subsequent part of this section expresses,) for "making, &c., the railway" generally extend to the purpose of making a station. Where a company arched over certain streets, for the purpose of building a station, an injunction restraining them was dissolved by the Court of Exchequer, on the ground that what they had done was necessary for their station. Attorney General v. The Eastern Counties Railway Company, and Northern and Eastern Railway Company, 2 Railway Cases, 823. The following cases will illustrate, to some extent, what the Courts will or will not consider a legitimate exercise of powers conferred on companies by clauses similar to this. A company were entrusted with the general powers conferred by this section, and in particular, with a power to cross a certain canal, and to make an embankment over a valley near it. They were restricted, in subsequent clauses from doing any thing to impede the navigation of the canal, and compelled to construct any bridge for carrying the railway over the canal, of a certain height and dimension. They erected a temporary bridge over the canal, to transport earth across it for their embankment, by means of piles driven into the bed of the canal, and, it would seem, otherwise in contravention of the clause relating to bridges, although, as was admitted, without doing any actual damage to the canal. It was held, by the Master of the Rolls, that the clause empowering the company to cross canals, &c., in the progress of their works was not restricted by the subsequent clauses, which applied to permanent bridges. With reference to the general powers conferred on the company," to do all acts requisite for making, maintaining, altering, repairing, or using the railway," his Honor observed, "The question is, not whether the railway company can get the earth (for the embankment,) elsewhere, but whether it is not convenient that they should get it from the place in question; they are the best judges of that; and the act makes them the best judges of it." London and Birmingham Railway Company v. The Grand Junction Canal Company, 1 Railway Cases, 224, and see the Attorney General v. The Eastern Counties Railway Company, 3 Railway Cases, 337. The Manchester and Leeds Railway Act conferred general powers similarly to this clause, but subsequently directed that the Aire and Calder Navigation should be crossed at one place by a bridge of certain dimensions. The company having commenced the building of a permanent bridge, erected a temporary one adjoining it of the prescribed dimensions, which they used partly for building that bridge, and partly for conveying earth and materials across the river. It was held by Baron Alderson, who dissolved an injunction obtained ex parte, that the company had a right in the bona fide exercise of their powers to erect such a temporary bridge for the purpose of facilitating the erection of a permanent one; that supposing the mere purpose of conveying earth across the

river would not have been a sufficient one to authorize the construction of the bridge, yet, being constructed it might be used for that purpose, provided thereby no damage was done to the navigation, and the bridge was not continued longer than the purpose for which it would have been erected, made necessary, and that a company acting bona fide are generally the best judges of the things necessary for constructing their works. Priestley v. The Manchester and Leeds Railway Company, 2 Railway Cases, 137.

A railway company proposed to cross a mill-stream by a bridge six feet above the level of the water, to be supported by two piles sixteen feet apart. The owner of the mill (the plaintiff) asserted, that that height was insufficient for barges passing under, that the piles would impede the flow of water and the working of the mill. The company adduced affidavits of engineers to show that the level of the railway and the nature of the ground, prevented them from making the bridge of a greater height; that over a public navigable river, connected with the mill stream there were some bridges only six feet high; that, moreover, at the time of passing this act, there was a bridge over that same stream of that height, which, however, had been pulled down and re-erected higher by the plaintiff; and that the flow of water would not be impeded by the piles. The plaintiff adduced affidavits of engineers to shew that, although some of the bridges over the navigable river were only six feet high, the water under them could be lowered by water gates. That to obtain a perfect level on the line of railway, the embankment, and consequently the bridge over the mill-stream ought to be raised two feet. On these affidavits it was held by the Vice Chancellor that the company had a right to construct the bridge as was proposed, the Lord Chancellor however referred the case to the arbitration of an engineer, remarking that nothing but necessity could justify the company in carrying on their works in such a manner or on such a level, as would cause serious damage to the owner of the land. Manser v. The Northern and Eastern Counties Railway Company, 2 Railway Cases, 38. See Coates v. Clarence Railway Company, 1 Russ and My. 181.

Where however a company having the usual judicial powers, purchased a private wharf separated from one of their terminus stations by a turnpike road, and proceeded to lay down stone blocks on the road, so as to form two runs or stone ways level with the road, for the purpose of facilitating the passage of goods from the wharf across the road to the station, it was held that they were not authorized to interfere with the road in such a manner. London and Brighton Railway Company v. Cooper, 2 Railway Cases, 312.

(c) They may alter the course of any river, &c.] Under an act which gave power to divert rivers, watercourses, &c., a

company had raised the level of a brook, into which the sough of a coal mine had been accustomed to empty itself, and thereby caused the water of the brook to flow into the sough, and inundate and stop the coal works: upon the owner of them applying for a mandamus for a jury to ascertain and compensate him for the injury thus done to his works, which was opposed by the company, on the ground, that on the claimant's remonstrance they had restored the brook to its former level, and that no damage had been done by the alteration, such stoppages, having been frequently caused by floods before; it was held by the Court of Queen's Bench that it was a question for a jury to ascertain whether any damage had been done to the claimant, and that his alleging that he was injured by the diverting (i. e. altering the level) of the brook, was sufficient to induce the Court to grant a mandamus. And that if damage be done partly under the powers of the statute and partly not, a mandamus, and not an action at law, is the proper remedy for such lawful acts.

Reg. v. North Midland Railway Company, 2 Railway Cases, 1; see also Illingworth v. The Manchester and Leeds Railway Company, 2 Railway Cases, 187.

If in the course of their works the company make excavations, endangering houses or buildings, an injunction will be granted restraining them. Warburton v. The London and Blackwall Railway Company, 1 Railway Cases, 558.

