and employed proper materials in the work. Grote v. ter & Holyhead Railway Co. 2 W. H. & G. 251. Ches The fact of a collision between two trains belonging to the same company is prima facie evidence of negligence on their part. Skinner v. Railway Co. 5 W. H. & G. 787, 2 Eng. Law & Eq. 360. As passenger carriers, the railway company are bound to the most exact care and diligence, not only in the management of the trains and cars, but also in the structure and care of the track, and in all the subsidiary arrangements necessary to the safety of passengers. McElroy & wife v. Nashua & Lowell Railroad Co. 4 Cush. 400. In this case the damage occurred from the negligent management of a switch which was part of the defendants' road. Although provided for and attended by a servant of another railroad company, and at their expense, yet it being a part of the defendants' road, it was considered they ought not to carry passengers over it without seeing that it was rightly managed. In the supreme court of the United States, Mr. Justice Grier has said that "where carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence; and whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance or the negligence of careless agents. Any negligence in such cases may well deserve the epithet of gross." Phila. & Reading Co. v. Derby, 14 How. 486. The court has reaffirmed the same doctrine in an opinion delivered by Curtis, J. Steamboat New World &c. v. King, 16 How. 474. This case came within the act of congress of July 7, 1838, which provides (§ 13,)"that in all suits and actions against proprietors of steamboats for injury arising to persons or property from the bursting of the boiler of any steamboat, or the collapse of a flue, or other dangerous escape of steam, the fact of such bursting, collapse or injurious escape of steam shall be taken as full prima facie evidence sufficient to charge the defendant or those in his employment with negligence, until he shall shew that no negligence has been committed by him or those in his employment." 4. Whether action lies against a railway company for an injury not happening on their own road. The rule of Muschamp v. Lancaster Railway Co. 8 M. & W. 426, 429, cited ante, p. 539, is still acted on in England. There when a railway company received a parcel at Grantham to be conveyed to Cardiff, though their road only extended to Nottingham, they were held liable for its carriage between Nottingham and Cardiff. Watson v. Ambergate Co. 3 Eng. Law & Eq. 497. In the United States much doubt has been thrown on the case of Muschamp v. Lancaster Railway Co. If it was supported at all by the decision in St. John &c. v. Van Santvoord &c. 25 Wend. 660, that support was removed when the latter decision was reversed in Van Santvoord &c. v. St. John &c. 6 Hill 157. This reversal is approved by the supreme court of Vermont. Farmers & Mechanics Bank v. Champlain Transp. Co. 18 Verm. 140. That court, however, seemed to think the case of Weed &c. v. Saratoga & S. Railroad Co. 19 Wend. 534, might be reconciled with the general rule that each carrier is only bound to the end of his own route, and for a delivery to the next carrier, by the consideration that in this case there was a kind of partnership connection between the first company and the other companies constituting the entire route, and the first carriers took pay and gave a ticket through. Farmers & Mechanics Bank v. Champlain Transp. Co. 23 Verm. 410. Whether this consideration is sufficient, is by no means clear when the action is not against an individual, but against a railroad company, and the question is one of power under their charter. Penn. Del. & Md. Steam Nav. Co. v. Dandridge, 8 Gill & J. 319; East Anglian R. Co. v. Eastern Counties R. Co. 11 Com. Bench (2 J. Scott) 775, 73 Eng. Com. Law Rep. 775, 7 Eng. Law & Eq. 505. That question was discussed when a suit was brought on a special undertaking of the New York and New Haven railroad company to carry a person on their railroad from New Haven to Farmington, and thence in a stage or sleigh to Collinsville, and it was attempted to subject them for an injury suffered, not while passing over their road, but while passing in the sleigh. It was held that no such undertaking by directors or officers of a company was obligatory on the stockholders united under a specific charter, and that the action could not be maintained against the railroad company. "Their very name, as well as the location and business of their road," said Ellsworth, J., "is sufficient notice that they are not incorporated for running stages throughout the state; and no person can assume or suppose the defendants are to go beyond the appropriate business of a railroad." Hood v. New York & New Haven Railroad Co. 22 Conn. 510. CHAPTER LXXII. ACTION FOR THE DISTURBANCE OF A RIGHT OF WAY; OR FOR THE DISTURBANCE OF A FERRY FRANCHISE. 1. For disturbance of a right of way. If a right of way be once established by clear and distinct evidence of enjoyment it can be defeated only by distinct evidence of interruptions acquiesced in. Harvie v. Rogers, 3 Bligh N. S. 447. An action on the case will lie for the disturbance of it. Pennington v. Galland, 9 W. H. & G. 1. The plaintiffs owning the estate appendant to which is a right of passing, in the use of which the defendant has disturbed them, have a right to recover from him such damages as they have sustained. Cushing v. Adams, 18 Pick. 113. Though it be a passage way, over which they gave the defendant a license to build an arch, yet if in the construction thereof the defendant unreasonably, and for a longer time than was necessary, disturbed the plaintiffs in the use of the passage way, such disturbance cannot be justified under the license. S. C. It is no valid objection that the plaintiffs were