low the surface, from which the plaintiff's buildings had been supplied with water. 5. But it was held, that where, in the construction of a canal, with waste weirs, erected by direction, and under the inspection of the commissioners appointed to designate the route of the canal, with all the works connected therewith, and to appraise damages, the waste water, after flowing over the land of adjoining proprietors, flowed upon the land of the plantiff, and thereby greatly injured it, that he was entitled to recover damages. But the occasional flow of land by water caused by public works is to be estimated as part of the damages under the English statute.7 6 6. And where the appraisal of land damages is reduced below * Hooker v. New Haven & Northampton Co., 14 Conn. R. 146; s. c. 15 Conn. R. 312. But in such case, the owner of property overflowed by water, through the defective construction of a railway, is bound to use reasonable care, skill, and diligence, adapted to the occasion, to arrest the injury, and if he do not, notwithstanding the first fault was on the part of the company, he must be regarded as himself the cause of all damage, which he might have prevented by the use of such care, diligence, and skill. Chase v. The N. Y. Central Railw., 24 Barb. 273. The same rule was adopted by a special referee, in Lemmex v. Vermont Central Railw., in regard to damage to wool, by being exposed to rain at one of the company's stations, through the fault of the agents of the company, where the owner did not remove it, as soon after he obtained knowledge of its condition, or take as effective measures to arrest the injury as he reasonably should have done. It was held the company were only liable for such damage as necessarily resulted from their own fault, and beyond that the plaintiff must be regarded as the cause of his own loss. See also post, § 180. The assessment of compensation for land taken for a railway covers all damages, whether foreseen or not, and whether actually estimated or not, which result from the proper construction of the road. But the company are liable to an action for damages resulting to any one from the defective construction of their road. In the present case the plaintiff's meadows were injured, in consequence of the insufficient culverts in the defendant's road, there being no impediment to the construction of proper ones. Suitable bridges and culverts to convey the water across the railway, at or near the places where it naturally flows, are necessary to the proper construction of the road, except where they cannot be made, or where the expense of making them is greatly disproportionate to the interests to be preserved by them. Johnson v. At. & St. Law. Railw., 35 N. H. R. 569. 7 Ware v. Regent's Canal Co., 3 De G. & J. 212. what it otherwise would have been, by the representations of the agents of the company that the road would be constructed in a particular manner, made at the time of the appraisal to the commissioners, and which representations are not fulfilled in the actual * construction of the road, whereby the plaintiff sustained serious loss and injury, it was held, that the adjudication of the commissioners was a merger of all previous negotiations upon the subject, and that no action could be maintained for constructing the railway contrary to such representations, provided it was done in a prudent and proper manner.8 9 7. But where no part of the plaintiff's land is taken, and the statute gives all parties suffering damage by the construction of railways the right to recover, as in England, and some of the American states, and the water is drawn off from plaintiff's well upon lands adjoining the railway, he may recover. So, too, may the proprietor of a mill-pond recover damages, sustained by the construction of a railway across the same, although the dam were authorized by the legislature, upon a navigable river; and in constructing it, the conditions of the act were not complied with.10 8. But it has been held that the appraisers are not to estimate increased damages to a land-owner in consequence of the exposure of the remaining land to fires by the company's engines.' 11 8 Butman v. Vt. C. Railw. Co., 27 Vt. R. 500. See also Railw. Co. v. Washington, 1 Rob. 67; B. & S. Railroad Co. v. Compton, 2 Gill, 20, 28; ante, § 71; Kyle v. Auburn & Roch. Railw., 2 Barb. Ch. 489. But see Wheeler v. Roch. & Sy. Railw., 12 Barb. 227, where it is held that a railway company will be enjoined from building a road-crossing at a different place from that named at the time damages were assessed. But it has been held, that it was competent for the company to show, by experts, the necessity of putting a culvert through an embankment, at a particular point, in order to preserve the work, as an answer to a claim for damages on account of the prospective obstruction of the water, and setting it back upon the land at that point, by the embankment. But it should be shown that such culvert is absolutely indispensable, before any deduction can be made on that account, unless the company are in some legal way bound to make it. The company are not estopped from proving this necessity because the plat of the location of the road does not indicate a culvert at that point. Nason v. Woonsocket Union Railw., 4 Rhode Island R. 377. Post, § 93. • Parker v. Boston & Maine Railw., 3 Cush. 107. 10 White v. South Shore Railw., 6 Cush. 412. "Sunbury & Erie Railw. v. Hummel, 27 Penn. St. 99, Lewis, Ch. J., and Nor can any common-law action be sustained for such damage unless where actual loss intervenes through the negligence of the company.11 Black, J., dissenting. The general current of authority seems to us with the minority of the court. And in Lehigh Valley Railw. v. Lazarus, 28 Penn. St. 203, the case of Yeizer, 8 Penn. St. 366, ante, n. 4, is regarded, by the reporter of that state, as overruled. But in an action of trespass against a railway company for constructing their road through plaintiff's land, and thereby preventing his cattle thriving, this latter injury is not so remote a consequence of the act charged that it may not be made a ground of claiming damage, when specially alleged in the declaration. Baltimore & Ohio R. v. Thomson, 10 Md. R. 76. If we understand the ground assumed by the court in Pennsylvania, at the present time, it is, that an injury to buildings, standing near the line of a railway, by fire from the companies' engines, when properly constructed and prudently managed, is too remote and uncertain to form an element in estimating damages to the land-owner, either when part of the land is taken, or the statute provides for damages to all persons “injuriously affected "by the company's works. We are entirely conscious of the embarrassment attending all attempts to define the class of injuries, which