* 3. But if the railways are guilty of imprudence, or want of skill, either in the construction or use of their road, they are jury to a mill upon another lot of the same land-owner, in consequence of the construction and operation of the railway, is a matter with which the commissioners have nothing to do in estimating damages for land. So in Troy & Boston Railw. v. Northern Turnpike, 16 Barb. 100, it was held that the consideration that the business of a turnpike, which claimed damage, would be diminished by the construction of the railway along the same line of travel, should be disregarded in estimating damage to such turnpike. "Every public improvement,” say the court, "must affect some property favorably, and some unfavorably, from the necessity of the case. When this effect is merely consequential the injury is damnum absque injuria. Though their property has undoubtedly depreciated by the construction of the railway, yet the turnpike company enjoy all the rights and privileges secured to them by their charter, and no vested rights have been violated."

Nor is one entitled to damage, in consequence of a highway being laid upon his line, thus compelling him to maintain the whole fence. Kennett's Petition, 4 Foster, 139. In Albany Northern Railw. v. Lansing, 16 Barb. 68, it is said, "The commissioners, in estimating the damages, should not allow consequential and prospective damages."

In Plant v. Long Island Railw., 10 Barb. 26, it is held not to be an illegal use of a street to allow a railway track to be laid upon it, and that the temporary inconvenience to which the adjoining proprietors are subject while the work of excavation and tunnelling is going on is damnum absque injuria. So also in regård to the grade of a street having been altered, by a railway, by consent of the common council of the city of Albany, who by statute were required to assess damages to any freeholder injured thereby, and who had done so in this case, it was held that no action could be maintained against the railway. Chapman v. Albany & Sch. Railw., 10 Barb. 360; Adams v. Saratoga & Wash. Railw., 11 Barb. 414.

And in a late case in Kentucky, Wolfe v. Covington & Lexington Railw., 15 B. Monr. 404, it was held, the municipal authority of a city might lawfully alter the grade of a street, for any public purpose, without incurring any responsibility to the adjacent landholders, and might authorize the passage of a railway through the city, along the streets, and give them the power to so alter the grade of the streets, as should be requisite for that purpose, this being done at the expense of the company, and by paying damage to such adjacent proprietors as should be entitled to them. But one, who urged the laying of the road in that place, on the ground that it would benefit him, and who was thereby benefited, cannot recover damages of the company, upon the maxim, "volenti non fit injuria." A railway, when so authorized, "is not a purpresture, or encroachment upon the public property or rights.”

And where a railway company erect a fence upon land which they own in fee, for the purpose of keeping the snow off their road, they are not liable for damages sustained by the owner of land upon the opposite side of the fence, by

liable to any one suffering special damage thereby,5 as in needlessly diverting watercourses and streams, and not properly restoring them,5 whereby lands are overflowed or injured.5

4. And the remedy given by statute for taking or injuriously affecting lands is exclusive of all remedies, at common law, by action, or bill in equity, unless provided otherwise in the statute.6

the accumulation of snow, occasioned by the fence. Carson v. Western Railw., Mass. Sup. Court, 20 Law Rep. 350; s. c. 8 Gray, 423. See also Morris & Essex Railw. v. Newark, 2 Stock. Ch. 352.

And where the act complained of is the construction of an embankment, by a railway company, at the mouth of a navigable creek, in which the plaintiff has a prescriptive right of storing, landing, and rafting lumber, for the use of his saw-mill, whereby the free flow of the water is obstructed, and the plaintiff thereby deprived of the full enjoyment of his privilege, the injury is regarded as the direct and immediate consequence of the act of the company, and they are liable for the damages thereby sustained. Tinsman v. The Belvidere Delaware Railw. Co., 2 Dutcher, 148.

See also Rogers v. Kennebec & Portland Railw., 35 Me. R. 319; Burton v. Philadelphia W. & B. Railw., 4 Harr. 252; Hollister v. Union Co., 9 Conn. R. 436; Whittier v. Portland & Kennebec Railw., 38 Maine R. 26.

