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legal power in the State. In other words "no action will lie for doing that which the Legislature has authorized, if it be done without negligence, although it does occasion damage to any one." The meaning of the qualification will appear immediately. Subject thereto, "the remedy of the party who suffers the loss is confined to recovering such compensation" (if any)" as the Legislature has thought fit to give him" (d). Instead of the ordinary question whether a wrong has been done, there can only be a question whether the special power which has been exercised is coupled, by the same authority that created it, with a special duty to make compensation for incidental damage. The authorities on this subject are voluminous and discursive, and exhibit notable differences of opinion. Those differences, however, turn chiefly on the application of admitted principles to particular facts, and on the construction of particular enactments. Thus it has been disputed whether the compensation given by statute to persons who are injuriously affected" by authorized railway works, and by the same statutes deprived of their common-law rights of action, was or was not co-extensive with the rights of action expressly or by implication taken away; and it has been decided, though not without doubts and weighty dissent, that in some cases a party who has suffered material loss is left without either ordinary or special remedy (e).

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No action for unavoidable damage. Apart from the question of statutory compensation, it is settled that no

(d) Lord Blackburn, Geddis v. Proprietors of Bann Reservoir (1878), 3 App. Ca. at p. 455; Caledonian R. Co. v. Walker's Trustees, (1882), 7 App. Ca. at

p. 293; Mersey Docks Trustees v. Gibbs (1864-6), L. R. 1 H. L. at p. 112.

(e) Hammersmith R. Co. v. Brand (1869), L. R. 4 H. L. 171, 38 L. J. Q. B. 265.

No action for unavoidable damage. There are numerous American railroad cases agreeing with the text. See Pennsylvania Co. etc. v. Pennsylvania S. V. R. Co., 151 Pa. St. 334; 25 At. Rep. 107; 31 W. N. C. 30; Abbott v. Kansas City etc. R. Co., 83 Mo. 271; Dooley Block v. Salt Lake

action can be maintained for loss or inconvenience which is the necessary consequence of an authorized thing being done in an authorized manner. A person dwelling near a railway constructed under the authority of Parliament for the purpose of being worked by locomotive engines cannot complain of the noise and vibration caused by trains passing and repassing in the ordinary course of traffic, however unpleasant he may find it (ƒ); nor of damage caused by the escape of sparks from the engines, if the company has used due caution to prevent such escape so far as practicable (g). So, where a corporation is empowered to make a river navigable, it does not thereby become bound to keep the bed of the river clear beyond what is required for navigation, though an incidental result of the navigation works may be the growth of weeds and accumulation of silt to the prejudice of riparian owners (h).

(f) Hammersmith R. Co. v. Brand, last note, confirming and extending Rev v. Pease (1832), 4 B. & Ad. 30, where certain members and servants of the Stockton and Darlington Railway Company were indicted for a nuisance to persons using a high road near and parallel to the railway. Lord Bramwell must have forgotten his authority when he said in the Court of Appeal that Rex v. Pease was wrongly decided (5 Q. B. D. 601).

(g) Vaughan v. Taff Vale R. Co. (1860), Ex. Ch. 5 H. & N. 679, 29 L. J. Ex. 247. See below in Ch. XII. So of noise made by pumps in the authorized sinking of a shaft near a man's land or house: Harrison v. Southwark and Vauxhall Water Co., ’91, 2 Ch. 409, 60 L. J. Ch. 630.

(h) Cracknell v. Corporation of Thetford (1869), L. R. 4 C. P. 629, 38 L. J. C. P. 353, decided partly on the ground that the corporation were not even entitled

Rapids Transit Co. (Utah), 33 Pac. Rep. 229; Dean v. Ann Arbor St. Ry. Co., 93 Mich. 330; 53 N. W. Rep. 396; Jones v. Erie & W. V. R. Co., 151 Pa. St. 30; 25 At. Rep. 134; 31 W. C. 1; Kansas N. & D. Ry. Co. v. Mahler, 45 Kan. 565; 26 Pac. Rep. 22; Finch v. Riverside & A. Ry. Co., 87 Cal. 597; 25 Pac. Rep. 765; Ransom v. Citizens' Ry. Co., 104 Mo. 375; 16 S. W. Rep. 416.

