Liability at common law for negligence. Limitation of liability. In addition, however, to the duty imposed on them by statute to make compensation, companies will be held liable at common law for damage done by them through negligence or mismanagement of their works (r). In case of loss or damage to a ship or the goods, merchandise and other things on board caused without the actual fault or privity of the owners of the canal, the canal company can limit their liability to an aggregate amount not exceeding £8 per ton of the tonnage of the largest registered British ship which within five years previously has been within the area over which the owners of the canal perform any duty or exercise any power (8). Where a canal Act contained provisions for compensation, it was held that such provisions related to the due and proper management of the works, and not to their negligent management, and, therefore, did not oust the right of action against a canal company for so negligently keeping their sluices open that their canal overflowed (t). This case appears to be in conflict with a decision of Kekewich, J., where it was held that a canal company were guilty of negligence in allowing water to leak from a canal into a mill, but that where compensation is given under special provisions of an Act it must be recovered as directed by the Act, and not by action (u), and an injunction. was refused. The learned judge also held that the fact of the damage having been caused by the wrongdoing of a mine owner did not affect the case. So too, where a canal company so negligently managed a swivel bridge as to cause the death of a person passing over it, they were held liable to an action for nuisance as having a beneficial interest in the tolls, as any private person would be, and the representative of the deceased was held entitled to maintain an action against them under the Fatal Accidents Act, 1846 (x). In the last-named case, it was contended for the company that they were no more liable than the trustees of a highway would be. Martin, B., however, said: "With respect to the first point, viz., that there is no distinction between this company and the trustees of a highway, it seems to me there is a most (r) Preston v. Norfolk Rly., 2 H. & N. 735. (s) Merchant Shipping (Liability of Shipowners and others) Act, 1900 (63 & 64 Vict. c. 32). See Temperley's Merchant Shipping Acts (3rd. ed.), 453. (t) Cockburn v. Erewash Canal, 11 W. R. 34; see Rochdale Canal v. King, 14 Q. B. 102; Shand v. Henderson, 2 Dow, H. L. C. 519; 14 R. R. 202; and post, p. 310. (u) Evans v. Manchester, Sheffield and Lincolnshire Rly., 36 Ch. D. 626; 57 L. J. Ch. 153; 57 L. T. 194. (x) 9 & 10 Vict. c. 93; Manley v. St. Helens Canal, 2 H. & N. 840; see also Shoebottom v. Egerton, 18 L. T. 364, 889; Gautret v. Egerton, 36 L. J. C. P. 191; L. R. 2 Č. P. 371; 16 L. T. 17; Binks v. South Yorks Rly., 3 Bingh. 244; Lang v. Kerr, 3 A. C. 529; see also Att.-Gen. v. Bradford Narigation Co., 35 L. J. Ch. 619; L. R. 2 Eq. 71; 14 L. T. 248. obvious one. be" (y). Where, however, companies keep strictly within the terms of In the absence their Acts, they will not be held liable, either for compensation of negligence. or at common law, for injuries caused in the due execution of their works. All actions for injury caused thereby must be founded on negligence. So where a canal company discharged water from their canal into a stream, and injured certain works situated thereon, the jury having found that the canal company did all in their power under the circumstances, a verdict was directed for them, on the ground that there was no negligence (z). A canal formed under Act of Parliament had three levels, A., B. and C., and the proprietors, without authority, erected engines and pumped back water from the lowest level C. to the others. The plaintiff was possessed of a mill forge on the river Tame, into which the surplus water from C. level would flow. In 1826, the canal proprietors obtained, by means of a new Act, the right to maintain the engines, and to raise the water from one level to another, and to have reservoirs supplied from streams, making full satisfaction to all mill-owners, &c., for any damage. They were forbidden to take any water out of the river above the plaintiff's forge, and were to maintain flood weirs, so that all waste water not required should flow into the river above plaintiff's forge. The company pumped water from C., and in