1906. property in the road as is required to enable them to maintain the road in a proper condition for use by the public, and no more: Coverdale Wednesbury v. Charlton (1878) 4 Q. B. D. 104; 48 L. J. Q. B. 128. The evidence is Corporation v. Lodge Holes that the whole country for some distance on each side of the road, as Colliery well as the road itself, gradually sank to a lower level. The defendants' Company (Ltd.) scheme of repair would, as Jelf J. found as a fact, have restored the road to as good and commodious a state as it was in before, though at a lower level. The new road, as made by the plaintiffs, is on a higher level than some of the adjoining land, and is inconvenient. The plaintiffs say truly that in an action in respect of stopping up an existing highway it is no defence for the wrongdoer to show that he has provided a new highway, even if it is a better highway; and that the wrongdoer's obligation in such a case is to restore the old highway. And the plaintiffs contend that the defendants are in this position in the present case. But that is not so. The highway remained the same highway after the subsidence that it was before. If that was not so the public would have had no right to pass along the highway after the subsidence. The measure of damages in the case of injury caused to private property by subsidence and the like is the depreciation in the value. of the property, and not the cost of restoring the property to its original condition: Jones v. Gooday (1841) 8 M. & W. 146; 10 L. J. Ex. 275; Hosking v. Phillips (1848) 3 Ex. 168; 18 L. J. Ex. 1; Wigsell v. Corporation of the School for Indigent Blind (1882) 8 Q. B. D. 357; 51 L. J. Q. B. 330. And it is submitted that, on the analogy of these cases, the proper measure of damages in the present case is that adopted by the learned Judge in the Court below. [They also cited Whitwham v. Westminster Brymbo Coal Co., 1896, 2 Ch. 538; 65 L. J. Ch. 741; and Smith v. Thackerah (1866) L. R. 1 C. P. 564; 35 L. J. C. P. 276. Farwell L.J. referred to Atherton v. Cheshire County Council (1896) 60 J. P. 6.] HUGO YOUNG, K.C. replied. Nov. 17. Cur. adv. vult. COLLINS M.R. read the following judgment :-This is an action brought by an authority in whom a highway is vested under section 149 of the Public Health Act, 1875, for damages against the defendant company for letting down the highway by their mining operations. It was admitted that there was a good cause of action for substantial damages, and the only question was as to the amount. The case was tried by Jelf J. at Birmingham, and on further consideration before him in London. At the trial the parties agreed to take the case before the Judge alone. The plaintiffs claimed a sum of £400 as the expense which they had actually incurred in restoring the road 1906. Wednesbury as nearly as possible to its original level, with the necessary retaining walls and fences, and the Judge has found, as indeed the defendants admitted, that "on that hypothesis £400 was a fair amount for the plaintiffs to recover." It was not suggested that the plaintiffs had acted otherwise than with perfect bona fides, and in accordance with the opinion of highly-skilled advisers, in the course they adopted, but the defendants contended, and Jelf J. adopted their contention, that the measure of damages was not what it would cost to restore the road nearly to its original level, and maintained that the highway could be made as commodious for the public as before for a sum less than £80, which they paid into Court. He held that, though the plaintiffs had a proprietary right in the road, it was confined to what was necessary to maintain the road as a highway, and, it would seem, that it did not embrace the right to claim for loss of amenities to the public or the cost of restoring them. He also held that the plaintiffs, in restoring the road, had no right to consider the probability of future subsidence, or to incur any expense in adjusting their gradients with a view to such a possibility, although subsidence continued during the execution of the repairs, and even reappeared after action brought. The learned Judge, therefore, gave judgment for the defendants. The plaintiffs now appeal. Some authorities were cited by the respondents to support the proposition that in cases of trespasses to land the measure of damage was not the cost of restoring the status quo ante, but the difference in value of the locus before and after. But those authorities, of which Jones v. Gooday (1841) 8 M. & W. 146; 10 L. J. Ex. 275 is the chief, obviously have no application to an action on the case by the person who is under an obligation, as here, to make good the mischief. The damages in such a case must clearly be, not the depreciation in value attributable to the injuria, but the cost of reparation, and the question will then be, as Jelf J. thought it