5 Whitcomb v. Vt. Central Railw. Co., 25 Vt. R. 69; Hooker v. N. H. & N. Y. Railw. Co., 14 Conn. R. 146; post, § 79. And there is the same liability although the lands are not situate upon the stream. Brown v. Cayuga & Susquehannah Railw., 2 Kernan, 486.

A party is liable to an action for diverting the water from a spring, which ran in a well-defined channel into a stream supplying a mill, at the suit of the millowner, notwithstanding he had permission from the owner of the land where the spring arose. Aliter if the spring spread out upon the land, having no channel. As the land-owner might drain his land, so he may give permission to others to do so. Dudden v. The Union, 1 Hurlstone & Norman, 627. See also Brown v. Illius, 27 Conn. R. 84; Robinson v. New York & Erie Railw., 27 Barb. 512; Waterman v. Conn. & Pass. Riv. Railw., 30 Vt. 610; Henry v. Vermont Central Railw., Id. 638. But in this last case it was decided that the effect of erecting a bridge in a stream upon the course of the current below was so far incapable of being known or guarded against, that there was no duty imposed upon railway companies to guard against an injury to land-owners below by a change of the current. See, also, New Albany & C. Railw. Co. v. Higman, 18 Ind. R. 77; Same v. Huff, 19 Id. 315; Colcough v. Nashville & N. W. Railw. Co., 2 Head, 171.

6 Regina v. Eastern Counties Railw., 3 Railw. C..466. But in this case the act expressly provided, that the verdict and judgment should be conclusive and binding, which most railway acts do not; but it seems questionable if this will make any difference. E. & W. I. Docks, &c. v. Gattke, 3 Eng. L. & Eq. 59; post, § 81.

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7

5. But in a late English case, the House of Lords held, that a railway company which had been condemned to pay for land, the owner reserving the minerals, were not liable to the landowner, by reason of his inability to work a mine which he had discovered under the railway. The Lord Chancellor said, "The conveyance of the surface of land gives to the grantor an implied right of support, sufficient for the object contemplated, from the soil of the grantor, adjacent as well as subjacent.”

6. And it has been held, that in estimating damages to a railway in consequence of laying a highway across land occupied by them, it is not proper to take into account the probable increase of business to the company in consequence.8

7. And where the company take land, but decline to purchase the minerals after notice from the owner of his intention to work them, pursuant to the English statute, the company is not entitled to the subjacent or adjacent support of the minerals. And where the company gave notice, under the statute, that the working of the mines was likely to injure the railway, the owner was held entitled to recover compensation which had been assessed under the statute.9

Caledonia Railw. v. Sprot, House of Lords, 39 Eng. L. & Eq. 16. But in Bradley v. New York & New H. Railw., 21 Conn. R. 294, where the defendants' charter gave them power to take land, and made them liable for all damages to any person or persons, and they excavated an adjoining lot to plaintiff's, so as to weaken the foundations of his house, and erected an embankment in the highway opposite his house, so as to obscure the light, and render it otherwise unfit for use, it was held, that this did not constitute a taking of plaintiff's land, but that defendants were liable to consequential damage under their charter.

But in the early case of the Wyrley Nav. v. Bradley, 7 East, 368, it is considered that, where the act of parliament reserved the right to dig coal to the proprietor of mines, unless the company, on notice, elected to purchase and make compensation, where the canal was damaged by the near approach of the mine, after such notice, and no compensation made, the coal-owner was not liable, although it is there said to be otherwise in case of a house, undermined by digging on the soil of the grantor. But this case seems to turn upon the reservation in the grant.

8 Boston & Maine Railw. v. County of Middlesex, 1 Allen, 324. The reservation in a deed of land to a railway company of the right to make a crossing over the land, creates an easement in the land, but does not extend such easement across the other lands of the company. Ib.

Fletcher v. Great Western Railw., 4 H. & N. 242.

And in North Eastern

§ 76. 1. The decisions are contradictory, in regard to the right of a railway company to lay its track along a common highway, without making additional compensation to land-owners adjoining such highway, and who, in the country, commonly own to the middle of the highway.