do, or which do not, come within the rule of legal consequential injuries, by the construction or operation of railways. But it seems important to distinguish between a railway, as one of the legitimate uses to which the proprietor of land might put it, for the purpose of private transportation, and upon which he might no doubt use locomotive steam engines, and the use of such engines upon a public railway. In the former case the land-owner would not be liable to an adjoining proprietor except for want of care, skill, or prudence in the construction or use of his engines. The same would probably be true of a public company, if the legislature did not subject them to any consequential damage resulting from the nature of their business. But where they are, as in England, and many of the American states, made liable, either as part of the price of land taken, or as a distinct ground of claim, to all consequential damage caused to the land-owner, both by the construction and operation of their road or either of them, in a prudent and proper manner, it seems difficult to escape the conclusion, that the exposure of property along the line of a railway to loss by fires communicated by the company's engines, is one of the most direct sources of consequential injury which can be imagined. It is more direct and substantial than that from noise, dirt, dust, smoke, and vibration of the soil, all which, under circumstances, have been held proper elements of damage to be considered. Perhaps none of them are absolutely grounds of giving damage in all cases. That depends very much upon the nearness of the track to the land. And other circumstances But where the track passes may perhaps deserve consideration, in many cases. directly through lands, near where buildings are already erected, it is difficult to conjecture upon what ground it could be claimed, that the increased exposure to fire was not a serious detriment to the owner. It is certain it must very seri 9. In a recent English case 12 it was held, after extended argument and careful consideration, that the owner of a house situated close to a railway, and which suffers depreciation in value from vibration and smoke, not caused by any negligent user of the railway, but being the inevitable result of the ordinary user, has no right to compensation under the English statute, or by distinct action at law. The case is put upon the ground that the legislature having legalized the use of locomotive steam engines by railway companies, adjoining proprietors must submit to the inevitable consequences of a lawful business, however inconvenient it may become; and can sustain no action for damages any more than for the exercise of any other legal business which might depreciate the value of property in the neighborhood. The English statutes are construed to give compensation only for injuries sustained by construction and not by the use of a railway. ously enhance the rate of insurance, and proportionally diminish the value of the rent, and of the buildings. As was said by Shaw, C. J., Proprietors of Locks & Canals v. Nashua & Lowell Railw., 10 Cush. 385, it is incumbent upon one who claims damage on this ground, to show that the company's track ran so near his buildings as to cause imminent and appreciable danger by fire." When it is undertaken to be decided, as a question of law, that in no case is danger from fire, by the proper use of the company's engines, to be considered in estimating land damages, it is certainly contrary to the general course of decisions upon the subject, if not to the very principle upon which such companies have been subjected to such damages as they cause to land-owners, beyond what accrues from the ordinary use of lands for building and agricultural purposes. These decisions in Pennsylvania are still maintained there, and the rule has been applied to the case of buildings where the owner is compelled to pay a higher rate of insurance in consequence of the proximity of the railway. Patten v. Northern Central Railw., 33 Penn. St. 426. It is here maintained that any claim for damages in consequence of the mere intrusion of noise and bustle upon one's seclusion is essentially anti-social, and at war with the fundamental laws of society, which we should not be inclined to question. And as to all mere conjectural or contingent advantages and disadvantages, it may well be said they are too remote to form an element in estimating land damages. Searle v. Lackawanna Railw., 33 Penn. St. 57. But we cannot admit that either of these rules has any just application to exposure to fire from the company's engines, where the danger is certain and inevitable. Post, § 82. 12 Brand v. Hammersmith & City Railw. Co., 12 Jur. N. S. 336. See also Lafayette Plank-Road Co. v. New Albany Railw. Co., 13 Ind. R. 90. SECTION XIII. Action for Consequential Damages. 1. Statute remedy for lands "injuriously af-|5. Minerals reserved. fected." 2. Without statute not liable to action. 6. Damages for taking land of railway for highway. 3. Are liable for negligence in construction, or 7. Compensation for minerals, when recover § 75. 1. The liability of railways for consequential damage to the adjoining land-owners must depend upon the provisions in * their charters, and the general laws of the state. In England railway companies are, by express statute,1 made liable to the owners of all lands "injuriously affected" by their railways. And under this statute it has been determined, that if the company do any act, which would be an actionable injury, without the protection of the special act of the legislature, they are liable under the statute. So that there, any act of a railway company amounting to a nuisance in a private person, and causing special damage to any particular land-owner, is good ground of claiming damages under this section of the statute.3 2. But in the absence of all statutory provision upon the subject, railways are not liable for necessary consequential damages to land-owners, no portion of whose land is taken, where they construct and operate their roads in a skilful and prudent manner.4 1 8 and 9 Vict. c. 8, § 68. 2 § 82. Glover v. The North Staffordshire Railw. Co., 5 Eng. L. & Eq. 335; post, • Hatch v. Vt. Central Railw. Co., 25 Vt. R. 49. See § 82, post. 4 • Monongahela Nav. Co. v. Coons, 6 Watts & S. 101; Radcliff v. The Mayor of Brooklyn, 4 Comstock, 195; Phil. & Trenton Railw. Co., 6 Wharton, 25; Seneca Road Co. v. Aub. & Roch. Railw. Co., 5 Hill (N. Y.), 170; Hatch v. Vt. Central Railw., 25 Vt. R. 49; Richardson v. Vt. Central Railw. Co., 25 Vt. R. 465. There are many other cases confirming the same general view stated in the text. Henry v. Pittsburgh & Allegheny Bridge Co., 8 Watts & Serg. 85; Canandaigua & Niagara Railw. v. Payne, 16 Barb. 273, where it is held, that in |