must be, up to what standard of reparation is the plaintiff entitled to call upon the wrongdoer to make good the cost. Now it is clearly decided in the Court of Appeal that a highway authority in whom the soil of the road forming the approach to a bridge was not vested had the right to raise a road, which had subsided through mining operations, to its original level, and gave no right of action to frontagers in whom the soil was vested by so doing: Atherton v. Cheshire County Council (1896) 60 J. P. 6. In Burgess v. Northwich Local Board (1880) 6 Q. B. D. 264; 50 L. J. Q. B. 219, where the authority in whom the road. was vested, as here, under the Public Health Act, 1875, had raised to its former level a highway which had been caused to subside by the abstraction 1906. of salt from a bed beneath, and a question as to compensation arose between them and the frontagers, it was held that, even if more Wednesbury materials had been placed on the road than a surveyor of highways Corporation v. Lodge Holes could justify, no action of trespass could have been maintained by the Colliery plaintiffs; that the works of the defendants were done, if not strictly Company, (Ltd.) in pursuance of their duty as surveyors of highways, at all events in exercise of such powers as surveyors of highways have; and consequently that the plaintiffs were not entitled to compensation. Lopes J. makes some observations which seems to me to have an important bearing in this case. The arbitrator there had found that, though the raising of the road to the extent and in the manner described in the special case was a reasonable and prudent act on the part of the defendants, yet that such raising was not necessary to put the road in a proper state for traffic. Looking at the special case it appears that the facts which made it reasonable and prudent were that there was reason to expect continual subsidence, with the result that the trouble caused by flood water collecting in the lower parts of the road would increase, and it is to this state of facts that the observations of Lopes J. would appear to apply. He says, at p. 278 of the Law Reports:-"I am inclined to think that in determining what is the duty of the 'surveyor of highways' the floods cannot be disregarded. Having regard to the circumstances stated in the case, the defendants were doing nothing more than their duty when they restored the road to the level at which it was placed in 1870. I do not think that in so raising it they were acting under the words of the 149th section of the Public Health Act, 1875, 'may from time to time cause the soil of any such street to be raised, lowered, or altered as they may think fit,' but were acting under the words 'shall from time to time cause such streets to be repaired as occasion may require.' In fact they were performing a duty as 'surveyors of highways' They raised the road to the level at which it was placed in 1870, thinking the occasion' so 'required.'" In Tunbridge Wells Corporation v. Baird, 1896, A. C. 434, at p. 437;. 65 L. J. Q. B. 451, Lord Halsbury, L.C., says in dealing with the effect of the vesting of the street in the highway authority:-"It was thought convenient, I presume, that there should be something more than a mere easement conferred upon the local authority so that the complete vindication of the rights of the public should be preserved by the local authority, and therefore there was given to them an actual property in the street and in the materials thereof." They are therefore trustees for the public of all rights and amenities incident to their property, and are not bound to forego one jot of those rights in case of a wrongdoer or to accept at his dictation anything different from that which they have theretofore held as such trustees for the public, still less where they are advised by competent ... 1906. Wednesbury Corporation v. Lodge Holes Colliery Company (Ltd.) persons that the thing substituted will not be a complete equivalent and will involve the risk of large additional expense. What right has the wrongdoer acquired by reason of his wrong to impose his views on the trustees responsible to the public for the execution of their trust, and why should the opinion of experts advising in his interests only be allowed to prevail against that of those who have nothing but the public interest to consider? As to the absolute discretion of trustees as to the mode of repairing, see the recent case before Joyce J. of AttorneyGeneral v. Staffordshire County Council, 1905, 1 Ch. 336; 3 L. G. R. 379; 74 L. J. Ch. 153, and the cases there cited. In my opinion the rights of the plaintiffs in this case, so far from being less than those of a private owner, are at least as high, with this addition, that as trustees they have not the absolute right to renounce them that a private owner would have. In Newcastle (Duke of) v. Broxtowe