Railw. Co. v. Elliott, 1 J. & H. 145; s. c. 6 Jur. N. S. 817, it was held that the general principle, that a vendor of land sold for a particular use cannot derogate from his own grant by doing anything to prevent the land sold from being put to that use, applies to sales to railways under compulsory powers. But it was here said that this principle will not compel the vendor of land to perpetuate anything upon the portion of the land retained by him, which is merely accidental, though existing and of long standing at the date of the sale. Hence, where a railway company took land for a bridge in a mining district, where a shaft had been sunk many years before, but the working of the mines abandoned and the shaft filled with water for a long time before the taking the land, it was held that the land-owner was not precluded from draining the water and working the mine, although the effect must be to lessen the support of the bridge to some extent, by withdrawing the hydrostatic pressure upon the roof of the mine, and the consequent support of the superincumbent strata of earth.

2. In some of the early cases, upon this subject, it seems to have been considered, that, under such circumstances, the landowners were entitled to additional compensation, when the land was converted from a common carriage-way to a railway.1

1 Trustees of the Presbyterian Society in Waterloo v. The Auburn & Rochester Railw. Co., 3 Hill (N. Y.), 567. The case of Fletcher v. Auburn & Syracuse Railw. Co., 25 Wend. 462, might have been put upon the same ground, but is not. The ground assumed is, that the land-owners are entitled to consequential damage, in consequence of the new use to which the land is put, which amounts to nearly the same thing. Philadelphia & Trenton Railw., 6 Wharton, 25; Miller v. The Auburn & Syracuse Railw. Co., 6 Hill (N. Y.), 61; Mahon v. Utica & Schenectady Railw., Lalor's Supp. to Hill & Denio, 156. And in Ramsden v. The Manchester South Junction & Alt. Railw., 1 Exch. 723, the Court of Exchequer expressly decide, that a railway company has no right even to tunnel under a highway, without making previous compensation to the landowner. Seneca Road v. Auburn Railw., 5 Hill, 170; Troy v. Cheshire Railw. Co. 3 Foster, 83. But a distinction is taken between the property of adjoining land-owners in the highway or street in cities, and in the country. In the former it has been held that the fee of the streets is under the sole control of the municipal authorities, and that it is no perversion of the legitimate use of the streets to allow a railway company to lay their track upon them. Plant v. Long Island Railw. 10 Barb. 26; Adams v. Saratoga & Washington Railw., 11 Barb. 414; Chapman v. Albany & Schenectady Railw., 10 Barb. 360; Drake v. Hudson River Railw., 7 Barb. 508; Applegate v. Lexington & Ohio Railw., 8 Dana, 289; Wolfe v. Covington & Lexington Railw., 15 B. Monr. 404.

In Williams v. New York Central Railw., 18 Barb. 222, 246, the court say: "A railroad is only an improved highway, and the use of a street, by a railway, is one of the modes of enjoying a public easement." But see this case reversed, post. A general power to pass highways in the construction of a canal, or railway, has been held to include turnpikes also. Rogers v. Bradshaw, 20 Johns. 735; White River Turnpike Co. v. Vermont Central Railw., 21 Vt. R. 590. But the grant of a railway from one terminus to another, without prescribing its precise course and direction, does not, primâ facie, confer power to lay out the railway upon and along an existing highway. But it is competent for the legislature to grant such authority, either by express words, or necessary implication ; and such implication may result, either from the language of the act, or from its being shown, from an application of the act to the subject-matter, that the railway cannot, by reasonable intendment, be laid in any other line. Springfield v. Connecticut River Railw., 4 Cush. 63 ; s. c. 1 Am. Railw. C. 572. But in general, the adjoining owner of land to a highway is entitled to additional compensation, where it is put to a different and more dangerous use. And towns have an interest in highways and bridges, which will enable them to maintain an action upon the case for their obstruction or destruction, and the conversion of the materials. Troy v. Cheshire Railw., 3 Foster, 83. But the town is not liable to pay damages assessed, by the selectmen, in laying out a highway, at