PART II. CH. IX. is not diminished (). But if such access is precluded by an embankment made on a highway, under the powers of the act, and the premises are thereby permanently depreciated in value, they are injuriously affected, within section 68, and compensation may be given (). Nor can damages be given Annoyance. for a personal annoyance; as, for instance, for the personal inconvenience caused to a gentleman by a railway crossing a public road very close to the entrance to his grounds (m). On the like principle, no compensation is claimable for loss of custom to a public house by the company's pulling down neighbouring houses (n); nor for drawing off water from a well, nor for diverting water percolating through the earth (0); nor for diverting the profits of an ancient ferry by erecting a bridge near to it carrying a railway over the river (p). The converse of the proposition, that compensation may be given in all cases where an action would have lain but for the special act, is generally but not universally true (q). If a railway company block up a highway, and make a Special damage from deviation way, so that a portion of the old road is thrown obstruction of out of the general thoroughfare, and the access to a house highway. situate on that portion is rendered less convenient, and a less number of persons pass by it, and the house is less suitable for the purpose of being used as a shop, and the value of the house is thereby diminished, the lessee suffers such a special damnification above the rest of the public that he may claim compensation from the company (r). A person is entitled to compensation if the company lower or raise by many feet the level of a high road, which bounds his premises, so as to render the access to them more incon (k) Reg. v. Metropolitan Board of Works, L. R. 4 Q. B. 358. (1) McCarthy v. Metropolitan Board of Works, L. R. 8 C. P. 191, S. C. below, L. R. 7 C. P. 508. (m) Caledonian Rail. Co. v. Ogilvy, 2 Macq. 229; Chamberlain v. The West End of London and Crystal Palace Rail. Co., 32 L. J. Q. B. 173. (n) R. v. Vaughan, L. R. 4 Q. B. 190. (0) The New River Co. v. John 460 PART II. Interference with lights. Railways venient (s), or narrow the road in front of his house, so as to render the house of less value (†). It has, after much discussion, been decided in the House of Lords, that mere loss of profits to a shop by reason of the obstruction to a neighbouring highway caused by the railway works, which prevent the free access of customers, is not a ground of damage that can be taken into consideration as affecting the value of the premises (u). Notwithstanding this decision of the House of Lords in Ricket's case (r), the Court of Common Pleas have sustained an award of compensation, where the arbitrator found that the company's works had obstructed the lights of the plaintiff's house, that it was thereby rendered less convenient for his trade, but that he had sustained damage to a certain amount in his trade only, and that the saleable value of his interest in the house was not diminished (y). Interfering with ancient lights by the erection of the promoter's works is a ground of compensation under section 68 (*). A person whose house is injuriously affected by the execuClauses Act. tion of the powers of a railway company is entitled, under the Railway Clauses Consolidation Act, 1845, ss. 6, 16, to compensation for damage done to his goods in his house by the exercise of such power (a). So, where a company had darkened both ancient and modern lights, it was held that compensation might be given for the darkening of both classes (b). (s) Moore v. The Great Southern (t) Beckett v. Midland Rail. Co., (u) Ricket v. The Metropolitan Metropolitan Rail. Co., 32 L. J. (x) L. R. 2 H. L. 175, S. C. 36 L. J. Q. B. 205. (y) Eagle v. Charing Cross Rail. Co., 36 L. J. C. P. 297. (z) Bedford, Duke, v. Dawson, 44 L. J. Chanc. 549; Glasgow Union Rail. Co. v. Hunter, L. R. 2 Scotch App. 78. (a) Knock v. Metropolitan Rail. Co., L. R. 4 C. P. 131, S. C. 38 L. J. C. P. 78. (b) Gower's Walk Schools v. London, Tilbury, and Southend Rail. Co., 59 L. J. Q. B. D. 162. PART II. CH. IX. The abstraction by a waterworks company of water from a stream does not enable a riparian proprietor to require the company to treat for the purchase of his interest in the Abstraction stream, but entitles him only to compensation as for land injuriously affected (c). No action or indictment will lie for injury caused by carrying on the business of the undertaking in the absence of negligence or misconduct on the part of the company (d). But the question often has been raised whether the arbitrator may assess damages prospectively in respect of the likelihood of such injury occurring. of water. Injury from use of railway and works. Where, many years after an award had been made giving compensation, it appeared that houses had been cracked by the subsidence of the soil and otherwise injured by the constant vibration caused by the running of heavy trains, the Court of Queen's Bench refused to allow of an attempt to Damage obtain further compensation, on the ground that the probability of such damage occurring to the building was so great, that it must have been foreseen, and that it must be taken that the arbitrator on the first inquiry gave compensation for it (e). foreseen. In one instance, where it was not necessary to decide the Vibration. point, Lord Campbell, C.J., and Erle, J., intimated an opinion that an arbitrator assessing compensation under s. 68 of the Lands Clauses Act, ought to give compensation