Hundred (1832) 4 B. & Ad. 273; 2 L. J. M. C. 47, an action under 7 & 8 Geo. IV. c. 31, for damages for the demolition of Nottingham Castle by a mob, it was held that, under section 2, which directs that full compensation should be yielded to the persons damnified, the true question was, "What will replace the house in the situation and state in which it was at the time of the outrage committed, as nearly as practicable?" The jury had in fact given a verdict for £21,000, which was the amount named by one of the expert witnesses as the cost of restoration. Referring to this, Parke J. in delivering the judgment of the Court, says in continuation of the passage cited :-" There seems every reason to believe that the jury have acted on this principle; and, if so, they have done rightly." If the standard of compensation for the wrong done in this case is the same as that given by the statute in cases falling within it, it follows that the true measure here is the cost of restoration, unless the authority are in a worse position than a private owner. For the reasons I have given I think they are not. And I can see no reason why they should be bound to accept anything less than full compensation, though their remedy is one given by the common law and not by statute. Therefore, with the greatest respect to Jelf J. I think he has applied a wrong standard in measuring the damages, and that his judgment must be reversed, and instead thereof judgment entered for the plaintiffs for £400 damages, less the sum paid into Court by the defendants, with costs here and below. COZENS-HARDY L.J. read the following judgment:-In this case the highway, which is vested in the plaintiffs under section 149 of the Public Health Act, 1875, has been let down by reason of the mineral workings of the defendants. The subsidence has not been uniform, but, in addition to actual damage to the surface of the road in the 1906. shape of cracks, there has been produced a series of undulations, the result of which was that water could not get away from the road in the Wednesbury manner in which it formerly did. The plaintiffs, acting under the Corporation v. Lodge Holes advice of their surveyors and other skilled persons, have restored the Colliery road substantially to its original position, thus raising it in some places Company (Ltd.) three or four feet above the present level of the adjoining land, and have sued the defendants for damages. The plaintiffs claim the cost incurred in thus raising the road. The defendants admitted liability for the subsidence due to their workings, but alleged that they were not bound to pay more than such a sum as would be required to make the road at its reduced level reasonably safe and as convenient as formerly for traffic, with reasonable facilities for getting rid of water. Jelf J. has held that the defendants' view is correct, and that the sum of £80 paid into Court by the defendants was sufficient. The plaintiffs have appealed, and claim £400, which is agreed to be the cost incurred in replacing the road. It is, I think, important to remember that the defendants have committed a public nuisance, which might have been the subject of an indictment. "One convicted of a nuisance done to the King's highway may be commanded by the judgment to remove the nuisance at his own costs": see Hawkins's Pleas of the Crown, Bk. I. c. 32, s. 15; and indeed where the nuisance to the highway is continuing and of a permanent nature judgment of prostration seems to have been formerly the regular form: see Rex v. Pappineau (1725) 2 Str. 686; Rex v. Incledon (1810) 13 East. 164. No question of damages could arise upon an indictment, and I only refer to the authorities relating to indictments in so far as they tend to show that, for the protection of the public, the law recognised that complete restoration of the highway to its original condition ought to be exacted from the wrongdoer. This, however, is not an indictment, but it is an action by the road. authority, in whom the road is vested, against mine owners, who by virtue of section 27 of the Highways and Locomotives (Amendment) Act, 1878, have a right to work mines and minerals under the road, "but so nevertheless that in such working and getting no damage shall be done to the road or highway." Although the road is vested in the plaintiffs as the road authority for some purposes only: see Coverdale v. Charlton (1878) 4 Q. B. D. 104; 48 L. J. Q. B. 128, I think it is plain that they have a sufficient interest to maintain this action without the Attorney-General being a party. In the ordinary case of a landowner, whose surface is let down by reason of mineral workings, the measure of damages is the diminution in the selling value, and not the cost of replacement or abatement: see Tunnicliffe and Hampson, Limited v. West Leigh Colliery Co., 1906, 2 Ch. 22; 75 L. J. Ch. 512, E |