consequence thereof, except on extraordinary occasions, no water escaped over the weirs into the river:-Held, they were entitled to do so, and the plaintiff had no right to compensation; the water, which could be used again, and was pumped back again, not being waste water (a). (y) See Mersey Docks v. Gibbs, L. R. 1 H. L. 93; 2 H. & N. 849; Parnaby V. Lancaster Canal, 11 A. & E. 227; and see post, pp. 316 et seq. (2) Whitehouse v. Birmingham Canal, 27 L. J. Ex. 25; Mayor of King's Lynn v. Pemberton, 1 Sw. 244, 250; 18 R. R. 62. (a) Ellwell v. Birmingham Canal, 3 H. L. 812. L.W. 20 Where the Where a swing bridge over a canal crossing a public highway, when open for the passage of a barge left a gap, whereby a passerby, being on the bridge when it was dark, fell into the canal and was drowned, it was held that there being no negligence on the part of the company, and the deceased having been guilty of contributory negligence, no action would lie (b). And in the same way, a canal company was held not liable for the death of a person drowned by falling into their canal where an ancient footway was twenty-four feet distant from their towing-path, and the intermediate space between the two had become obliterated by the act of unauthorised persons; since the owner of land near a public road is not under an obligation to fence excavations in his land, unless they are substantially adjoining the road, and so near as to be dangerous (c). No action of tort will, however, lie against a canal company company have for damage done to a mine near their canal by flooding it, when they have done all in their power to prevent such flooding. done all in their power. In the case of Dunn v. Birmingham Canal Co. (d), the defendants were authorised under this Act to take land, doing as little harm as possible, and making satisfaction for all damage to any hereditaments prejudiced. The minerals under the canal were reserved to the owners, who were at liberty to work them provided no damage was done to the navigation. The owners were not to work the minerals without giving three months' notice to the defendants, who might inspect the mines and prevent the working of them, paying the owners the value. The canal having been used many years, the plaintiff gave defendants notice that he was going to work certain mines, but the defendants did not inspect, and refused to buy. Plaintiff worked his mines without negligence, but without regard to supporting the surface, and defendants did all they could to keep the canal watertight. The result of the working was that the water of the canal escaped through the cracks and flooded the plaintiff's mine, whereupon he brought his action. It was held that no action of tort would lie, though Kelly, C.B., and Piggott, B., were of opinion that the plaintiff was entitled to compensation under the Act. "Striking out the charge of negligence," said Kelly, C.B.," the defendants are charged with nothing but that they brought water into the canal near the plaintiff's mine. They had full power under the Act to bring the water where they brought it.” (b) Witherly v. Regent's Canal, 12 C. B. (N.s.) 2. (c) Binks v. South Yorks Rly., 3 Bing. 244. See Lang v. Kerr, 3 A. C. 529. (d) L. R. 8 Q. B. 42; see Evans v. Manchester L. and S. Rly. Co., 36 Ch. D. 626; 57 L. J. Ch. 153; 57 L. T. 194. how far an If, moreover, the damage be caused by circumstances over Vis major, which the company had no control, and can be proved to result from vis major, canal companies will not be held liable. A canal company placed planks across their canal, when it was threatened with an overflow from a neighbouring river, in order to keep out the flood-water from their premises. The insertion of the planks raised the water, and the flood broke into the canal higher up than the planks, and, being penned back by the planks, flooded the plaintiff's premises. It was held that the canal company (the defendants) were not liable, since the water which did the mischief was not brought there by them (e). The flood," said Bramwell, B., is a common enemy against which every man has a right to defend himself, and it would be most mischievous if the law were otherwise, for a man must then stand by and see his property destroyed out of fear lest his neighbour might say-You have caused me an injury.' The law allows what I may term a reasonable selfishness in such matters; it says, 'Let every one look out for himself and protect his own interest (f). Amphlett, B., said, "The plaintiffs cannot succeed, unless it can be shown that the canal, through what was done by the defendants, did bring a larger amount of water on to the plaintiff's premises than would have gone there if the canal had never been made, or had been previously filled up" (g). A similar principle was followed in Boughton v. Midland and Great Western Rly. Co. (h), where the defendants, who were authorised by statute to make a canal, and required to keep it in good order, preparatory to making some repairs, turned the water into a drain (made for the purpose), whence it ought to have flowed (as it did on a previous occasion) into a public sewer, but, owing to an obstruction therein, flooded the plaintiff's premises. The defendants heard of the flooding, but not of the cause, and took no steps to stop the discharge into the drain. It was held, that while acting under their statutory powers, they could not, in the absence of negligence, be made responsible for the injury, and, the jury having found that the damage was caused by the obstruction in the corporation sewer, that there was no evidence of such negligence on the part of the defendants. So in Thomas V. Birmingham Canal Co. (i), upon the occasion of an universal (e) As to this question, see further ante, Chap. III., pp. 146 et seq. (f) Nield v. London and North Western Rly. Co., L. R. 10 Ex. 4; 44 L. J. Ex. 15. (9) Nield v. London and North Western Rly. Co., L. R. 10 Ex. 4; 44 L. J. Ex. 15. (h) Ir. R. 7 C. L. 109. (1)43 L. T. 435; 49 L. J. Q. B. 851; 45 J. P. 21. excuse. Ordinary rules of construction as to convey ances binding on canal companies. rainfall unprecedented in duration and quantity for many years in the district, there was imminent peril of the defendants' canal bursting; and the defendants, in order to prevent it, raised a sluice, by which a large quantity of water escaped into a neighbouring brook, and thence into a colliery. The water having filled up this colliery flowed into some collieries of the plaintiffs and destroyed their works. It was found that if relief had not been afforded to the canal banks at this time, an inundation must have very shortly ensued, which would have equally destroyed the plaintiffs' works and also caused far greater devastation to property and probably loss of life throughout a very wide area; that the course adopted by the defendants was prudent and proper, and the only effectual measure which was possible in the emergency. It was held, that the plaintiffs' injury was due not to the defendants' wrongful acts, nor to the effect of any of the provisions of the defendants' Act of Parliament, but to vis major or an act of God, and that, as in any event the plaintiffs' works would have been equally destroyed, the immediate damage caused by the defendants' own act in raising the sluice was injuria absque damno and irrecoverable. Such acts of self-defence must, however, be done to avoid a common danger, and no one can transfer such a danger coming on to his land to the land of another (k). The terms of conveyances of land to companies are regulated in each case by the provisions of each particular Act, but the ordinary rules with respect to such contracts would appear to be binding on them (4). A local Act empowered proprietors to contract for the sale of, and sell, their lands to a canal company; and such contracts, sales, &c., were to be valid to all intents and purposes, and were to be enrolled with the clerks of the peace. Copies thereof were to be evidence; and on payment of the sums agreed on, the lands were to vest in the company. It was held that conveyances of land under the Act must be in writing (m). A canal company, empowered to purchase lands for gross sums, or rent-charges, took possession of lands of an infant on agreement with his steward, and, after an award by commissioners of the gross sum or rent-charge, such sum was paid to the steward. No person being party to his award who had power to (k) Whalley v. Yorks. and Lancs. Rly. Co., 13 Q. B. D. 131; 50 L. T. 472; · ante, p. 161. (1) As to enrolling conveyances of purchased land, see Reg. v. Leeds and Liverpool Canal Co., 11 A. & E. 316; as to limit of time for purchasing compulsorily, Tone Conservators v. Ash, 10 B. & C. 349; as to licence to take ice from a canal, see Newby v. Harrison, 4 L. T. 424. (m) Robins v. Warwick Canal, 2 Bing. N. C. 483; 42 R. R. 642; see Harborough v. Shadlow, 7 M. & W. 37. |