In Hamilton v. Vicksburg etc. R. Co. (119 U. S. 280; affirming Escauba v. Chicago, 107 U. S. 678) it was held, that where the building of a bridge authorized by law was delayed by unusual rains and the work thus unavoidably prolonged, plaintiff, whose vessel was thereby prevented from passing beyond the bridge, suffered damnum absque injuria. See Cardwell v. American Bridge Co., 113 U. S. 205; Losee v. Buchanan, 51 N. Y. 484; 10 Am. Rep. 623; Mills v. United States, 46 Fed. Rep. 738; Kansas City, etc. R. Co. v. St. Joseph Terminal R. Co., 97 Mo. 457; 10 S. W. Rep. 826.

Care and caution required in exercise of discretionary powers. But in order to secure this immunity the powers conferred by the Legislature must be exercised without

to enter on land which did not belong to them to remove weeds, &c., for any purposes beyond those of the navigation. A rather similar case, but decided the other way in the last resort on the con

struction of the particular statute there in question, is Geddis v. Proprietors of Baun Reservoir, 3 App. Ca. 430. Cracknell's case seems just on the line; cp. Biscoe v. G. E. R. Co. below.

Care and caution required in exercise of discretionary powers. It is a settled principle that in the exercise of authority granted by law due care must be used, and that negligence or excess therein invokes responsibility for the results. Krug v. Burrough of Mary, 152 Pa. St. 30; 25 At. Rep. 161; Id. 152 Pa. St. 37; 25 At. Rep. 162; Martin v. Chicago, etc., 47 Mo. App. 452; Leavenworth, N. & S. Ry. Co. v. Curtan (Kan.), 33 Pac. Rep. 297; McNulta v. Ralston, 5 Ohio Cir. Ct. Rep. 330; Griffin v. Shreveport & A. R. Co., 41 La. An. 808; 6 So. Rep. 624; Pennsylvania S. V. R. Co. v. Walsh, 124 Pa. St. 544; 17 At. Rep. 23 W. N. C. 421; City of Durango v. Luttrell (Col.), 31 Pac. Rep. 853; City of Bloomington v. Chicago & A. R. Co., 134 Ill. 451; 26 N. E. Rep. 366; Rockwood v. Wilson, 11 Cush. 221; Burcky v. Town of Lake, 30 Ill. App. 23; Georgetown etc. R. Co. v. Doyle, 9 Col. 549; 30 Am. & Eng. R. Cas. 231; Brewer v. Boston etc. R. Co., 113 Mass. 52; Gudger v. Western etc. R. Co., 87 N. C. 325; 19 Am. & Eng. R. Cas. 144; Hazen v. Boston etc. Co., 2 Gray, 574; Memphis etc. R. Co. v. Hicks, 5 Sneed (Tenn.), 427; Lake Shore etc. R. Co. v. Hutchins, 37 Ohio St. 282; 4 Am. & Eng. R. Cas. 219; Cairo etc. R. Co. v. Worsley, 85 Ill. 37C; Brown v. Cayuga etc. R. Co., 12 N. Y. 486; Shaw v. New York etc. R. Co., 150 Mass. 182; 41 Am. & Eng. R. Cas. 547.

A municipality is liable for the removal of latteral support when the result is apparent and could have been prevented. Parke v. City of Seattle, 5 Wash. St. 1; 31 Pac. Rep. 310; Stearns v. City of Richmond, 88 Va. 992; 14 S. E. Rep. 847; Nichols v. City of Duluth, 40 Minn. 389; 42 N. W. Rep. 84; McCullough v. St. Paul, M. & M. Ry. Co. (Minn.), 53 N. W. Rep. 802.

