It is the natural right of each of the owners of two adjacent coal mines-neither being subject to any servitude to the other-to work his own in the manner most convenient and beneficial to himself, although the natural consequence may be that some prejudice will accrue to the owner of the adjoining mine so long as that does not arise from the negligent or malicious conduct of the party. Smith v. Kenrick, 7 Man. Gr. & Scott 564, 62 Eng. Com. Law Rep. In Virginia a material change has been made by statute. 1833, 4, p. 82, c. 70; Code, p. 526, 7, c. 124, § 7, 8, 9.

ACTION

CHAPTER LXXVIII.

AGAINST A CORPORATION FOR INJURY TO PLAINTIFF'S PROPERTY ARISING FROM THE DEFENDANTS' CASTING DIRT OR STONES ON IT, OR FROM THEIR NOT KEEPING THEIR ROAD, CANAL OR DAM IN PROPER ORDER.

1. Action lies where defendants are guilty of breach of duty.

The rule of the case of Russell &c. v. Men of Devon, 2 T. R. 667, cited in chapter 79, does not prevent a man specially injured by a chartered company's breach of duty, from having a remedy against it by action. Riddle v. Prop's of Merrimac, 7 Mass. 169.

Thus when a law imposes on a navigation company the duty of keeping its canal in repair, and in consequence of its culpable neglect, in not performing this duty, the land of another is overflowed, he may maintain an action on the case to recover the damage which he has sustained by such neglect. Steel v. Western Inland Lock Navigation, 2 Johns. 286.

An action has been maintained against a turnpike company to recover the value of a horse killed by the fall of a bridge, on the defendants' road; it being considered that they were bound to bestow ordinary care and diligence in the construction and preservation of their bridges; and that the accident arose from the want of such care and diligence. Townsend v. Susquehanna Turnpike, 6 Johns. 90.

An action was maintained against the corporation of New York for negligence in constructing the dam across the Croton river (where that stream is diverted for the purpose of supplying the city of New York with water) in so unskilful a

manner that on the occasion of a freshet in the river occurring after its erection, the dam was swept away and the plaintiff's buildings and property situated below on the stream were carried off and destroyed by the passing down of the water which had been accumulated by means of the dam. Mayor &c. of New York v. Bailey &c. 2 Denio 432. Here franchises were granted to and held by the city like a private company. It was, in respect to these, subject to the responsibilities attaching to any body of persons upon whom the like franchises are conferred. Bailey v. Mayor &c. of New York, 3 Hill 539.

Persons or a company may excavate a canal on their own land but they have no right to cast the dirt or stones on the land of their neighbour, either by human agency or the force of gunpowder; if they do, they will be liable for all damages resulting therefrom. Hay v. Cohoes Co. 2 Comstock

159.

2. Where railroad company has the use of a street, whether owner of adjacent land has any right of action.

The use to which a street in a city or village is devoted, is far more extensive than the mere right of the public to pass over it. It may be used in any way which will best promote the interests of the city or village where it is located. What will so promote those interests and that business is determined by the municipal authorities to whom the control of the streets is committed. If it ever was the rule that streets could only be appropriated to the use of those who may have occasion to travel over them, either on foot or by means of animal power, it is very certain that the progress of improvement, and the exigencies of society have left such a rule far behind. Lexington & Ohio Railroad v. Applegate, 8 Dana 289; Drake &c. v. Hudson River Railroad Co. 7 Barbour 508. It has been complained of a railroad company that by the ringing of their bells, and blowing off steam and other noises, in the neighbourhood of a meeting house, on the Sabbath, and during the period of public worship, they so annoyed and molested the congregation worshipping there as greatly to depreciate the value of the house and render the same unfit for a house of religious worship. 5 Barbour 80. The action for such a cause failed in the case of The First Baptist Church v. Schenect. & Troy R. R. Co. 6 Barbour 313. When according to its charter a railroad company has made its road in a street, the grade whereof is altered by authority of the city government, no action will lie for an adjacent land owner

against the company either because of such alteration or because of noise &c., from engines and cars, run properly upon their road, in the exercise of a right which the charter gives. Chapman v. Albany & Schenect. Railroad Co. 10 Barbour 360.

CHAPTER LXXIX.

HOW FAR A MUNICIPAL CORPORATION, OR ANY TRUSTEES, COMMISSIONERS OR OTHER OFFICERS, ARE LIABLE FOR ACTS DONE IN THE EXECUTION OF A PUBLIC DUTY.

1. As to a municipal corporation.

In England an action would not lie against the inhabitants of a county for a special injury sustained by a plaintiff by reason of their neglect to repair a bridge or highway. Russell &c. v. Men of Devon. 2 T. R. 667. The reason is because the inhabitants of the county were not a corporation, and could not be sued; a difficulty which was got rid of in the case of the statutes of hue and cry, by giving a specific remedy against the hundred. 8 W. H. & G. 327.

In several of the states, their towns are on a like footing with an English county. It is so in Massachusetts, Mower v. Leicester, 9 Mass. 247; Maine, Reed v. Belfast, 20 Maine 246; Connecticut, Chidsey v. Canton, 17 Conn. 478; and New York, Morey v. Newfane, 8 Barbour 649.

