, 20. Beckett v. Midland Railw., Law Rep. 3 C. P. 82. Brand v. Hammersmith & City Railw., L. R., 2 Q. B. 223.

5 Moore v. Great Southern & Western Railw. Co., 10 Ir. Com. Law Rep. 46, in Exch. Chamber 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., 2 B. & S. 617; s. c. 3 B. & S. 768; 8 Jur. N. S. 935. 6 New River Co. v. Johnson, 2 Ellis & Ellis, 435; s. c. 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.

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 * 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. But the charter of a railway company having authorized them to make certain specified erections between the channels 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.9

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.10

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

7 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 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."

8 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.

10 Caledonian Railw. v. Ogilvy, 2 McQu. Ho. Lds. 229; s. c. 29 Eng. L. & Eq. 22.

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

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. 6. In one case,12 where the lessee of an inn and premises, situated near a tunnel on the company's road, claimed damages, because the vibration caused by the trains prevented his 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." 13

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 12 The London & N. W. Railw. Co. v. Bradley, 3 Mac. & Gor. 366; s. c. 6 Railw. C. 551.

643; s. c. 6 Railw. C. 656; §74, n. 7; L. & Y. Railw. v. Under most of the American

13 Hatch v. Vermont Central Railw. Co., 25 Vt. 49; s. c. 28 id. 142. 14 Lawrence v. Great N. Railw. Co., 16 Q. B. s. c. 4 Eng. L. & Eq. 265; ante, § 79, n. 6; Evans, 15 Beav. 322; s. c. 19 Eng. L. & Eq. 295. 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.

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