For damage resulting from the proper execution of lawful authority no action lies. Sedalia Gaslight Co. v. Mercer, 48 Mo. App. 644; Beseman v. Pennsylvania R. Co., 42 N. J. L. 221; 20 At. Rep. 169; Durand v. Borough of Ansonia, 57 Conn. 70; 17 At. Rep. 283; Iron Mountain R. Co. v. Bingham, 3 Pick. (Tenn.) 522; 11 S. W. Rep. 705; Bell v. Norfolk S. R. Co., 110 N. C. 21; 7 S. E. Rep. 767; Jones v. St. Louis etc. Ry. Co., 84 Mo. 151; Slattern v. Des Moines etc. R. Co., 29 Ia. 154; 4 Am. Rep. 205; Richardson v. Vermont etc. R. Co. 25 Vt. 465; 60 Am. Dec. 283; Ellis v. Iowa City, 29 Ia. 229; Hatch v. Vermont Cent. R. Co., 29 Vt. 49; Dodge v. Essex Co., 3 Metc. 380.

negligence, or, as it is perhaps better expressed, with judgment and caution (i). For damage which could not have been avoided by any reasonably practicable care on the part of those who are authorized to exercise the power, there is no right of action. But they must not do needless harm; and if they do, it is a wrong against which the ordinary remedies are available. If an authorized railway comes near my house, and disturbs me by the noise and vibration of the trains, it may be a hardship to me, but it is no wrong. For the railway was authorized and made in order that trains might be run upon it, and without noise and vibration trains cannot be run at all. But if the company makes a cutting, for example, so as to put my house in danger of falling, I shall have my action; for they need not bring down my house to make their cutting. They can provide support for the house, or otherwise conduct their works more carefully. "When the company can construct its works without injury to private rights, it is in general bound to do so " (k). Hence there is a material distinction between cases where the Legislature "directs that a thing shall at all events be done" (1), and those where it only gives a discretionary power with choice of times and places. Where a discretion is given, it must be exercised with regard to the common rights of others. A public body which is by statute empowered to set up hospitals within a certain area, but not empowered to set up a hospital on any specified site, or required to set up any hospital at all, is not protected from liability if a hospital established under this power is a nuisance to the neighbors (m). And even where a particular thing is required to be done, the burden of proof is on the person who has to do it to show that it cannot be done without

(i) Per Lord Truro, L. & N. W. R. Co. v. Bradley (1851), 3 Mac. & G. at p. 341. (k) Biscoe v. G. E. R. Co. (1873), 16 Eq.

(7) 6 App. Ca. 203.

(m) Metropolitan Asylum District v. Hill (1881), 6 App. Ca. 193.

creating a nuisance (n). A railway company is authorized to acquire land within specified limits, and on any part of that land to erect workshops. This does not justify the company, as against a particular householder, in building workshops so situated (though within the authorized limits) that the smoke from them is a nuisance to him in the occupation of his house (o). But a statutory power to carry cattle by railway, and provide station yards and other buildings for the reception of cattle and other things to be carried (without specification of particular places or times) is incidental to the general purposes for which the railway was authorized, and the use of a piece of land as a cattle yard under this power, though such as would be a nuisance at common law, does not give any right of action to adjoining occupiers (p). Such a case falls within the principle not of Metropolitan Asylum District v. Hill, but of Rex v. Pease.

A gas company was authorized by statute to have its pipes laid under certain streets, and was required to supply gas to the inhabitants. The vestry, being charged by statute with the repair of the streets, but not required or authorized to use any special means, used steam rollers of such weight that the company's pipes were often broken or injured by the resulting pressure through the soil. It was held that, even if the use of such rollers was in itself the best way of repairing the streets in the interest of the ratepayers and the public, the act of the vestry was wrongful as against the gas company, and was properly restrained by injunction (q).

(n) Attorney-General v Gaslight and Coke Co. (1877), 7 Ch. D. 217, 221, 47 L. J. Ch. 534.

(o) Rajmohun Bose v. East India R. Co. (High Court, Calcutta), 10 Ben. L. R. 241. Qu. whether this be consistent with the case next cited.

(p) London and Brighton R. Co. v. Truman (1885), 11 App. Ca. 45, 55 L. J.

Ch. 354, reversing the decision of the
Court of Appeal, 29 Ch. Div. 89.

(g) Gas Light and Coke Co. v. Vestry of St. Mary Abbott's (1885), 15 Q. B. Div. 1, 54 L. J. Q. B. 414. The Court also relied, but only by way of confirmation, on certain special Acts dealing with the relations between the vestry and the company. See 15 Q. B. D. at p. 6.

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