It was a question in England whether the stat. 43 Geo. 3, c. 59, § 4, did not give a remedy to the injured party against the county by suing the surveyor, but it was held that it did not. McKinnon &c. v. Penson, 8 W. H. & G. 319; 9 Id. 610; 18 Eng. Law & Eq. 509; 25 Id. 457. There is no doubt, however, of the truth of the general rule, that where an indictment can be maintained against an individual or a corporation, for something done to the general damage of the public, an action will lie for a special damage thereby done to an individual, as in the ordinary case of a nuisance in the highway, by a stranger digging a trunk across it, or by the default of the person bound to repair, ratione tenure. Pollock, C. B., 8 W. H. & G. 327.

An action was maintained against the corporation of Lynn Regis for not repairing a creek, as from time immemorial they

had been used. Mayor of Lynn v. Turner, Cowp. 85. Here the liability of the corporation was by prescription; it was perhaps the very condition or terms of their charter. The principle applies where the corporation is under an engagement as between them and the crown or state. It was much discussed in Henley v. Mayor &c. of Lynn Regis; 1, in the common pleas, 5 Bingh. 91; 2, in the king's bench, 3 Barn. & Adol. 77; and 3, in the house of lords, 1 Bingh. N. C. 222. It being admitted that if the liability was by prescription, the corporation was indictable, it was shewn that if the origin of the liability was legal, it was unimportant when it took place; that where the king, for the benefit of the public, has made a certain grant, imposing certain public duties, and that grant has been accepted, the public may enforce the performance of those duties by indictment, and individuals peculiarly injured, by action.

This doctrine is approved in New York. The supreme court of that state holds that where a duty specifically enjoined upon a municipal corporation is wholly neglected by its agents, and an individual sustains injury in consequence of such neglect, the corporation are responsible notwithstanding its agents were properly selected and necessarily employed. Mayor &c. v. Furze, 3 Hill 612. In this case, sewers were constructed by the corporation under power conferred by statute. If the exercise of this power was in the first instance optional on the part of the corporation, yet having elected to act under it, they were held responsible for a complete execution. "It would," says Nelson, C. J., "be highly unjust to allow that after constructing these works the corporation might refuse to keep them in repair, and thus leave the street on which they have been placed in a worse condition than before they were put there. The owners and occupants of houses and lots in the neighbourhood having been charged with the expense of the sewers, acquired a right to the common use of them; and a corresponding duty devolved upon the corporation to keep them in proper condition and repair."

But if the sewer has never been made, an action will not lie against the city for not making it; as to that the city council has a discretion, which cannot be overhaled in a civil action. Nor will an action lie for injury from a street being made on land bounding the plaintiff's lot, when the council, in making the street, has done no more than to exercise a legal power for the public welfare. Wilson v. Mayor &c. of New

York, 1 Denio 596.

Such a case is very different from an action against the city for a damage arising from its culvert being made entirely

too small, and not skilfully constructed; it is no defence that the council acted by advice of the city surveyor, when it appears that he had no claim to the skill of a professional engineer. Having undertaken to build the culvert, they were bound to exercise such skill in the construction, and to give such sufficiency of capacity to the drain, as that it should not become a nuisance to the property of those persons who resided in the neighbourhood. Thus far the court of appeals of New York went in the case of The Rochester White Lead Co. v. City of Rochester, 3 Comstock 464. It was not necessary for it to take the extreme ground that had been taken in McCombs v. Town Council of Akron, 15 Ohio 476.

2. As to trustees, commissioners or other officers.

An action has been maintained against commissioners for so raising a pavement, as to obstruct the plaintiff's doors and windows. Leader v. Moxon &c. 2 W. Bl. 924, 3 Wils. 461. In this case the commissioners acted under an act of parliament, and did not exceed their jurisdiction, but the court thought though they had a right to pave and perhaps to raise the street, yet that they had acted in so tyrannical and oppressive a manner as to be answerable. This decision has been since approved if commissioners acting within their jurisdiction, act wantonly and oppressively, they are considered responsible to any individual for the injury they do him. Sutton v. Clarke, 1 Marsh. 439, 6 Taunt. 29, 1 Eng. Com. Law Rep. 303.

This last case was brought against one of several trustees, who had, under a turnpike act, joined in an order for cutting a drain through certain lands; a consequence of which drain, though not foreseen at the time of ordering it, was that considerable damage was done to the plaintiff's estate. It was a very different case from Leader v. Moxon: there the injury might have been avoided by doing the act in a different way; here the trustees at the time of doing the act, took every precaution to prevent injury to the surrounding land, and it was held they were not answerable.

The case of such a defendant executing a duty imposed on him by the legislature, and in its execution exercising his best skill, diligence and caution, and deriving no emolument from what he does, is altogether unlike that of an individual who not for any public purpose but for his own benefit makes an improvement ou his own land, which, although he makes it according to his best skill and diligence, and does not foresee that it will produce any injury to his neighbour, does yet pro