for an injury to a house from vibration caused by the running of the trains during the construction of the works; but not for injuries from vibration in working the line after the railway has been completed (f). In a more recent case, it was found that no structural Vibration, noise, and injury was or could be caused to the premises by the construc- smoke. tion of the railway, but that by reason of the working of the railway after it had been opened for traffic, the premises were and would be subjected to vibration, noise, and smoke (c) Bush v. Trowbridge Waterworks Co., L. R. 10 Ch. App. 459, S. C. 44 L. J. Ch. 645, S. C. below, L. R. 19 Eq. 291, S. C. 44 L. J. Ch. 235. (d) R. v. Pease, 4 B. & Ad. 30, S. C. 2 L. J. M. C. 26; Whitehouse v. Birmingham Canal Co., 27 L. J. Ex. 25. But see London and North Western Rail. Co. v. (e) Croft v. London and North (f) Penny v. South Eastern Rail. Co., 7 E. & B. 660, S. C. 26 L. J. Q. B. 223. PART II. Compensation when land taken. Larger elements of from passing trains, and were and would always be affected and depreciated in value thereby. It was held by the House of Lords, supporting the judgment of the Queen's Bench, and overruling that of the Exchequer Chamber, that the claimant was not entitled to compensation for injury arising from the working of the railway after its construction (g). When land is taken compulsorily by promoters under their statutory powers, the arbitrator, in assessing the compensation in respect to the value of such land, should take into account, not only the present purpose to which the land is dedicated, but also any other such beneficial purpose to which, in the course of events at no remote period, it may be applied, just as an owner might do if he were bargaining with a purchaser in the market (h). And larger elements of compensation are admissible where compensation, a person's land is taken than when it is only injuriously affected; for by section 63 of the Lands Clauses Consolidation Act, 1845, the arbitrator, in estimating the purchasemoney, is to have regard, not only to the value of the land to be purchased or taken by the promoters, "but also to the damage (if any) to be sustained by the owner of the lands by reason of the severing the lands taken from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special act." Increased risk of fire. Cutting off springs. Thus an owner of a cotton mill, part of whose land was taken for a railway, was held entitled to compensation on account of the increased risk of fire to his mill from the near passage of the railway trains (i). And though draining the underground springs of water on a person's premises by making a cutting on land outside his property affords no ground of claim against the company (k), it has been laid down that compensation might be given if the cutting were on land taken compulsorily from the claimant by the company (7). (g) Brand v. Hammersmith and (i) Stockport Rail. Co., In re, 33 L. J. Q. B. 251. () The Queen v. Metropolitan Board of Works, 3 B. & S. 710, S. C. 32 L. J. M. C. 115. (1) Buccleuch, Duke, v. Metropolitan Board of Works, L. R. 5 Ex. 221, per Blackburn, J., p. 250. PART II. CH. IX. Goodwill. When part of premises on which a business is being carried on is taken, the arbitrator in estimating the compensation may include a sum for the goodwill of the business, and may Trade profits. take the amount of trade profits as one of the elements for his consideration (m). of value of The garden of Montagu House, belonging to the Duke of Depreciation Buccleuch, had at one time a river frontage on to the Thames. house from The Metropolitan Board of Works, under their statutory substitution of highway powers, took away a causeway, part of the premises, which for river ran from the garden to low water mark in the river, and frontage. made an embankment, destined for a public road and highway, between the garden and the river. It was held in the House of Lords, affirming the judgment of the Exchequer and reversing that of the Exchequer Chamber, that the plaintiff was entitled to compensation in respect of the taking away the causeway and landing-place, and the injury arising to the house and premises by depriving him of access to the river along the whole frontage; and also for the depreciation in value of Montagu House by the conversion of the land between it and the river, along the whole frontage, into a highway, and the consequent public use of it, entailing loss of privacy and increase of dust and noise (n). other laud. Where the owner of a house and back premises, part of Land taken, but injury which back premises had been taken by a railway company, arising from claimed compensation in respect of the depreciation of his works on house by reason of the smoke and noise of trains running on land purchased from other persons in front of his house; it was decided by the House of Lords that he was not entitled to such compensation, since the injury did not arise from any works of the company on the land taken from himself, and that he consequently could only claim as for land injuriously affected under section 68, and that it had been determined in that house, in Brand v. Hammersmith and City Railway Company (o), that no compensation was maintainable in cases. under that section for depreciation in value from the vibration, noise, and smoke caused by passing trains (p). (m) Pile v. Pile, 3 Ch. D. 36. (n) Buccleuch, Duke, v. Metropolitan Board of Works, L. R. 5 App. Cases, 418, S. C. below, L. R. 3 Ex. 306, on appeal, L. R. 5 Ex. 221. (0) L. R. 4 App. Cas. 171. |