not in possession during the continuance of the obstruction, if their tenant was a tenant at will; for the possession of such a tenant is the possession of the landlord. S. C. 2. For disturbance of a ferry franchise. In England, parties who are erected into a corporation for establishing a ferry have the right (as under a royal grant of the franchise of a ferry) to bring an action against any one who infringed their right (which is in the nature of a monopoly), by carrying persons from or to the same place, who otherwise, presumedly, would have gone to the ferry. Ferry Co. v. Barker, 2 W. H. & G. 148, 9. Counsel objected that the mere act of ferrying a passenger across was no disturbance of the franchise unless the franchise was not simply of a ferry but of a prescriptive ferry to the exclusion of all private boats; and he likened it to the case of a market, the grant of which franchise does not of itself imply a right to prohibit the selling in shops on a market day, Mayor of Macclesfield v. Chapman, 12 M. & W. 18, that right belonging only to immemorial markets to which a special custom to exclude such sales belongs. Morley v. Walker, 7 Barn. & Cress. 40. But the court did not assent to this distinction. "In the case of a ferry," Parke, B. said, "the act of taking across a person who would otherwise have gone by it is actionable, as the preventing a person from coming to a market to buy or sell there would be in the case of a market." The Virginia act in 2 R. C. 1819, p. 260, c. 237, § 21, influenced the decision in Trent &c. v. Cartersville Bridge Co. 11 Leigh 521. The acts of 1835, 6, p. 66, c. 91, § 1, 1838, p. 162, c. 222, 1839, 40, p. 58, c. 72, § 1, and 1840, 41, p. 91, c. 82, are, together with the act in 2 R. C. 1819, p. 260, c. 237, § 1, revised in the Code of 1849, p. 335, c. 64, 22, 23, 24, 25, 26. The courts of this state deem it unnecessary to enquire how far a ferry franchise is protected from franchise by the common law. They consider that with us the ferry franchise is the creature of statute law, and that in any particular case, the question is how far it is exclusive under the provisions of the statute. Somerville v. Wimbish, 7 Grat. 229, 30. If there be a disturbance of the enjoyment of the franchise acquired under the statute, an action will lie for such disturbance. Patrick v. Rufners, 2 Rob. 209. CHAPTER LXXIII. ACTION FOR INJURY FROM DEFENDANT'S BUILDING SO AS TO OBSTRUCT PLAINTIFF'S LIGHTS. 1. For obstructing ancient lights. Although it is a recommendation of a house that there is from it a long and large prospect, yet for disturbing merely this-being a matter only of delight and not of necessity-no action lies. It may be otherwise when a new building is erected so near another's windows as to stop his light. 9 Rep. 57 a; Attorney Gen. v. Doughty, 2 Ves. 453. When two men own land adjoining, the circumstance of one building a house with windows looking on the other's land will not prevent the other from erecting on his own land a house against those windows. Bury v. Pope, Cro. Eliz. 118, 1 Leon. 168. But in the case of an ancient house and windows, an action has been maintained for stopping the windows, when the plaintiff had acquired a right by prescription. Rep. 57 a; Ryppon v. Bowles, Cro. Jac. 373; 2 Wms. Saund. 175. The action lies to the extent of the space occupied by the window; it is actionable to prevent the light and air from passing through as formerly. Chambler v. Thompson, 3 Camp. 80. Though after judgment against a tenant for years for such a nuisance he makes an underlease, yet if the nuisance continue, a second action will lie against him. Rosewell v. Pisor, 2 Salk. 460, 6 Mod. 116, 4 T. R. 320. He continues liable so long as the consequences of his wrongful act continue. Parke, B., 7 M. & W. 460; 7 Man. Gr. & Scott 580. The exercise, against a party capable of making a grant, of a right adverse to him, being the foundation of presuming a grant from him, such presumption is not made unless there were some probable means of his knowing what was done against him. The enjoyment of the plaintiff's windows, during the occupation of the opposite premises by a tenant, though for 20 years, will not bind the landlord, if such occupation was without the landlord's knowledge. Daniel v. North, 11 East 372; Barker v. Richardson &c. 4 Barn. & Ald. 579, 6 Eng. Com. Law Rep. 523. But uninterrupted enjoyment for 20 years by the plaintiff with the defendant's knowledge raises against him a presumption of right. Cross v. Lewis, 2 Barn. & Cress. 686, 9 Eng. Com. Law Rep. 223. Bayley, J. observes, that "a person building a house, even at the extremity of his own land, may lawfully open windows looking towards the adjoining property. If his neighbour objects to them he may put up an obstruction, but that (the judge says) is his only remedy; and if he allows them to remain unobstructed for 20 years that is a sufficient foundation for the presumption of an agreement not to obstruct them." S. C. If the party who has the enjoyment of light and air by means of windows in a wall, pull down that wall and build a blank wall which he suffers to remain for a considerable time without windows, his right may be thereby destroyed, when there is nothing to shew that at the time of discontinuing the enjoyment, he meant to resume it within a reasonable time. Doing an act to shew that he abandons his right to the benefit of that light and air which he once had, he may lose his right in much less than 20 years. Moore v. Ranson, 3 Barn. & Cress. 332, 10 Eng. Com. Law Rep. 99. 2. For obstructing lights, though not ancient. If the owner of land build thereon a house with lights, and grants to another this house and the land on which it stands, and afterwards builds on a contiguous piece of land, or grants VOL. II.-43 |