(d) Shall do as little damage as can be, and shall make full satisfaction, &c.] This seems the proper place to discuss :1st, For what kind of damage a railway company will be answerable; 2ndly, in what cases the party complaining has his remedy at law; 3rdly, in what he has his remedy under the compensation clauses, and lastly, when these remedies may be

concurrent.

1st. A railway company is not liable in any way for such damage, as is the necessary and immediate consequence of the powers conferred upon it by the Legislature, unless they be extraordinarily unreasonable, and for which the Legislature has not directed that compensation shall be made.

In one of the earliest reported railway cases, it appears that a railway was so constructed by authority of Parliament, as to run parallel to and sometimes within five yards of a highway, and the company were authorized to use locomotive engines upon it. An indictment being preferred against them on account of the nuisance to passengers on the highway, created by the engines frightening the horses, it was held not to be sustainable on the above grounds, viz., that the nuisance was an unavoidable consequence of the provisions of the act of Parliament, and that these provisions were not very unreasonable. Rex v. Pease, 4 B. & Ad. 30. The particular nuisance here complained of is now wisely obviated by provisions in every act; the case of

the King v. Pease is not, however, the worse authority for the position above stated.

2ndly. Where damage of any description arises through any negligence or tortious act on the part of the company, the remedy is at law, and generally at common law.

Where the plaintiff applied for an injunction to restrain a company from erecting ovens near his premises, complaining of the nuisance and danger of fire arising from them, and the company replied that the ovens were necessary for making coke to work their locomotive engines, and carrying on their business generally, the Lord Chancellor dissolved an injunction which had been granted by the Vice Chancellor, on the ground that the plaintiff might have had his remedy by action at common law. Semple v. London and Birmingham Railway Company, 1 Railway Cases, 120. This case is obviously distinguishable from the last, in as far as it did not appear but that the company might have erected their ovens elsewhere, or some other way, so as not to have produced the damage complained of; whereas, in the former case, the locomotives could not have been used in any other place or manner than they were.

In a recent action brought against the Great Western Railway Company, the declaration alleged, that through the negligence and improper management of the engine, on the part of the servants of the company, fire and coals fell upon the stack of the plaintiff, in a field adjoining the railway, to which the company pleaded not guilty, and a special case was stated for the opinion of the Court, by order of a judge, under the 3 & 4 Wm. 4, c. 42, s. 25, in which it appeared that the stack was eleven yards from the rails of the railway, and that the engines and boilers used upon the railway were of the ordinary description, and were used, at the time of the occurrence in question, in the ordinary manner, it was held, that, upon the facts stated, there was evidence to go to a jury of carelessness of the defendants, and that the defendants were not entitled to a nonsuit; in this case, Tindal, C. J., says, "I am not prepared to say, in favour of the defendants, that they would be entitled to nonsuit the plaintiff upon such a state of facts being proved as is here disclosed, for I cannot say that the very circumstance of igneous matter being thrown out of an engine might not form of itself an ingredient of carelessness of which the jury might be called upon to judge." Maule J., "I think it clear that the plaintiff ought not to be nonsuited, because there is evidence for the jury as to the negligence of the defendants." Aldridge v. The Great Western Railway Company, 1 Dowl. N. S. 247.

At the last assizes held at Maidstone, damages were recovered in two actions, under nearly similar circumstances. Although the rule is undubitable that in no case will the jury be directed to find for the plaintiff, unless some negligence is attributable to the company, it is extremely possible that the

Courts will consider many acts and omissions to constitute negligence which are not ordinarily supposed to do so. Chief Justice Tindal throws out that possibly the escape of any igneous matter from the engine may be a consequence of carelessness-suppose it should appear that the escape of any igneous matter might be prevented by a tissue of wire gauze but that the steam power required and consequently the expense would be greater-quære, would the omission of such wire gauze be held an act of carelessness? See Davis v. London and Blackwall Railway Company, 2 Railway Cases, 308; 1 M. & G. 799. Warburton v. The same, 1 Railway Cases, 564. Reg. v. London and Southampton Railway Company, 3 Railway Cases, 34. Reg. v. Scott, 3 Q. B. 543. Smith v. Shaw, 10 B. & C. 284. In the most recent action for this cause, the evidence was that shortly after the engine had passed near to the building, the latter was observed to be on fire, that sparks had been seen on various occasions to be emitted by the engines, that the emission of sparks depended on the rate at which the engines were impelled, having reference to their power, and that there were modes by which it could be prevented. It was held that this evidence showed a prima facie case of negligence for which the company were responsible. Piggot v. The Eastern Counties Railway Company. 10 Jurist, 571.

In addition to damage wilful or negligent, all damage not done in pursuance of the powers of the act with the exception of one class of cases which will be noticed hereafter, is the province of courts of law or equity-commonly of the former, courts of equity only interfering to stay damage which would be irreparable, and generally where courts of law have not sufficient powers to afford redress. Thus, where a company were empowered to pull down certain houses, &c. scheduled, and compensation clauses were added for persons" damaged or injured by the taking down of any of the messuages or buildings for the purposes or otherwise in the execution of the act ;" it was held that a person damaged by the taking down of a house not mentioned in the schedule, was entitled to no com

pensation under the act. Rex v. Hungerford Market Company, 3 N. & M. 622. It had been previously held that the same company were not liable under the compensation clauses for damage done by removing a party wall between premises purchased by the company pursuant to their act, and the house of the plaintiff, after a notice given under the building act. Rex v. Hungerford Market Company, 2 N. & M. 340.

3rdly. Where damage is unavoidably done in pursuance of the powers of the act, the complaining party is bound to come in under the compensation clauses, and where damage be done partly in pursuance of the power of the act, and partly not, an action will not lie, at least for such part of the damage as is authorized by the act. Reg. v. North Midland Railway Com